Whether 18 U.S.C. 2339B(a)(1), which prohibits providing certain types of aid to known terrorist organizations, violates the First and Fifth Amendments by restricting political speech and including overly vague provisions?
It is illegal to provide material support and resources to groups that the government has determined are foreign terrorist organizations. The Humanitarian Law Project argues that this prohibition violates First and Fifth Amendment rights of those individuals or groups that wish to provide resources to the humanitarian arms of foreign terrorist organizations. The government contends that the law is not unconstitutionally vague and that these provisions are necessary to effectively combat terrorism. In addition to determining the scope of the First and Fifth Amendments with respect to this aspect of anti-terrorism efforts, the case will also affect how a variety of groups engage in humanitarian campaigns abroad.
Questions as Framed for the Court by the Parties
1. Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any . . . service, . . . training, [or] expert advice or assistance,” 18 U.S.C. 2339A(b)(l), to a designated foreign terrorist organization, is unconstitutionally vague.
2. Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(l) on provision of “expert advice or assistance” “derived from scientific [or] technical . . . knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Humanitarian Law Project v. Mukasey, 552 F.3d 916, 920 (9th Cir. 2009). The AEDPA permits the Secretary of State to designate an organization as a “foreign terrorist organization.” See 8 U.S.C. 1189(a). The AEDPA goes on to criminalize “knowingly provid[ing] material support or resources to a foreign terrorist organization,” including the nonviolent activities of such an organization. 18 U.S.C. 2339B(a)(1); 552 F.3d at 920.
In 1997, the Secretary of State designated thirty organizations, including the Kurdistan Workers Party (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”), as foreign terrorist organizations. See 552 F.3d at 921. While both PKK and LTTE engage in terrorist activities, they also engage in activities that help Kurds living in Turkey and Tamils living in Sri Lanka engage in self-determination. See id. The Humanitarian Law Project (“HLP”) sued in federal district court, seeking a preliminary injunction against enforcement of the provision prohibiting providing “material support or resources” to PKK and LTTE. See id. Among other things, HLP wants to train PKK members on how to use humanitarian and international law to peacefully resolve disputes and provide legal services in negotiating peace agreements between LTTE and the Sri Lankan government. See id. HLP claimed that the AEDPA violated their First Amendment and Fifth Amendment rights. See id. The district court partially granted HLP’s motion for a preliminary injunction, ruling that the government could not enforce the AEDPA prohibition on providing training and personnel to PKK and LTTE. See id. at 921–22. The Court of Appeals affirmed, holding that the Act was unconstitutionally vague with regard to its prohibitions against providing “personnel” and “training” to foreign terrorist organizations. See id. at 922.
In 2001, the USA PATRIOT Act amended the AEDPA’s definition of “material support or resources” to include “expert advice or assistance.” See 552 F.3d at 922. In a second round of litigation, the district court found this term to be unconstitutionally vague; the Court of Appeals subsequently affirmed and read a scienter requirement into § 2339B. See id. at 922–23. Congress then passed the Intelligence Reform and Terrorism Prevention Act (“IRTPA”), which included a scienter requirement and defined the terms “material support or resources,” “training,” and “personnel.” See id. at 923. The district court then consolidated the two cases and ruled that the terms “training” and “service” were unconstitutionally vague, as was a portion of the definition of “expert advice or assistance.” See id. at 924. The Court of Appeals affirmed the district court’s ruling, and the Supreme Court granted certiorari. See id. at 933.
The Supreme Court will decide whether the terms “training,” “expert advice or assistance,” “service,” or “personnel” found in 18 U.S.C. 2339B(a)(1) violate the First or Fifth Amendments. Petitioners Humanitarian Law Project, et al. (“HLP”), seek to invalidate these provisions, claiming they are overly vague, criminalize pure speech based on content, and violate the right of association. See Brief for Petitioners, Humanitarian Law Project, et al., at 17. Respondents, Eric H. Holder Jr., et al. (“Holder”), maintain that the provisions are constitutionally adequate, with reasonably clear terms that do not discriminate based on content or association. See Brief for Respondents, Eric H. Holder Jr., et al., at 16.
