The Supreme Court and political speech in the 21st century: the implications of Holder v. Humanitarian Law Project.

• Author: Heins, Marjorie
• Position: IV. Holder at the Supreme Court through VII. Conclusion, with footnotes, p.587-612

4. HOLDER AT THE SUPREME COURT

   The government's Supreme Court strategy was, first, to emphasize that this was an as-applied, not a facial vagueness challenge. (190) Since the plaintiffs had consistently used the terms training, service, and expert advice or assistance to describe their own conduct, the lawyers argued, they could hardly argue that the law was vague as applied to them. (191) Its application to anybody else was not a question before the Court. (192)

   Second, the government reiterated its position that AEDPA is "a regulation of conduct, only incidentally affecting speech," and is therefore subject to intermediate rather than strict First Amendment scrutiny. (193) The law easily survived such scrutiny because it was "narrowly tailored" to advance the "important" government interest in stopping all aid to designated FTOs. (194) Congress had found that terrorist groups "are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct" (195)--that is, military and nonviolent support are "fungib[le]," and contributions to "ostensibly legitimate activities" can "free[] an equal sum that can then be spent on terrorist activities." (196)

   But it was questionable whether this "fungibility" argument applied to non-financial assistance. (197) So the government suggested another rationale. Even "seemingly benign" forms of support, such as legal or communications advice, "bolster[] a terrorist organization's efficacy and strength in a community, thus undermining this nation's efforts to delegitimize and weaken these groups." (198) According to the government, preventing activities that might "legitimize" a designated FTO was thus a sufficient government interest to satisfy the United States v. O'Brien test. (199) If this seemed a straightforward acknowledgment that aspects of the "material support" ban were aimed at suppressing speech that dissented from U.S. foreign policy, the government finessed the problem by warning the Court not to "attempt to second guess" the judgment of Congress and the executive, especially in matters of "sensitive national security and foreign affairs," which required "a heightened degree of deference" to the political branches. (200)

   In urging application of the O'Brien standard, which assumes that a challenged law is content-neutral, the government lawyers also had to justify AEDPA's exemption for medicine and religious materials. (201) The distinction had "nothing to do with the content of any speaker's message," they argued--even though "religious" is obviously a content-based category. (202) Congress's purpose was not to discriminate, they said; it merely found that "certain forms of assistance are not fungible, and so will not inevitably aid the activities of terrorist organizations that endanger American lives and interests. Or Congress was entitled to determine that the humanitarian value of some forms of aid outweighs the interests supporting their prohibition." (203)

   The government continued to press a distinction between "joining or affiliating with a group" and providing it with a "service." (204) The plaintiffs remained "free to join or affiliate with the PKK or LTTE," it said. (205) Thus, Scales did not apply and there was no need either to read a specific intent requirement into the law or to strike it down for lack of one. (206)

   Finally, the government lawyers accused the plaintiffs of, in essence, simply disagreeing with U.S. foreign policy:

   Petitioners broadly claim that training terrorist organizations in peacemaking and human rights advocacy will not undermine national security. But they conceded before the lower courts that Congress could constitutionally prohibit any and all forms of support to al Qaeda-presumably because such aid does pose a security danger. Petitioners' position thus amounts to a claim that Congress may not extend the material support statute to additional terrorist organizations, including the PKK and LTTE. The basis for that claim ... has nothing to do with the statute's supposed vagueness, content-discrimination, or associational effects. Rather, it is grounded in petitioners' policy judgment about aid to al Qaeda as compared with aid to other terrorist organizations. (207) The plaintiffs' lawyers countered all these arguments by highlighting the breadth of the "material support" ban. (208) Government lawyers had said it would be a "crime ... to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English." (209) The ban was not only too broad; its "legitimizing" rationale was a blatant effort to suppress dissent. At oral argument before the Ninth Circuit, the Justice Department lawyer had explained, "[w]e do not want U.S. persons to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper.... Congress wants these organizations to be radioactive." (210) He argued that helping an FTO in any way "adds to the good will and the standing of the organization." (211) Lead attorney David Cole and his co-counsel contended that this frankly viewpoint discriminatory purpose, and the law's direct suppression of speech and association, trigger strict First Amendment scrutiny. (212)

