Analysis

For the first time in nearly nine years of what the government has called a “war on terrorism,” the Supreme Court on Monday ruled decisively in the government’s favor — but still  stopped short of providing an unqualified victory.  The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions.  But the Court added a significant qualifier: such activity may be  banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.

Conceptually, the ruling in companion cases involving supporters of dissidents in Turkey and Sri Lanka borrowed from a constitutional idea that the Court has used for years for domestic political organizations: the government has less power to control independent political advocacy than it does actions that are coordinated with the political parties.  That concept was moved to the global stage, involving U.S.-based organizations or individuals who favor the peaceful goals of two overseas groups blacklisted by the State Department.

The cases of Holder v. Humanitarian Law Project, et al. (08-1498) and Humanitarian Law Project, et al., v. Holder (09-89) are the only war-on-terrorism cases the Court will decide this Term.   They involved the federal law that bans “material support” to listed foreign terrorist organizations — the law that is the government’s favorite legal weapon against terrorists..  Although that law is most often used for criminal charges against violent actions or threats of violence, Monday’s decision did not involve that situation.  The groups and individual involved do not support any terrorist actions by the listed groups.  Rather, they wanted to avoid criminal prosecution for what they considered free speech or other forms of public advocacy to help the listed groups achieve peaceful goals.

Chief Justice John G. Roberts, Jr.,, who wrote the majority opinion, sought to emphasize how narrow the ruling was, even while making it unmistakably clear that the Court was quite willing to defer to the political branches — Congress and the Executive Branch — on what they decide needs to be done to protect the U.S. from terrorism.  Thus, the main opinion moved back and forth between stress on its narrow scope, and an acceptance that even benign actions can be interpreted as helping to advance the dangerous goals of listed organizations.

The fact Justice John Paul Stevens, who has written some of the Court’s strongest opinions rejecting government claims to power over terrorism, joined without quibble in the Roberts opinion supported the notion that it was narrow.  (Stevens, no doubt, also was attracted to an opinion that applied the most rigorous test of the government power to control speech — that is, it must satisfy “strict scrutiny” — to a law designed to protect national security.)  But the fact that the Court’s other liberal-leaning Justices filed a strongly worded dissent — and Justice Stephen G. Breyer took the somewhat unusual step of orally reciting the dissent from the bench — supported the appearance that the Court had gone quite far to allow criminalizing of speech activity in this realm of the law.

This marked the first time in the Court’s recent interpretation of war powers that it moved away from issues related to capture and detention of terrorism suspects, and directly confronted the government’s authority to use its criminal law to punish or at least to disrupt or prevent terrorism acts.  Its broadest ruling so far on detainees was its 2008 ruling in Boumediene v. Bush giving captured suspects a constitutional right to challenge their continued confinement.  In applying the Boumediene decision over the past two years, lower federal courts have gradually moved toward the general conclusion that detention is allowed, but only for individuals who have acted under the control of or as a direct part of the Al-Qaeda or Taliban terrorist networks.

Now, turning to criminal law enforcement as an anti-terrorism tool, the Supreme Court came to something of the same conclusion.  Speech or other forms of advocacy will escape criminal prosecution so long as it is “independent advocacy,” or constitutes “any activities not directed to, coordinated with, or controlled by foreign terrorist groups,” in language used in the Chief Justice’s opinion.  Congress, in enacting various versions of the “material support’ law, has avoided imposing any restrictions on those actions, Roberts stressed.  Moreover, no kind of speech activity can be punished under the law, according to the opinion, unless the speaker knows the foreign group being supported is a terrorist organization on the government’s banned list.

Along with that attempt to pare down the law’s reach, the Court majority also pointed out that it had not endorsed the government’s view that the concept of “material support” reaches very far indeed.   Roberts noted that the government had argued that the law only sought to regulate conduct, not free speech.  The government has taken the view that organizations on its terrorist list are so dangerous and so criminal in their actions that any kind of support for them can be prosecuted without violating the First Amendment.

The Court agreed that the two listed organizations involved are “deadly groups” and the opinion recounted some of their violent actions, and then commented: “It is not difficult to conclude as Congress did that the ‘taint’ of such violent activities is so great that working in coordination with or at the command of the [two organizations] serves to legitimize and further their terrorist means.”

Still, the Court went on to try to assure U.S. organizations and citizens who want to support only those two groups’ humanitarian efforts that they remain free, under the law, to “say anything they wish on any topic.  They may speak and write freely about the [two groups], the governments of Turkey and Sri Lanka, human rights, and international law.  They may advocate before the United Nations.”  But, in each of those scenarios, they must do so on their own, independent of the two groups on the government list. the Court said.  (While the opinion also said that the U.S. organizations and individuals may not be punished for becoming members of the two listed groups, it did not indicate how they could do that and still remain “independent” of them.)

Most of what the law is designed to cover, the Chief Justice wrote, is not speech at all.  But, when it does apply to speech, he added, “the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in corddination with foreign groups that the speaker knows to be terrorist organizations.”

However, the Court also laid out strict warnings to lower courts not to closely second-guess the government’s claims of what kinds of activity does advance the terrorist goals of foreign organizations on the official list.  “Congress and the Executive,” the Chief Justice wrote, “are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not….When it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked,…and respect for the Government’s conclusions is appropriate.”

The Roberts opinion was supported in full by Justices Stevens, Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.   Justice Breyer wrote the dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Breyer’s opinion argued that the majority’s requirement for “coordination” of speech activity with a terrorist group was not a limitation in any real sense.  “There is no practical way,” he wrote, “to organize classes for a group (say, wishing to learn about human rights law) without ‘coordination.’ “  Moreover, the dissent said, the Court had accepted the government argument that even support for a group’s peaceful aims could help “legitimate” that group, and thus further its violent acts, too.  “Once one accepts this argument, there is no natural stopping place,” Breyer concluded.

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Posted in Holder v. HLP, Merits Cases