June 21, 2010

Supreme Court Decides Holder v. Humanitarian Law Project

On June 21, 2010, the Supreme Court decided Holder v. Humanitarian Law Project, No. 08-1498, holding that a federal statute making it a crime to "knowingly provide material support or resources to a foreign terrorist organization" did not violate the First Amendment when applied to certain activities of the Humanitarian Law Project in support of two groups that had engaged in numerous terrorist attacks as part of their aims to establish independent states for Kurds in Turkey and for Tamils in Sri Lanka. The Project's specified activities included training members of the groups to use international law to resolve disputes peacefully, to petition the United Nations for relief, and engaging in political advocacy, in coordination with the two organizations.

In enacting the Antiterrorism and Effective Death Penalty Act of 1996, 18 U.S.C. §2339B, Congress prohibited the provision of "material support or resources" to certain foreign organizations (designated by the Secretary of State) that engage in terrorist activity, based on its finding that the specified organizations "are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." The statutes defines "material support or resources" to include training and expert advice or assistance.

The plaintiffs in the case were the Humanitarian Law Project ("the Project") and five other domestic organizations and two individuals who wanted to provide support for the humanitarian and political activities of the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). The PKK and LTTE engage in political and humanitarian activities to advance their aims of establishing independent states for Kurds and for Tamils, but evidence showed that they also have committed numerous terrorist attacks, some of which have harmed American citizens. Plaintiffs filed suit claiming that the "material support" statute violated their First Amendment rights by criminalizing their providing monetary support, legal training, and political advocacy to the PKK and LTTE without requiring the government to prove that the plaintiffs had a specific intent to further the unlawful ends of those organizations.

After a complicated 12-year history of litigation, the Supreme Court held that the statute was constitutional as applied to the particular forms of support that the plaintiffs sought to provide to the foreign terrorist organizations. It held that the necessary mental state for violation of the statute was knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities, but noted that the statute "does not criminalize mere membership in a designated foreign terrorist organization" – distinguishing it from prior cases that invalidated Cold War legislation that prohibited membership in a group advocating the violent overthrow of the government. It also held that the statutory language did "not cover independent advocacy," but only coordinated activity amounting to "working under the foreign terrorist organization's direction and control."

The Court held that, as so construed and applying "rigorous" scrutiny, the statute did not violate the First Amendment. "[P]laintiffs may say anything they wish on any topic," but could not "provide material support to the PKK and LTTE in the form of speech." The restriction on speech was based upon "the Government's interest in combating terrorism [which] is an urgent objective of the highest order" and upon Congress' empirical finding that "foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct" (emphasis added by the Court). The Court noted evidence that the PKK and the LTTE, in particular, have "not respected the line between humanitarian and violent activities." The Court held that Congress properly could draw the line between protected speech and impermissible promotion of the terrorist organization as a whole by prohibiting "material support coordinated with or under the direction of a designated foreign terrorist organization." The Court noted its "respect for the conclusions" of Congress and the Executive Branch "in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess."

The Court limited its as-applied holding to the particular circumstances of the case and cautioned that it was not holding "that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny."

Chief Justice Roberts delivered the opinion of the Court, in which Justices Stevens, Scalia, Kennedy, Thomas, and Alito joined. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined, asserting that "the simple fact of ‘coordination' alone cannot readily remove protection that the First Amendment would otherwise grant" and that the statute instead should be construed "as criminalizing First-Amendment-protected pure speech and association only when the defendant knows or intends that those activities will assist the organization's unlawful terrorist actions."

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