On June 21, 2010, the United States Supreme Court in Holder v. Humanitarian Law Project, et al. struck a blow to the American nonprofit sectors’ commitment to resolving international conflicts through peaceful and nonviolent means. In a 6-3 decision, the Court rejected the Humanitarian Law Project's (HLP) claims challenging the constitutionality of provisions of the material support to terrorism law. As a result, a broad range of interactions with designated terrorist groups, including attempts at peace building and support for non-violence, are prohibited. (See 18 U.S.C. § 2339B). This summary reviews the Court’s majority and dissenting opinions and notes issues to be addressed in developing better procedures.
Note: Page numbers cited refer to the text of the court’s opinion.
Key Issues Before the Supreme Court:
3.) Does 2339B violate the First Amendment freedom of association because it criminalizes providing material support without requiring proof that HLP had a specific intent to further terrorism activity.
HLP, two U.S. citizens, and six U.S. nonprofit organizations sought to train two organizations designated as Foreign Terrorist Organizations by the Department of State on how to use the United Nations conflict resolution process and other nonviolent means to resolve their disputes. Criminal statute 18 U.S.C. 2339B prohibits “knowingly providing material support or resources to a foreign terrorist organization.” [p. 2] The definition of material support or resources encompasses many different types of activities. At issue in this case is the prohibition of providing “training,” “services,” “expert advice or assistance,” and “personnel.”
The majority opinion, authored by Chief Justice John Roberts, held that providing training on nonviolent conflict resolution to the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Elaam (LTTE) violated the material support laws. The court rejected HLP’s claims that the law was impermissibly vague in violation of the Fifth Amendment Due Process Clause and that it violated HLP’s First Amendment right to free speech and association.
The dissenting opinion, authored by Justice Stephen Breyer, said that the law prohibits HLP’s speech and association-related activities, thereby requiring the government to show such restrictions on First Amendment protected activities serve its compelling interest to combat terrorism. He said the government failed to meet its burden and thus HLP’s activities should not be prohibited. The dissent rejected HLP’s Fifth Amendment due process claims.
In 1998, HLP filed a pre-enforcement suit in federal court challenging the constitutionality, on Fifth and First Amendment grounds, of the material support law. HLP sought a preliminary injunction prohibiting the government from prosecuting them for their peaceful advocacy efforts and humanitarian aid assistance. [p. 4]
HLP sought to conduct the following activities:
- Train members of LTTE to present claims for tsunami-related aid to mediators and international bodies;
- Offer their legal expertise in negotiating peace agreements between the LTTE and the Sri Lankan government;
- Engage in political advocacy on behalf of Tamils who live in Sri Lanka. [p. 9]
The federal District Court for the Central District of California granted the preliminary injunction in part. The court held that HLP would likely succeed in establishing its claim, as applied to them, that “personnel,” and “training,” were impermissibly vague. [p.5] However, the court found that HLP failed to establish a probability of success on their First Amendment speech and association claims.
The Ninth Circuit Court of Appeals affirmed the lower court’s decision. HLP lost its speech and association claims but won in its claims that “personnel,” and “training” were impermissibly vague such that it was “easy to imagine protected expression that falls within the bounds” of these terms. [p. 5] The case was returned to the District Court for consideration on the merits. The Court issued a permanent injunction prohibiting the government from enforcing the bans on “personnel,” and “training” support. The Court of Appeals upheld that ruling. [p. 5]
In 2001, Congress amended the definition of “material support or resources” to include “expert advice or assistance.” In 2003, HLP filed a second lawsuit challenging the constitutionality of this term as applied to it. The District Court ruled that “expert advice or assistance” was impermissibly vague, but rejected the First Amendment claims that the new term was overbroad and criminalized associational speech. [p.6]
While the two lawsuits were on appeal, in 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act (IRTPA) which made the following amendments to the material support laws:
- Amended the mental state necessary to violate the material support laws to require knowledge of the foreign groups designation as a terrorist organization or knowledge of the group’s commission of terrorist activity;
- Added the term “service” as a form of prohibited support defined in “material support or resources;”
- Defined “training” as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge;”
- Defined “expert advice or assistance” to mean “advice or assistance derived from scientific, technical, or other specialized knowledge;”
- Clarified the scope of the term “personnel” by providing that a person must “work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization” to be found in violation of 2339B. “Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives” are not in violation of 2339B. [p.7-8]
Key Issues Before the Supreme Court
Subsequently, the two cases proceeded through the federal appeals process and up to the U.S. Supreme Court where it answered the following questions about the material support law section 2339B:
HLP argued that the court should avoid deciding any constitutional questions by interpreting the law, when applied to speech, to require proof of specific intent to further a foreign terrorist organization’s unlawful activities.
