Justices skeptical of anti-terror speech rules

Wednesday, February 24, 2010

  • Transcript of oral arguments

  • WASHINGTON — Line-drawing, a typical task in resolving First Amendment
    disputes at the Supreme Court, seemed to elude the justices yesterday as they
    heard arguments in a challenge to a key anti-terrorism law.

    At issue in Holder
    v. Humanitarian Law Project
    was a law that makes it a crime to give
    “material support,” including things like “expert advice” and training, to
    groups that have been designated by the secretary of state as terrorist

    Critics of the law say its terminology defining prohibited support is so
    vague that it would cover even the most benign forms of speech unrelated to
    terrorism — such as training in nonviolence or help in petitioning the United

    But that was Congress’ point in enacting the law, said Solicitor General
    Elena Kagan. Even seemingly unrelated aid boosts a group’s terrorist activities,
    she said.

    “Hezbollah builds bombs,” she told the Court. “Hezbollah also builds homes.
    What Congress decided was that when you help Hezbollah build homes you are also
    helping Hezbollah build bombs … . It’s a reasonable theory.”

    But that broad view of the law’s sweep seemed to draw a line too far for
    several justices, who came up with examples of speech or activities they would
    regard as difficult to ban under the First Amendment in almost any

    What seemed to bother the justices most was the assertion by Kagan that the
    law would bar a lawyer from writing an amicus curiae or “friend of the court”
    brief on behalf of such a group in U.S. courts.

    That statement came as Kagan defended the law as a “vital weapon in this
    nation’s continuing struggle against international terrorism.” When Justice Ruth
    Bader Ginsburg told her that “I am still having trouble with the line” between
    what kinds of communications the law allows and forbids, Kagan said mere
    “discussion of ideas” is not barred. But Kagan said the law does criminalize
    “the provision of actual support — services to the organization that the
    organization can use in its activities, both legal and illegal.”

    Justice Anthony Kennedy, who said he found the case “difficult,” then asked
    Kagan whether, as the government had conceded at an earlier stage, the law
    barred filing an amicus brief in a case on behalf of designated groups.

    Kagan said yes. “I think that would be a [prohibited] service … . To the
    extent that a lawyer drafts an amicus brief [for designated terrorist groups]
    … then that indeed would be prohibited.”

    At which point Justice John Paul Stevens said, “Then it says to me that your
    opponent’s argument here today is prohibited.” Stevens was referring to
    Georgetown University Law Center professor David Cole, who argued for the
    Humanitarian Law Project on behalf of people who wanted to teach international
    law and nonviolence to designated groups, but feared prosecution under the

    “No, no, no,” exclaimed Kagan, saying that Cole was representing entities
    wanting to aid the groups, not the groups themselves. But the damage seemed

    “Under the definition of the statute” offered by Kagan, said Justice Sonia
    Sotomayor, “teaching these members to play the harmonica would be unlawful.”

    That produced laughs, and more laughs followed when Justice Antonin Scalia
    posited that a terror group’s harmonica quartet “might tour the country and make
    a lot of money.”

    After some further discussion of the harmonica hypothetical, Justice Stephen
    Breyer snapped, “Just forget the harmonica for a second; I’m more worried about
    the lawyer.” Breyer asked incredulously whether the law at issue would bar a
    terror group that might have American members from being “entitled under the
    Constitution to have a lawyer in the United States who does legal work like
    filing amicus briefs.”

    Kagan appeared to back off her earlier stance somewhat, suggesting that if
    Sixth Amendment or due-process issues were involved, such aid might not be
    covered by the law.

    Kagan also said individuals were free to speak out about designated groups or
    even meet with or join the groups. “The discussion must stop when you go over
    the line into giving valuable advice, training, support to these

    Cole also received pointed questions about his view that government cannot
    prohibit speech “when that speech advocates solely lawful, peaceable

    Both Stevens and Justice Samuel Alito Jr. pressed Cole to see if he thought
    that, under the First Amendment, any speech or training given to designated
    groups could be prohibited.

    “It depends on the speech,” Cole said to Alito. “There may be some forms of
    training that are so closely connected that Congress legitimately seeks to
    proscribe, like training in bomb making.”

    Cole also said that if the law pertained only to aiding the Taliban or al
    Qaida during wartime, then wartime-treason laws could trump free-speech
    protections. Otherwise, Cole said, “There’s no dispute … that the government has
    a compelling interest in cutting off aid to terrorism. The question is whether
    it can do so by criminalizing pure speech.”

    When Cole drew parallels between the law at issue and laws restricting
    association with the Communist Party during the Cold War, Scalia said, “I think
    it’s very unrealistic to compare these terrorist organizations with the
    Communist Party.” Whereas communism drew philosophical adherents, Scalia said,
    “I don’t think that Hamas or any of these terrorist organizations represent such
    a philosophical organization.”

    Apart from Scalia, the government’s support on the Court seemed weak. Even
    Chief Justice John Roberts Jr., ordinarily a predictable supporter of government
    anti-terrorism measures, said it was “kind of hard to decide” the meaning of
    expert advice and other terms in the law. Roberts raised the possibility of
    remanding the case to lower courts to re-examine the law under a strict-scrutiny
    standard. Strict scrutiny in constitutional law means the state must show it has
    a compelling interest, such as national security, in imposing a restriction on a
    fundamental right, such as speech.

    The Holder case has its roots in the Antiterrorism and Effective Death
    Penalty Act of 1996, which gave the secretary of state the power to designate
    organizations as terrorist, and banned material support to those groups. Soon
    after the law passed, 30 organizations were tagged as terrorists, including the
    groups involved in the current case: the Kurdistan Workers Party, which
    advocates establishing a Kurdish state in Turkey, and the Tamil Tigers, which
    seeks creation of an independent Tamil state in Sri Lanka.

    After the law was found unconstitutionally vague in 1998, Congress amended it
    to clarify or expand its provisions, including in the 2001 USA Patriot Act,
    which added “expert advice or assistance” to the list of prohibited activities.
    The law was amended again in 2004, but each time it has been changed, judges
    have struck down parts of the law.

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