At oral argument in Humanitarian Law Project v. Holder, (1) Justice Sotomayor pressed then-Solicitor General Kagan with a provocative question: under the federal law prohibiting material support to terrorism, is teaching a member of a terrorist group to play the harmonica a crime? General Kagan's response was, depending on your vantage, either deeply comforting or extremely alarming: "I would say ... there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas." (2) But if the government can constitutionally outlaw harmonica lessons, what speech and association with designated groups can it not reach? And where does that leave journalists, academics, and lawyers, as well as humanitarian aid, conflict resolution, and human rights organizations that work on issues related to designated groups or in places where designated groups operate--in some instances as the government of a region?
In Humanitarian Law Project, the Supreme Court addressed a constitutional challenge to the federal law that was the subject of Justice Sotomayor's query. That statute, 18 U.S.C. [section] 2339(B), prohibits the provision of "material support" to organizations the United States has designated as terrorist. In its decision, to the surprise of many, the Court held that the U.S. Constitution permits the government to outlaw at least some speech to or with foreign designated groups--even if that speech is aimed at reducing violence and promoting human rights, peaceful conflict resolution, and the use of international law.
This essay analyzes the Court's animating rationales in that case as well as the decision's potential impact on the variety of individuals and organizations that may come into contact with designated groups. I detail the doctrinal history that served as the backdrop of the Court's decision, and suggest that several of the Supreme Court's analytical distinctions--in particular, "independent" versus "coordinated speech" and foreign versus domestic designated entities--will face significant pressure in the future. Part I of the essay details the facts of the case and arguments made by both parties. Part II elaborates the Court's decision in Humanitarian Law Project and the intervention it made into U.S. law on speech and association with groups that engage in both violence and non-violent political activity. Part III discusses what future issues, litigation, and developments in constitutional doctrine the Court's decision foreshadows--and, critically, what questions it did not address.
HUMANITARIAN LAW PROJECT V. HOLDER
In Humanitarian Law Project v. Holder, the Supreme Court addressed the rights of speech and association for the first time in the context of the war on terror. The case presented a First and Fifth Amendment challenge to the federal law that bans provision of material support to terrorist organizations. The challenged statute, 18 U.S.C. [section] 2339B(a)(1), makes it a crime, punishable by fifteen years in federal prison, to provide "material support" to any entity the U.S. Secretary of State has designated as a foreign terrorist organization. (3) In addition to what might be considered traditional forms of "material support"--such as arms, trucks, or money--the statute also prohibits the provision of more intangible types of aid including "services," "expert advice or assistance," "training," and "personnel." (4)
Humanitarian Law Project involved the Kurdistan Workers Party (PKK) and Liberation Tigers of Tamil Eelam (LTTE). The PKK is a principal representative of the Kurdish ethnic minority in Turkey, a group of approximately 14 million people (5) that has been subjected to substantial discrimination and human rights violations. (6) Similarly, prior to its military defeat in May of 2009, the LTTE was a key ethnic Tamil organization in Sri Lanka that was committed to creating an independent Tamil state. (7) Both organizations have waged military insurgencies against the Turkish and Sri Lankan governments, respectively. It was undisputed in the litigation that the PKK and LTTE were dual-purpose groups--that is, these groups possessed both lawful social and political goals as well as unlawful violent ones. (8)
The operative claim heard by the Court involved the Humanitarian Law Project (HLP), a California-based NGO that was led by a former administrative law judge, Ralph Fertig. HLP had been doing advocacy on behalf of the Kurds, conducting trainings for their members on the use of international law to resolve disputes peacefully and teaching them how to petition for redress before the United Nations and the Turkish government. (9) HLP urged the PKK to use peaceful means to resolve their disputes with the Turkish government by bringing human rights claims before the United Nations, and it brokered peace talks between them and the Turkish government. (10) HLP sought a declaratory judgment from a court saying they had the right to continue to:
Train and advise the PKK on the use of international human rights law to resolve disputes peacefully; (11) Train and advise the PKK on how to petition for relief before representative bodies, including the United Nations; (12) Engage in advocacy that was coordinated with the PKK or on its behalf, including distributing literature in the United States and advocating before U.S. Congress and the United Nations. (13) HLP's central argument was that training someone on human rights, advising them on how to petition representative bodies for redress of grievances, and advocating to Congress and the U.N., whether or not it is with or on behalf of a designated group, is political speech; (14) that the material support law imposes a content-based regulation of speech; (15) that the Constitution prohibits a content-based regulation of political speech that urges lawful goals, particularly where, as here, there was no intent to further the unlawful ends of the group. (16) HLP asserted that the law violates its right of association; (17) and that the government failed to show a sufficient nexus--a sufficient fit--between HLP's peace-promoting speech and any violence. (18) HLP further argued that the test articulated in United States v. O'Brien (19) was not applicable because it applies only to regulations of non-communicative or non-speech aspects of expressive conduct. (20) But here the government's interest is necessarily related to the communicative impact of the speech, because the only way one can evaluate if given speech aids a group is by dint of what it communicates. (21)
The government's primary contention was that the material support statute does not target speech per se, but instead regulates the conduct of providing support to designated terrorist organizations, even if that support takes the form of speech. (22) As such, the government argued, the law should only face intermediate scrutiny under United States v. O'Brien; (23) the government had an interest in delegitimizing designated terrorist groups; (24) and any contribution, including of speech, furthered that group's violent purposes and therefore could be banned. (25) The government emphasized that under its interpretation, the law did not reach either independent speech or membership. (26) But the government did not argue, either in its briefs or at oral argument, that the law was constitutional if strict scrutiny applied; instead it asserted that a remand would be in order if the Court found that standard appropriate. (27)
In its decision, the Court accepted HLP's assertion that the material support law imposed a content-based restriction on speech and at least facially applied strict scrutiny. (28) Nonetheless, the Court upheld the statute as applied to HLP's proposed training and advice and assistance regarding both international law and advocacy to representative bodies. (29) But the Court declined to reach whether coordinated advocacy with a foreign designated terrorist group was constitutionally protected, stating that HLP had not sufficiently stated the type of advocacy it wished to undertake. (30)
The Court's central animating rationales regarding both speech and association were two-fold. The Court held that the statute withstands strict scrutiny (1) because it does not reach "independent speech," (31) and (2) because the Court will defer to Congress and the Executive as to what actions further terrorist violence, and both Congress and the Executive have found that any contribution to a designated group furthers terrorism. (32) In so holding, the Court accepted the government's contention that it maintained an interest in delegitimizing designated groups because "legitimacy ... makes it easier for those groups to persist, to recruit members, and to raise funds." (33)
COMMUNISTS, CIVIL RIGHTS ACTIVISTS, AND FACT DEFERENCE: THE DOCTRINAL HISTORY BEHIND HUMANITARIAN LAW PROJECT
Speaking and Associating with Dual-Purpose Groups
As the first First Amendment challenge to a national security law that the Supreme Court heard since 9-11, Humanitarian Law Project was in some sense a first. But in another sense, it presented a question that had long ago been decided, and decided differently, by the Supreme Court. In a set of cases starting in the 1930s, largely about the Communist Party and, later, regarding civil rights activists, the Court struck down a collection of laws that triggered penalties on association with groups that engaged in both violent and non-violent political activities.
In the Communist Party cases, as in Humanitarian Law Project, the government argued that any and all support to the Communist Party, no matter how benign, furthered its violent purposes. For example, the United States argued that the Smith Act, which criminalized membership in organizations that advocated violent overthrow, prevented individuals from "render[ing] aid and encouragement to the organization," (34) and that it was constitutional to prevent individuals...