Tuesday, February 23, 2010
The Supreme Court today heard oral arguments in Holder v. Humanitarian Law Project, the case testing the constitutionality of a portion of the Anti-Terrorism and Effective Death Penalty Act. (We previously posted on the case here.) The relevant section, 18 U.S.C. Sec. 2339B(a)(1), outlaws the “knowing” provision of “material support or resources” to a “foreign terrorist organization,” as determined by the Secretary of State. The section defines “material support or resources” as follows:
any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
18 U.S.C. Sec. 2339B(a)(1) (emphasis added).
The plaintiffs—a retired judge, a medical doctor, a human rights organization, and several nonprofit groups—brought the case as a preenforcement challenge to the statute and sought a declaration that the statute violated the First Amendment. Plaintiffs sought to continue to teach and advocate the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace on behalf of the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), two organizations designated as “foreign terrorist organization[s]” by the Secretary of State. Plaintiffs feared that their advocacy would violate the statute, resulting in a sentence up to 15 years in prison. As the plaintiffs argued, and the government confirmed during oral argument today, the statute would make it a crime for plaintiffs to teach the PKK or LTTE human rights advocacy (or even English), to submit an amicus brief in federal court on behalf of the PKK or LTTE, to petition Congress or the United Nations for legal reform, or even to speak to the media on their behalf.
The Ninth Circuit ruled the statute void for vagueness. Oral argument today did nothing to clarify it.
The Court struggled with whether the plaintiffs’ actions—teaching and advocacy—were speech (thus subjecting the statute to strict scrutiny, as a content-based restriction), or conduct (and thus subject to the much less rigorous test in O’Brien). In getting there, the Court posed a variety of hypotheticals that took the parties far afield from the plaintiffs’ case—an “as applied” challenge to the statute. The speech-conduct debate, conducted through the hypotheticals, only served to illustrate how vague the statute is, and in the end neither party (nor, apparently, any justice) could articulate just where the line is between speech and conduct under the statute.
Professor David Cole (Georgetown), for the plaintiffs, argued that the statute needed a specific intent element—that it could be saved if it required the government to show that a defendant specifically intended that its actions would further unlawful or terrorist ends of the group. But this didn’t square with the government’s theory—that any support for a terrorist group is illegal, because even support for the lawful activities of the group might free up resources to be used for the unlawful activities of that group.
There are two problems (at least) with this theory. First, it doesn’t lend itself to easily identifiable boundaries, especially when the support is speech—“expert advice or assistance.” There’s both an overbreadth problem and, as the lower court ruled, a vagueness problem when even the government can’t articulate the full sweep of the statute. (Or when it does—as in saying that the statute prohibits an individual from filing an amicus brief on behalf of the PKK or the LTTE—its position runs so squarely up against the First Amendment and other constitutional values.) Second, this argument sounds like an attempt at meeting strict scrutiny (for the content-based restriction on speech). But, as Chief Justice Roberts pointed out, the government nowhere argued this before.
The net result—and where at least a couple on the Court seemed to end—is a good possibility of a remand. If the Court determines that the plaintiffs’ activity is conduct, not speech, the Court may remand for application of the O’Brien test. If the Court determines that the plaintiffs’ activity is speech, not conduct, the Court may remand for application of strict scrutiny.
Or, if the indeterminacy in the arguments today is any reflection of the vagueness of the statute, the Court may well uphold the lower court ruling and void the statute, as applied, for vagueness.