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Supreme Court To Consider Whether the Government Can Ban Political Speech in the Name of Fighting Terrorism

(December 10. 2009) - An appeal that will be argued in February before the Supreme Court is shaping up to be the most significant case about government repression of political speech in recent memory. Holder v. Humanitarian Law Project is a First Amendment challenge to parts of a federal law that make it a crime to provide any organization designated by the Secretary of State as “terrorist” with assistance in any of its activities, even lawful and nonviolent ones.

The plaintiffs in the case are the Humanitarian Law Project, a human rights organization with consultative status at the United Nations; Ralph Fertig, a retired administrative law judge who has worked to support the rights of Kurdish people in Turkey; Dr. Nagalingam Jeyalingam, an American physician who has worked on behalf of Tamil people in Sri Lanka; and several nonprofit groups that focus on helping Tamils.

Fertig and the Humanitarian Law Project have in the past assisted the Kurdistan Workers’ Party (the PKK) with training in the use of humanitarian and international law on behalf of Kurds living in Turkey. The PKK is the principal political organization representing the Kurds, who as an ethnic minority in Turkey have suffered severe discrimination and human rights violations. Similarly, Dr. Jeyalingam and the Tamil-aid groups have worked with the Liberation Tigers of Tamil Eelam, or Tamil Tigers (the LTTE) on humanitarian activities; the LTTE is the principal political organization representing Tamil people in Sri Lanka, another ethnic minority that has suffered human rights abuse and discrimination.

But these aid activities stopped more than a decade ago, after Congress passed the "Anti-Terrorism and Effective Death Penalty Act." This law authorized the State Department to create a list of “foreign terrorist organizations”; then made it a crime to provide “material support” to any listed group. “Material support” was defined to include “training” and other forms of assistance, even if it was solely for peaceful purposes unrelated to terrorism. Terrorism was also defined broadly, to include virtually any actual or threatened use of a weapon against people or property. In making designations, the Secretary of State was directed to consider the "national defense, foreign relations, or economic interests of the United States.”

Congress has amended the law several times, largely in response to court decisions striking down parts of the ban on “material support.” (See Federal Court Strikes Down Part of the "USA PATRIOT Act" for background on this long litigation.) The current version of the law specifies four types of “material support” that the Humanitarian Law Project and the other plaintiffs in the case have argued are vague, overbroad, and otherwise in violation of the First Amendment. These four provisions, whose validity the Supreme Court will now decide, make it a crime to provide:

“training,” which the law defines as “instruction or teaching designed to impart a specific skill, as opposed to general knowledge”;

“expert advice or assistance,” defined as “advice or assistance derived from scientific, technical or other specialized knowledge”;
 
“service,” a term left undefined in the law, but according to the government's attorneys, any “act done for the benefit of” a designated group; and

“personnel,” which includes anybody who works under an
organization’s “direction or control,” but excludes people acting “entirely independently.”

In 2007, the U.S Court of Appeals for the Ninth Circuit found the first three of these four provisions to be unconstitutionally vague. The court explained, with respect to the ban on training, for example, that it “implicates, and potentially chills ... protected expressive activities and imposes criminal sanctions of up to fifteen years imprisonment without sufficiently defining the prohibited conduct for ordinary people to understand.”1

The government in its appeal to the Supreme Court argued that all parts of the "material support" ban are necessary for our national security. But its justifications for the broad restrictions go beyond impeding terrorism; some of them are frankly political. As an attorney for the State Department told the court of appeals at oral argument, advising a designated organization on how to argue its case before the United Nations is a crime under the law because ”we do not want U.S. persons to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper, we do not want U.S. persons assisting these organizations except as Congress specifically has provided.”

Similarly, when asked whether filing a friend-of-the-court brief on behalf of the LTTE in this case would be a crime, the government's lawyer replied, “Yes because Congress wants these organizations to be radioactive. … We don’t want U.S. lawyers, other U.S. persons, to be saying, ‘Yeah, I want to help them in a good way,’ because that adds to the goodwill and the standing of the organization.”2

Although no U.S. lawyer could file a friend-of-the-court brief for LTTE, five such briefs have been filed so far by other groups. Four support the plaintiffs: their signatories include the Carter Center (set up by former President Jimmy Carter to support international human rights), Christian Peacemaker Teams, Human Rights Watch, a coalition of sociologists, anthropologists, and other scholars concerned with human rights, and the Media Law Project. The Anti-Defamation League has filed in support of the government.

The most interesting of the briefs, historically speaking, comes from 32 "Victims of the McCarthy Era," individuals or their family members or close friends who were blacklisted or otherwise lost their jobs, and in some cases served prison terms, during the late 1940s and 1950s, because of suspected associations with the Communist Party. The government alleged, and the courts agreed, that one of the CP's goals was the violent overthrow of the U.S. government; but the Party also had many peaceful aims - among them labor organizing and racial equality. People who joined the CP or signed petitions, who went to meetings or otherwise shared only the Party's lawful goals, nevertheless were condemned as a matter of "guilt by association." It was not until 1961, in the case of Scales v. United States, that the Supreme Court fully rejected the concept of guilt by association and ruled that a person must have purposefully shared a group's illegal aims before he can be convicted of a crime.

"Americans paid a heavy price for McCarthy era penalties on speech and association," the Victims of the McCarthy Era say in their brief. They "have a strong interest in ensuring that these excesses are not repeated, that political speech is not quashed, and that dissenting individual views and associations are protected."3

Both the brief of the McCarthy Era victims and the brief for the plaintiffs in Holder v. Humanitarian Law Project argue that the Supreme Court can avoid deciding the constitutional issues in the case simply by following the precedent of Scales v. United States and interpreting the "material support" ban to make criminals only of those people who specifically intend to support a group's illegal activities.

David Cole, the lead lawyer for the plaintiffs, has commented: "This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted."4

Update: On June 21, 2010, the Supreme Court reversed the court of appeals and upheld all sections of the "material support" law. Chief Justice Roberts, writing for the Court majority, said that the law was narrowly drawn to ban only activities "directed to, coordinated with, or controlled by foreign terrorist groups,” and that citizens are still free to engage in independent advocacy in their support. Justices Breyer, Ginsberg, and Sotomayor dissented. For the Court's opinion, go to http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf

Notes

1. Humanitarian Law Project v. Mukasey, 509 F.3d 1122, 1134-35 (9th Cir. 2007), amended, 552 F.3d 916, 929 (9th Cir. 2009).

2. Quoted in Brief for the Humanitarian Law Project et al. in Holder v. Humanitarian Law Project (S.Ct. Nos. 08-1498 and 09-89, Nov. 16, 2009), pp. 13, 49.

3. Brief of Amici Curiae Victims of the McCarthy Era in Support of Humanitarian Law Project et al , in Holder v. Humanitarian Law Project, pp. i, 1.

4. Scotusblog: http://www.scotusblog.com/wp/brief-pare-down-patriot-act/