The court found that:
- Requiring proof of specific intent to support terrorism is inconsistent with the text of the statute and the intent of Congress.
The court’s reasoning:
Multiple factors support this conclusion, the Court reasoned. First, a literal reading of 18 U.S.C. 2339B clearly prohibits “knowingly” providing material support to terrorism. Second, the other two adjacent sections of the material support law differ in the mental state required to violate the statute. In both 2339A and 2339C, not at issue in this case, Congress required that the accused “intend” to provide material support in order to be found in violation of the law. In contrast, Congress chose a “knowledge” mental state requirement for 2339B. This difference in the mental state requirements among adjacent sections of the material support law further evinces that Congress purposely chose a knowledge requirement for 2339B. Finally, the Court rejected a reading that required specific intent only as applied to speech but not other activities. Such a reading, reasoned the Court, would require it to revise the statute as opposed to merely interpret it.
The dissent reasoned:
The dissent called on the Court to apply the established principle of constitutional avoidance. Accordingly, the Government should be required to show knowledge or intent for the First Amendment protected pure speech and association to assist the designated organization’s terrorist activities. To prove knowledge, the government must show knowledge “that his support bears a significant likelihood of furthering the organization’s terrorist ends.” [p. 18]
Does the material support law violate the First Amendment freedom of speech because it criminalizes providing material support without requiring proof that HLP had a specific intent to further terrorism activity?
The court found:
- The highest standard of judicial review, the strict scrutiny test, applies, which requires the government to show that restricting First Amendment protected activities serves a compelling government interest
- HLP’ activities do not constitute pure political speech
- HLP’ activities are not limited to conduct but also include speech
- The government may ban HLP’ material support to the PKK and LTTE in the form of speech
- Any contribution, even in the form of speech, to a terrorist organization legitimizes the organizations’ terrorist activity
- Providing designated groups with any form of material support strains the U.S.’s relations with its allies and undermines international efforts to combat terrorism.
The majority reasoned:
The Court rejected the government’s claim that the only thing at issue in this case was conduct, not speech. Although the law is directed at conduct, but as applied to HLP “the conduct triggering coverage under the statute consists of communicating a message.” [p. 23] Thus, the highest standard of judicial review, the strict scrutiny standard, applies. This standard requires the government to show that restricting First Amendment protected activities serves a compelling government interest. Neither party disputed that combating terrorism is a compelling government interest. The parties disputed, however, whether prohibiting HLP’s activities served this interest.
The Court also rejected HLP’s claim that the activities in which it sought to engage constitute pure political speech. HLP is free to speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law so long as they do not do so in coordination with or under the direction of the PKK and LTTE. What HLP cannot do, the Court held, is provide material support in the form of coordinated speech activities to such groups. [p. 21]
HLP emphasized that the ban on material support as applied to their activities does not further the government’s compelling interest to combat terrorism. To the contrary, HLP’s activities “will advance only the legitimate activities of the designated terrorist organizations, not their terrorism.” [p. 23] In rejecting this reasoning, the Court cited a finding in the Congressional Record wherein Congress stated “[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” (emphasis in opinion) [p. 24] This statement applied to all forms of support, not just monetary support as HLP contends.