   They also, of course, defended the court of appeals' rulings on vagueness. (213) Examples from the now-lengthy litigation record included the government's attempted distinction between "specific skill" and "general knowledge" for purposes of the ban on training-teaching geography to FTO members would be permissible because it is "general knowledge," but teaching the "political geography of terrorist organizations" would not, because it is a "specific skill." (214) Similarly, according to the government, advocacy "on behalf of' an FTO was permissible, but advocacy "for the benefit of' the organization was not. (215) And the difference between "specialized" and "general" knowledge, for purposes of the "expert advice and assistance" ban, posed the same dilemmas. (216) With respect to "personnel," the law's exemption of '"entirely independent' activity" still left questions as to "the vast gray area between complete control and complete independence, encompassing myriad forms of coordination, collaboration, consultation, and communication" with designated groups. (217)

   Finally, Cole and his co-counsel pressed their avoidance argument: all the constitutional problems would go away if, as in Scales, the Court would read a specific intent requirement into AEDPA. (218)

   Amicus curiae briefs on both sides dramatized the political dimensions of the case. (219) The most striking, on behalf of the Carter Center, Christian Peacemaker Teams, and seven other human rights organizations, detailed how the broad ban on nonmonetary forms of "material support" would cripple peace initiatives. (220) Among these initiatives was the Carter Center's monitoring of elections in Lebanon and the Palestinian Territories, which necessarily required meetings with members of Hezbollah and Hamas--both designated FTOs, and both direct participants in the electoral process. (221) Former President Jimmy Carter had worked on such observation teams. (222)

   The Carter Center also wanted "to launch a project to teach peaceful conflict resolution in universities in Gaza through the formation of a student 'parliament,' where students could come to voice concerns and be trained to adjudicate disputes." (223) But the Carter Center was unsure whether this program would be a crime "if at least some of the students participating [were] known or [were] likely to be members of Hamas or other designated FTOs." (224) Other examples of mediation and peacemaking in Africa, the Middle East, Latin America, and Asia filled the Center's brief, which argued that "[t]his work, by necessity, requires meeting with all sides to a conflict." (225)

   Another brief, from thirty-two 'Victims of the McCarthy Era," was an effort to remind the Court of the historical costs of guilt by association. (226) This group of elderly radicals or their relatives included H. Chandler Davis, who had been fired from the University of Michigan in 1954 after refusing to cooperate with the House Un-American Activities Committee, Henry Foner, one of four left-wing brothers who were blacklisted from teaching at New York City schools and colleges, and Beth Lamont, widow of the philosopher and activist Corliss Lamont, who had been cited for contempt of Congress and denied a passport during the Red Scare. (227) The brief argued that without the specific intent standard of Scales, (228) Elfbrandt, (229) and Keyishian, (230) AEDPA amounted to a "blanket prohibition on association," with a "chilling effect ... reminiscent of the McCarthy Era." (231)

   There were five amicus briefs on the government's side; all made arguments at least as political as those of the McCarthy Era victims. (232) The Anti-Defamation League focused on the threat posed by Hamas to Israel. (233) A group of retired military officers, joined by four nonprofits, argued--in contradiction to the government--that since the plaintiffs had now abandoned their claim of a right to contribute money and supplies to FTOs, much of the peaceful support they envisioned would not be a crime. (234) A brief from two national security-oriented think tanks, co-authored by John Yoo, (235) was the most passionately ideological, asserting:

   Our terrorist enemy infiltrates agents across our borders, covertly provides them with money and assistance, and then launches surprise attacks on innocent civilians. American troops are fighting on battlefields abroad, yet the court below has undercut the reasonable efforts of government to deny aid and support to the enemy at home.... If the Court adopts the view of the Ninth Circuit--that it is...