Vagueness of the Contested Terms
A statute is unconstitutionally vague if it causes people of ordinary intelligence to guess at its meaning and application. See Brief for Petitioners at 25. There must be reasonably clear guidelines as to what sort of conduct would violate the statute. See Brief for Respondents at 17. HLP contends that the four terms at issue are too vague to be consistently applied or understood. See Brief for Petitioners at 25. However, Holder argues that the statute is not vague since it includes a scienter requirement—knowledge that the organization is a government-designated terrorist group. See Brief for Respondents at 18. Holder maintains that the statute gives adequate notice of what is prohibited and permitted, and that clarity should be determined by applying the contested terms to HLP’s conduct instead of hypothetical situations. See id. at 19.
HLP insists that a ban on “training” would require people to distinguish between “specific skills” or “general knowledge.” See Brief for Petitioners at 26. HLP argues there is no clear way of recognizing when something passes from knowledge that was generally understood to specific skills, and thus, that the term “training” is intolerably vague. See id.
Holder maintains that ordinary people would understand the terms, and that they are clear enough for HLP to use in their own brief. See Brief for Respondents at 21. The fact that there are murky situations does not mean that the statute is vague; if that were so, Holder argues, then any federal statute that distinguished between general and specific attributes could be challenged for vagueness. See id. at 23. Holder argues that the “training” that HLP wants to conduct in fact involves the “specific skills” prohibited by the statute, such as how to petition the United Nations. See id. at 26. Holder contends that even if the training will not cause harm to anyone, Congress sought to ban that type of aid to a designated terrorist group through this statute. See id.
“Expert Advice or Assistance”
HLP claims that it is virtually impossible to provide any sort of advice that does not derive from scientific or specialized knowledge, and it is unclear as to exactly what “specialized knowledge” refers to. See Brief for Petitioners at 31. HLP contends that the definition itself offers little guidance, especially when both speakers and audiences may have different educational backgrounds, and therefore different ideas of what constitutes “specialized” knowledge. See id.
Holder counters that an ordinary person could easily determine whether knowledge is “specialized” by looking to the context provided by the words “scientific” and “technical” in the same provision. See Brief for Respondents at 31. Holder asserts that the meanings of words such as “scientific” and “technical” are easily understood and based on objective definitions. See id.
HLP argues that the definition of “service” as anything “done for the benefit of” a designated group conflicts with the government’s assertion that advocacy “on behalf of” a designated group would be legal. See Brief for Petitioners at 35. HLP argues that “service” may also raise problems when read together with the other disputed terms, making it difficult to determine whether any form of training, advice, or affiliation provided to the designated group would be permissible. See id. at 39–40.
Holder argues that “service” would not raise vagueness issues when taken in conjunction with other provisions in the statute; the Court strives to interpret statutes to avoid further constitutional doubts. See Brief for Respondents at 40. Therefore, the definition of “service” should not include conduct excluded by other provisions in the statute. See id. Holder also argues that HLP focused on the definition of service without referring to the requirement that a service be provided “to a foreign terrorist organization,” which requires “a direct relationship” with the group. See id. Further, Holder contends that “service” must be viewed in context of the entire statute and 18 U.S.C. 2339A(b)(1) contains a list of banned forms of material aid. See id. at 39. Holder contends that the list shows concern over services “rendered directly to a foreign terrorist organization,” instead of any service that may have some incidental benefit to a designated terrorist group. See id. at 41.
Finally, HLP argues that the term “personnel” is also unconstitutionally vague. See Brief for Petitioners at 38. HLP contends that, while “personnel” is defined as individuals acting under a designated group’s “direction or control,” the express exclusion of any activity that is “entirely independent” of the group fails to communicate what is prohibited. See id. at 36. HLP maintains that the ambiguity of the statute would dissuade people from collaborating or communicating with a designated group at all, for fear of criminal liability if the resulting article or petition was not considered to be “entirely independently” written. See id. at 37. HLP also contends that the term “personnel” presents many questions as to association, arguing that one cannot be a member of a group without acting under its “direction or control.” See id. at 37–38. Thus, HLP fears liability for any sort of affiliation with a designated group. See id. at 38.
Holder argues that many courts have agreed an ordinary person would be able to understand the definition of “personnel.” See Brief for Respondents at 35. While Holder agrees that there may be times where proof of independent action is unclear, that does not meant the statute itself is vague. See id. at 36. Holder asserts that a statute is vague only “when a question is indeterminate, not . . . [merely] difficult to answer.” See id. at 37. Holder insists that all of the activities HLP wants to conduct could be done entirely independently of the designated groups, but HLP instead wishes to coordinate their activities with terrorist groups, thus violating the “personnel” provision. See id. at 37–38.
