Excerpt from interview with Noam Chomsky arguing that Humanitarian Law Project is a “major attack” on freedom of speech in the United States,” and part of the overall “poor record” of the Obama administration in protecting free speech:

Independent news discussion of the ramifications of the decision (“Will the New York Times be liable for printing op-eds from Hamas?”), including an interview with Shayana Kadidal, counsel for the Humanitarian Law Project (“Submitting an amicus brief … could land you on the wrong side of this law”):

American Constitution Society interview of Georgetown University Law Center professor and Humanitarian Law Project counsel David Cole (“[T]hey’ve written the law so broadly that it criminalizes pure speech – the core of what the First Amendment is designed to protect”):

The Legal Information Institute at Cornell Law School’s Case Summary of Humanitarian Law Project v. Holder is now available for viewing in addition to the summary from the Center for Constitutional Rights available here.

The original article can be found here:

Issue

Whether 18 U.S.C. 2339B(a)(1), which prohibits providing certain types of aid to known terrorist organizations, violates the First and Fifth Amendments by restricting political speech and including overly vague provisions?

Facts

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Humanitarian Law Project v. Mukasey, 552 F.3d 916, 920 (9th Cir. 2009). The AEDPA permits the Secretary of State to designate an organization as a “foreign terrorist organization.” See 8 U.S.C. 1189(a). The AEDPA goes on to criminalize “knowingly provid[ing] material support or resources to a foreign terrorist organization,” including the nonviolent activities of such an organization.18 U.S.C. 2339B(a)(1); 552 F.3d at 920.

In 1997, the Secretary of State designated thirty organizations, including the Kurdistan Workers Party (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”), as foreign terrorist organizations. See 552 F.3d at 921. While both PKK and LTTE engage in terrorist activities, they also engage in activities that help Kurds living in Turkey and Tamils living in Sri Lanka engage in self-determination. See id. The Humanitarian Law Project (“HLP”) sued in federal district court, seeking a preliminary injunction against enforcement of the provision prohibiting providing “material support or resources” to PKK and LTTE. See id. Among other things, HLP wants to train PKK members on how to use humanitarian and international law to peacefully resolve disputes and provide legal services in negotiating peace agreements between LTTE and the Sri Lankan government. See id. HLP claimed that the AEDPA violated their First Amendment and Fifth Amendmentrights. See id. The district court partially granted HLP’s motion for a preliminary injunction, ruling that the government could not enforce the AEDPA prohibition on providing training and personnel to PKK and LTTE. See id. at 921–22. The Court of Appeals affirmed, holding that the Act was unconstitutionally vague with regard to its prohibitions against providing “personnel” and “training” to foreign terrorist organizations. See id. at 922.

In 2001, the USA PATRIOT Act amended the AEDPA’s definition of “material support or resources” to include “expert advice or assistance.” See 552 F.3d at 922.In a second round of litigation, the district court found this term to be unconstitutionally vague; the Court of Appeals subsequently affirmed and read a scienterrequirement into § 2339B. See id. at 922–23. Congress then passed the Intelligence Reform and Terrorism Prevention Act (“IRTPA”), which included a scienterrequirement and defined the terms “material support or resources,” “training,” and “personnel.” See id. at 923. The district court then consolidated the two cases and ruled that the terms “training” and “service” were unconstitutionally vague, as was a portion of the definition of “expert advice or assistance.” See id.at 924. The Court of Appeals affirmed the district court’s ruling, and the Supreme Court granted certiorari. See id. at 933.

Read more

Against the holding:

A Bruise on the First Amendment
“On Monday, in the first case since the Sept. 11, 2001, attacks to test free speech against the demands of national security in the age of terrorism, the ideals of an earlier time were eroded and free speech lost.”

Chewing Gum for Terrorists
“Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees”

The Supreme Court goes too far in the name of fighting terrorism
“[M]embers of the Humanitarian Law Project legally can stand on a street corner and praise the PKK for carrying out terrorist acts, but they cannot work with the PKK in an effort to stop the violence”

A Boost for Counterterrorism Powers
“Viewed in the broader context of post-9/11 government powers, this case is yet more indication not only that liberty-security balances have shifted but that the Obama administration is not likely to shift them back”

Noam Chomsky: Final Remarks, Istanbul Conference on Freedom of Speech
“Supporting the Obama administration, the far-right Court justices granted the government rights of repression that carry us back many decades”

Harmonicas and Hezbollah
“[T]he tough hypotheticals are much too easy to construct with this law—the Justices had an ocean of them—and that’s a bad sign”

Supreme Court Rules ‘Material Support’ Law Can Stand
“The government should not be in the business of criminalizing speech meant to promote peace and human rights.”

Supporting the holding:

Supreme Court’s hard line on supporting terrorists is the right line
“[T]he Supreme Court last month rightly upheld the ban on “material support” for designated foreign terrorist organizations to include seemingly benign support and training.”