In arriving at this conclusion, the Court adopted a “fungibility of resources” theory wherein any support, even in the form of training to cease engaging in violence, “frees up other resources within the organization that may be put to violent ends.” [p. 25] The Court also adopted a “legitimization” theory wherein any form of support to a terrorist organization supposedly lends it legitimacy “that makes it easier for those groups to persist, to recruit members, and to raise funds – all of which facilitate more terrorist attacks.” [p. 25]
Finally, the Court denied HLP’s First Amendment claims based on deference to the executive branch on matters concerning national security and foreign affairs. According the majority, HLP's activities undermine the U.S.’s relationships with its allies who are harmed by the organization’s violent activities. In deference to the executive branch, the Court stated that it was inappropriate to substitute its own assessments as to whether restricting HLP’s activities served the government’s compelling interest in combating terrorism.
In sum, the Court held that restricting HLP’s speech related activities as applied served the government’s compelling interest in combating terrorism.
The dissent reasoned:
Although the government has a compelling interest to combat terrorism, it failed to prove that restricting HLP’s speech served this interest.
“All of the activities involve the communication of advocacy of political ideas and lawful means of achieving political ends.” [p. 2] Therefore, they are the sort of activities that warrant the First Amendment’s strongest protection. [p. 3] The dissent noted that the mere fact of “coordination” alone is not a sufficient basis for the removal of the First Amendment’s protection because freedom of association is protected. [p.4]
Moreover, the right to associate is not lost because some members of a group may have participated in conduct or advocated doctrine that is not protected. By extension, the fact that the PKK or LTTE engage in violent activities does not strip HLP of their protected speech and association rights directed towards persuading these groups to cease using violence to resolve their grievances. [p. 5]
While conceding the Government’s expertise in foreign affairs and national security, the dissent noted that it is up to the Court to decide whether otherwise protected speech can be criminalized. [p. 16] Simply because foreign governments may not like us for granting such rights does not justify restricting protected speech.
Does the material support law violate the First Amendment freedom of association because it criminalizes provision of material support without requiring proof that HLP had a specific intent to further terrorism activity.
The majority rejected HLP’s First Amendment freedom of association claims on the same grounds on which it rejected HLP’s free speech claims. The majority and dissenting opinions did not offer any additional or separate reasoning than provided in their rulings on the freedom of speech claim.
The Court found:
- The terms “training,” “expert advice or assistance,” “service,” and “personnel” are not impermissibly vague.
- The relevant provisions of 2339B provide a person of ordinary intelligence fair notice of what is prohibited
The Court reasoned:
The Fifth Amendment Due Process Clause requires that a criminal statute provide a person of ordinary intelligence fair notice of what is prohibited. A statute cannot be so lacking in standards that it authorizes or allows for discriminatory enforcement. Therefore, the Court pointed out, a Fifth Amendment vagueness challenge does not depend on whether a law applies to a significant amount of protected expression.
To no avail, HLP argued that words like “specific,” “generic,” and “specialized” in connection with defining “knowledge” and “advice” were vague such that a person could not discern what constituted general knowledge versus specialized knowledge or general skill versus specific skills.
In rejecting HLP’s claim, the Court contrasted the terms at issue with terms struck down as impermissibly vague in other cases. Terms such as “ annoying,” “indecent,” and “vagrants” have been struck down by courts because they required “untethered, subjective judgment” to be made by the interpreter of the criminal statute. In contrast, the Court found that training, expert advice or assistance, personnel, and service to be sufficiently clear to inform the accused of what is and what is not prohibited.
Furthermore, Congress’ efforts to narrow the definition of “material support” supported a finding that the terms were sufficiently unambiguous to provide fair notice to a person of what acts are prohibited. For example, under IRTPA in 2004, Congress clarified that “personnel” did not apply to independent advocacy that lacked any direction by or coordination with the designated group. On numerous occasions, the Court pointed out that it could not strike down a law as unconstitutional based on hypotheticals posited in the abstract in a preenforcement challenge, thereby leaving open the possibility of a successful challenge in a future post-enforcement case where the facts expose the ambiguity in the terms at issue.