Is it speech or conduct? What type of scrutiny applies?
HLP maintains that all of their proposed actions are pure political speech, and thus entitled to the highest protection via strict scrutiny. See Brief for Petitioners at 43. HLP notes that the Supreme Court will only apply strict scrutiny to criminal bans of pure speech, and argues that since all of their speech is political, whether teaching about and advocating for human rights or promoting peaceful resolutions to political disputes, the speech itself should be protected. See id. Holder contends that intermediate scrutiny should apply since the statute primarily regulates conduct rather than speech. See Brief for Respondents at 44. Further, the intermediate scrutiny test requires the government interest to be “unrelated to the suppression of free expression,” a threshold requirement that HLP contends is not met by the statute’s content-based restrictions of speech. See Brief for Petitioners at 62. Even if intermediate scrutiny would apply, HLP insists that the statute’s provisions would fail the test, since they restrict more speech than necessary to further the government’s interest. See id. at 65. HLP maintains that under intermediate scrutiny, the government must still show that speech advocating lawful nonviolent activities furthers terrorism in order to claim that regulating such speech would have a direct effect on reducing terrorism. See id.
HLP also argues that, because the statute imposes a blanket criminal prohibition on protected political speech without a time, place, or manner restriction, strict scrutiny is warranted. See Brief for Petitioners at 45. Holder agrees that the statute does not provide a time, place, or manner restriction, but maintains that the provisions are a content-based regulation of conduct, rather than speech, and therefore, intermediate scrutiny should apply. See Brief for Respondents at 49.
Also, HLP maintains that the statute triggers strict scrutiny since it discriminates based on content. See Brief for Petitioners at 47. Holder insists that the statute does not restrict certain kinds of speech made to a certain audience, since, under the statute, HLP would still be allowed to communicate its ideas to the public. See Brief for Respondents at 49. According to Holder, the statute only targets conduct, prohibiting provision of material support to terrorist groups regardless of whether speech is expressed in the process. See id. at 47. Holder maintains that the statute is not aimed at deterring freedom of speech or association, but seeks to promote a neutral and legitimate government interest: stopping the spread of terrorism. See id. at 53. HLP asserts that, despite the content-neutral motive, the statute still contains restrictions that are content-based on their face. See Brief for Petitioners at 50. HLP contends that nothing in the Congressional record shows the criminalization of pure political speech was necessary to further national security, and that their political speech only encourages lawful, peaceful activities. See id. at 51. Holder argues that HLP’s motives are irrelevant, and that Congress determined that any assistance provided to terrorists, even when promoting nonviolence, contributes to the strength and resources of the terrorist group. See Brief for Respondents at 56.
HLP also contends that the statute’s provisions violate the right of association. See Brief for Petitioners at 56–57. HLP points to De Jonge v. Oregon, which allowed a member of the Communist Party to participate in its activities since “peaceable assembly for lawful discussion cannot be made a crime.” Id. at 57 (citing De Jonge v. Oregon, 299 U.S. 353 (1937)). HLP argues that, while the government defends the statute as penalizing conduct, HLP only seeks to protect pure speech and not conduct. See id. at 58. HLP maintains that the statute penalizes speakers based on their particular association with a designated group without requiring proof that the speaker intended to engage in illegal conduct to further the group’s goals. See id. at 59. Holder argues that the statute does not ban membership, and even allows supporters of terrorist groups to advocate and praise the group’s goals and methods. See Brief for Respondents at 59. Holder maintains that the statute is consistent with De Jonge and allows for peaceful assembly and lawful discussion with terrorist groups. See id. at 61. Holder insists that the only thing the statute prohibits is any provision of financial or material support to terrorist groups, without seeking to infringe on associational rights. See id. at 59–60.
Holder contends that the AEDPA, as amended by the IRTPA, is a valuable tool in combating terrorism financing and is sufficiently precise to avoid violating First and Fifth Amendment rights. However, the Humanitarian Law Project (“HLP”) argues that the law criminalizes activity protected by the Constitution. Similarly, the parties disagree about the potential effects of the Supreme Court’s decision on anti-terrorism efforts and the ability of individuals and groups to provide humanitarian assistance.
