Monday, June 21, 2010
Roberts, writing for the Court composed of six Justices, in Holder v. Humanitarian Law Project, upheld the so-called "material support" provision of the PATRIOT Act against a due process Fifth Amendment and a free speech and association First Amendment challenge. (Opinion here via ScotusBlog). We previously discussed the oral arguments and the statutory provisions at issue here.
On the vagueness issue, Roberts wrote that the Ninth Circuit improperly merged the due process and free speech claims, and that a "Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression": "Otherwise the doctrines would be redundant." The Court distinguished the statutory terms in PATRIOT Act - - - "training," "expert advice or assistance," "service" and "personnel" - - - from previously adjudged vague terms such as "annoying," "indecent," and "vagrants." (Opinion at 15).
In discussing the First Amendment free speech arguments, the Court characterized the positions of both HLP and the government as "extreme." (at 20). The Court rejected the argument of the plaintiff HLC that "pure political speech" was covered by the statute and likewise rejected Holder's argument that "the only thing truly at issue in this litigation is conduct, not speech." (at 21). Yet while the Court declined to apply the O'Brien test, the Court accorded great deference to Congressional findings regarding the PKK and LTTE (Tamil Tigers) and noted that money is fungible, thus supporting the conclusion that "humanitarian aid" could ultimately serve the violent activities of "terrorist" organizations. The Court also gave deference to the Executive branch, quoting a State Department Affidavit (at 28). While the majority acknowledged the Court had an important role to play - - - writing "we are one with the dissent" that national security considerations do not "automatically trump" judicial obligations - - - the majority quickly emphasized the judicial "lack of competence" in such matters. The majority chastises the dissent for failing to address "the real dangers at stake." (at 33).
Regarding the free association claims under the First Amendment, the Court dispensed of plaintiffs arguments quickly, noting that the Ninth Circuit had similarly rejected these claims.The Court ended its 36 page opinion with a citation to the Constitution's preamble ("provide for the common defence") and the Federalist No. 41 ("security against foreign danger" as an "avowed and essential object" of the United States).
Breyer who read his dissent from the bench, was joined by Ginsburg and Sotomayor. The dissent agreed with Court's conclusion regarding vagueness, but forcefully disagreed with the Court's First Amendment conclusions. While recognizing the threat of terrorism, the dissent argued that the plaintiffs' prohibited acts were political speech and that the government did not demonstrate how prohibiting the teaching of the use of international law to peacefully resolve disputes, for example, helps achieve the security interest. (Dissent at 7). In discussing this issue, Breyer rejects the fungibility conclusion, finding that it is not obvious and that the Government has not provided an empirical basis. Breyer also rejects the proffered "legitimacy" justification, noting that the statute allows many other types of speech that would also lend legitimacy to the terrorist organizations.
Breyer also criticizes the majority's imposition of a new mens rea requirement to save the statute's constitutionality, and argues that the Court should have remanded the case rather than apply this new rule.
Ultimately, Breyer concludes that the Court failed to "examine the Government's justifications with sufficient care" and failed to "insist upon specific evidence, rather than general assertion." (at 23). As a result, Breyer contends, the "individuals" before the Court are being deprived "the protection the First Amendment demands."