The Court found:
- Any contribution, even in the form of speech aimed at stopping violence, to a terrorist designated organization legitimizes that organization’s terrorist activities
- The legitimacy gained by the HLP’ speech facilitates the organization’s ability to recruit, raise money, and ultimately persist in its terrorist activities
The majority reasoned:
The Court rejected HLP’s reasoning that the ban on material support as applied to their activities is not necessary to further the government’s compelling interest to combat terrorism. To the contrary, HLP argued, its proposed activities “will advance only the legitimate activities of the designated terrorist organizations, not their terrorism.” [p. 23]
In rejecting HLP’s reasoning, the Court cited a finding in the Congressional Reocrd wherein Congress stated “[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” (emphasis in opinion) [p. 24] This statement applied to all forms of support, not just monetary support. Without providing any supporting evidence or examples, the Court concluded that the HLP’s proposed training and advising on how to utilize international organizations might benefit the designated organizations such that it facilitates their terrorist activities.
The Court also noted that when 2339B was passed Congress simultaneously removed an exception in 2339A that permitted material support in the form of “humanitarian assistance to persons not directly involved in” terrorist activity. [p. 24] The Court interpreted this as further evidence of Congress’ intent to prohibit any form of material support including that which does not directly assist in carrying out terrorist activities.
The dissent reasoned:
The “legitimacy” justification standing alone does not merit suppression of political speech, advocacy, and association. Indeed, it is hard to imagine a scenario when speech, association, and related activities on behalf of a group does not in some way legitimate the group. This conclusion applies equally to independent as well as coordinated advocacy. The majority’s reasoning is general, speculative, and has no natural stopping place, resulting in an overly broad ban on speech and association.
Moreover, there is no coherent way to distinguish between speech activity that will and will not trigger the chain of causation suggested by the Court. Even if a distinction could be made, the dissent concluded, such a rule significantly “‘chills’ protected speech beyond its boundary.” [p. 11]
The “legitimacy” justification also contradicts First Amendment case law involving those who joined the Communist party intending to further its peaceful activities. In those cases, the Court ruled that the First Amendment protected membership in the party notwithstanding any “legitimating” effects such membership had on the party’s unlawful objectives. [p. 12] The majority admitted that material support laws do not prohibit membership in designated organizations notwithstanding that such membership could arguably legitimize them. Hence the “legitimacy” justification propounded by the majority results in a suppression of First Amendment protected activities.
The court found:
- HLP’s non-monetary, speech-related support frees up the designated organization’s resources to redirect towards violent, unlawful acts
The majority reasoned:
The Court adopted a “fungibility of resources” theory wherein any support, even in the form of training them to cease engaging in violence, “frees up other resources within the organization that may be put to violent ends.” [p. 25] Because “money is fungible,” organizations who receive HLP’s support in the form of training and advice towards lawful objectives may redirect resources freed up by HLP’ ssupport towards violence. [p. 26]
Moreover, foreign terrorist organizations do not maintain financial firewalls between funds raised for civil, nonviolent activities and funds spent towards violent, terrorist activities. [p. 26]
In response to the dissent’s contention that there is no natural stopping point to this line of reasoning, the majority stated that the statute “reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered.” [p. 26]
The dissent reasoned:
The dissent noted, “the majority’s arguments stretch the concept of ‘fungibility’ beyond constitutional limits.” [p. 14] Applying an arbitrary fungibility theory to the teaching of international human rights law results in a rule of law that forbids teaching any subject where national security interests conflict with the First Amendment, thereby granting the Government unfettered discretion. [p. 14]
It rejected the notion that providing advocacy for political change through peaceful means or teaching the PKK or LTTE on how to petition the United Nations for political change is fungible with other resources that could be put to illicit purposes. [p. 8] These forms of assistance are not comparable to donations of money, food, or computer training, which the dissent agreed may be fungible. “It is far from obvious that these advocacy activities can themselves be redirected, or will free other resources that can be directed, towards terrorist ends.” [p. 8] The Government has failed to provide any empirical evidence proving such.