Helping Foreign Terrorist Organizations
The Anti-Defamation League and a group of individuals with experience with terrorism issues argue that aid to humanitarian arms of foreign terrorist organizations helps these groups’ terrorism aims. See Brief of Amicus Curiae the Anti-Defamation League (“ADL”) in Support of Respondent at 5–6; Brief of Amici Curiae Scholars, Attorneys, and Former Public Officials with Experience in Terrorism-Related Issues (“Scholars”) in Support of Respondent at 3–5. They contend that, by providing humanitarian services, foreign terrorist organizations are able to gain adherents by portraying themselves as beneficial organizations for the community. See Brief of ADL at 5, 7, 15; Brief of Scholars at 13. Furthermore, amici argue that, because money is fungible, receiving resources for humanitarian aid allows foreign terrorist organizations to use their own money for terrorism activities (i.e. taking pressure off a terrorist organization’s resources). See Brief of ADL at 13–14, 17; Brief of Scholars at 9–11; Brief of Amici Curiae John D. Altenburg, Maj. Gen. U.S. Army (Ret.), et al. (“Maj. Gen. Altenburg”) in Support of Respondent at 35.
However, amici supporting the HLP argue that the AEDPA prohibits funding benevolent activities of organizations designated as foreign terrorist organizations. See Brief of Amici Curiae the Carter Center, et al. (“Carter Center”) in Support of Petitioner at 13–14, 18; Brief of Amici Curiae the Constitution Project and the Rutherford Institute (“Constitution Project”) in Support of Petitioner at 6. The Carter Center points out that individuals could be criminally prosecuted for assisting in activities that teach nonviolence and attempt to dissuade would-be terrorists from resorting to violence. See Brief of Carter Center at 6–7. The Constitution Project and the Rutherford Institute contend that, even if these activities show a beneficial effect in combating terrorism, they are still prohibited. See Brief of Constitution Project at 6.
Several amici argue that the AEDPA’s prohibition on providing resources to foreign terrorist organizations is an integral part of protecting the United States against terrorism. See Brief of Maj. Gen. Altenburg at 35–36; Brief of Amici Curiae Center for Constitutional Jurisprudence and Center for Law and Counterterrorism (“Center for Constitutional Jurisprudence”) in Support of Respondent at 15–16; Brief of Amicus Curiae Center on the Administration of Criminal Law in Support of Respondent at 4–5. Former members of the military point to the judgment of the Department of Justice that prohibitions on funding are “critical features of law enforcement’s current approach to counterterrorism.” Brief of Maj. Gen. Altenburg at 34–36. The Center on the Administration of Criminal Law stresses the importance of prohibitions against providing resources to foreign terrorist organizations as a piece in the complicated effort to combat terrorism. See Brief of Center on the Administration of Criminal Law at 4. The Center and the Anti-Defamation League both stress the importance of cutting off funding for terrorism as a means to intervene in the early stages of terrorist planning. See id.; Brief of ADL at 6.
However, supporters of the HLP contend that the law is dangerously ambiguous. See Brief of Carter Center at 6; Brief of Amici Curiae Victims of the McCarthy Era in Support of Petitioner at 2; Brief of Amici Curiae Academic Researchers and the Citizen Media Law Project (“Academic Researchers”) in Support of Petitioner at 8–9. They argue that the vagueness could be used to selectively prosecute disfavored individuals or groups. See Brief of Victims of the McCarthy Era at 2; Brief of Academic Researchers at 9. Furthermore, groups and individuals will not know what activities are prohibited and may avoid engaging in otherwise valuable work. See Brief of Academic Researchers at 8–9; Brief of Carter Center at 6.
This case addresses the constitutionality of certain terms found in 18 U.S.C. 2339B(a)(1). The Humanitarian Law Project argues a strict scrutiny standard should be applied to the statute, since it violates the Fifth Amendment due to vagueness and also infringes on First Amendment rights to expression of political speech and freedom of association. However, the government maintains that the statute is constitutional, regulating conduct rather than speech, so the statute need only pass intermediate scrutiny. The Supreme Court’s ruling on this issue will help determine not only how domestic citizens and organizations interact, if at all, with designated terrorist organizations in the future, but also whether courts will interpret similar statutory provisions as content-based regulations of speech, or as regulations of conduct that only incidentally affect speech.