In Brief – In these consolidated cases, which address the scope of the so-called “material support” statute, the Brennan Center submitted an amicus brief to the Supreme Court on behalf of academic researchers and a professional media association.
Argument Presented – Amici argue that the government’s interpretation of the “material support” statute violates the First and Fifth Amendments by inhibiting a wide range of pure speech that has neither the intent nor likely effect of furthering the unlawful activities of terrorist groups.
Procedural History – In the District Court and Court of Appeals for the Ninth Circuit, the case has a complicated procedural history detailed here.
The Supreme Court granted the litigants certiorari on September 30, 2009.
The Brennan Center and co-counsel submitted their amicus brief on November 23, 2009.
The Court heard oral arguments on Feb. 23, 2010.
In Detail – On Nov. 23, the Brennan Center filed an amicus brief in the U.S. Supreme Court in the consolidated cases Holder v. Humanitarian Law Project and Humanitarian Law Project v. Holder. The litigation presents the issue of whether the so-called “material support” statute, which criminalizes the provision of material support or resources to groups designated by the government as terrorist organizations, may be applied to “support” in the form of pure speech that has neither the purpose nor the likely intent of furthering terrorist activities.
The plaintiffs are organizations and individuals that provide advice and counseling intended to further the lawful activities of groups that have been designated terrorist organizations. For example, Humanitarian Law Project, a human rights organization and consultant to the U.N., has for many years provided the Kurdistan Worker’s Party—a designated terrorist organization—with peacemaking negotiation assistance and human rights advocacy training, in an effort to promote a non-violent resolution to the conflict between the Kurds and the Turkish government.
The plaintiffs ceased their activities once the organizations in question were designated as terrorist groups, and filed a lawsuit challenging the constitutionality of the ban as applied to their conduct. Among other things, they argued that the definitions of “material support” contained in the statute—in particular, the terms “service,” “training,” “expert advice,” and “personnel”—fail to specify sufficiently what conduct could expose them to criminal liability. The lower courts agreed with the plaintiffs that some of the statute’s terms are unconstitutionally vague, but upheld others. Both the government and the plaintiffs petitioned the Supreme Court for certiorari, and the Supreme Court agreed to hear the consolidated appeals.
The Brennan Center’s brief, written with Professor Burt Neuborne and filed on behalf of academic researchers and a professional media association, calls the Court’s attention to the wider consequences of criminalizing well-intentioned communications with or about terrorist groups. In particular, the brief contends that international communication with groups of all kinds is vital to public inquiry, education, and knowledge, and that academics and journalists must be able to communicate with terrorist groups in order to research and report on the problem of terrorism. It provides a number of examples of the ways in which the statute could be construed to criminalize the legitimate, professional activities of the members of these professions.
The brief argues that, insofar as the statute could be construed to criminalize communications (including advice, or counseling) that are neither intended nor likely to further the groups’ unlawful activities, it violates the First and Fifth Amendments. It urges the Court either to interpret the statute narrowly, so that it would apply only to communications that are both intended to advance the proscribed groups’ unlawful activities or likely to have such an effect.
Additional information can be found on the Center for Constitutional Rights’ (lead counsel for the plaintiffs) case page.
Sidney S. Rosdeitcher is co-counsel with the Brennan Center on the brief.