Holder v. Humanitarian Law Project

The Court just handed down its decision in Holder v. Humanitarian Law Project. There’s a lot there that’s important for free speech law, even for contexts far outside national security and anti-terrorism laws. And while the Court rejected the free speech claim (6-3, with the majority consisting of the conservatives plus Justice Stevens), there’s some language in its opinion that can help future free speech claimants. I hope to post several items today about individual aspects of that opinion.

For now, though, here’s a brief summary:

The statute, as interpreted by the Court: 18 U. S. C. §2339B, which outlaws “knowingly provid[ing] material support or resources to a foreign terrorist organization,” with “material support resources” defined to mean: 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.

The Court stressed that the statute did not apply to speech that was engaged in independently of the foreign organizations, even if the speech could help the organizations. “Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: ‘The statute does not prohibit independent advocacy or expression of any kind.’ Section 2339B also “does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so.’”

Rather, the statute, as the Court interpreted it, “cover[s] only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” This includes “speech to those groups [that] imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’ — for example, training on the use of international law or advice on petitioning the United Nations.”

The plaintiffs: The particular challenge was brought by groups and individuals that wanted to assist “the Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE). The PKK is an organization founded in 1974 with the aim of establishing an independent Kurdish state in southeastern Turkey. The LTTE is an organization founded in 1976 for the purpose of creating an independent Tamil state in Sri Lanka. The District Court in this action found that the PKK and the LTTE engage in political and humanitarian activities. The Government has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens.” The particular plaintiffs were”the Humanitarian Law Project (HLP) (a human rights organization with consultative status to the United Nations); Ralph Fertig (the HLP’s president, and a retired administrative law judge); Nagalingam Jeyalingam (a Tamil physician, born in Sri Lanka and a naturalized U. S. citizen); and five nonprofit groups dedicated to the interests of persons of Tamil descent.”

The speech the plaintiffs said was improperly restricted:

  1. “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”;
  2. “engag[ing] in political advocacy on behalf of Kurds who live in Turkey”;
  3. “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief”;
  4. “[e]ngag[ing] in political advocacy on behalf of Tamils who live in Sri Lanka.”

The Court’s holding: The statute, as interpreted by the Court, is not unconstitutionally vague, does not violate the plaintiffs’ freedom of speech, and does not violate the plaintiffs’ freedom of expressive association. UPDATE: In particular, the law is constitutional as to the training of the PKK as to dispute resolution and petitioning of the U.N. As to engaging in political advocacy on behalf of Kurds and Tamils, the Court concludes that these challenges are “phrased at such a high level of generality that they cannot prevail in this preenforcement challenge.” It’s possible that some such advocacy (when coordinated with the groups) is constitutional and it’s possible that some is not, but it’s not possible to decide this without more details about how the advocacy is to go forward.