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Next major First Amendment test

At 10 a.m. Tuesday, the Supreme Court will hear one hour of oral argument in two consolidated cases, Holder v. Humanitarian Law Project et al. (08-1498), and Humanitarian Law Project et al. v. Holder (09-89).  David D. Cole, a Georgetown law professor, will argue first, for the Project, and U.S. Solicitor General Elena Kagan will then argue for the United States. Documents filed in the case may be found at this page on ScotusWiki.


Amid a hot political debate in Washington on whether the government is being tough enough on terrorists, the Supreme Court examines whether Congress acted unconstitutionally in making it a crime to provide a wide range of support to organizations that the government has blacklisted under anti-terrorism laws passed in 1996, 2001, and 2004.  The review of the 2001 provisions brings before the Court, for the first time,  the USA Patriot Act — the sweeping law passed by Congress six weeks after the September 11, 2001, attacks.


For the past twelve years, Americans who are descendants or supporters of the Tamil people, a linguistic group native to India, Sri Lanka and Malaysia with two thousand years of history, have been locked in a courthouse battle with the U.S. government.   As the case reaches the Supreme Court, it shapes up as the next major test of the First Amendment, following the Court’s deeply controversial ruling January 21 on the free speech rights, in politics, of U.S. corporations (Citizens United v. FEC). In fact, within hours after the Court decided the corporations case, a brief filed in the Tamils’ case repeatedly cited that ruling to support their First Amendment claims.

From the beginning, and still, the legal adversaries have proceeded on totally contradictory perceptions: the Tamil descendants insisting that they only want to provide completely benign aid to a humanitarian cause and, indeed, to encourage non-violence, with the government countering that the groups they want to aid are  deeply involved in widespread terrorist violence in Europe and Asia.

The challengers also are arguing that the government wants to wipe out a host of activity shielded by the First Amendment, and the government is contending that it has no such aim.  The Supreme Court will decide who is right when it rules on two cases being argued together. Each side partly won and partly lost in two rounds of lower court rulings, but each side will argue all parts of the case when they appear before the Justices.

The Tamils’ challenge, filed in federal court in 1998,  involves two U.S. citizens, California college professor Ralph D. Fertig and New York medical doctor Nagalingam Jeyaligam, along with the organization for which Fertig serves as president — the Humanitarian Law Project — and five pro-Tamil organizations in the U.S.  Those groups are Ilankai Thamil Sangam, Tamils of Northern California, Tamil Welfare and Human Rights Committee, Federation of Tamil Sangams of North America, and World Tamil Coordinating Committee.

Their lawsuit was filed to gain the right, without threat of criminal prosecution, to continue their efforts “to speak to, for, and in coordination with” two organizations that are on the U.S. list of designated terrorist groups.  Those two groups — the Kurdistan Workers’ Party and the Libertarian Tigers of Tamil Eslam — engage in “a wide range of lawful, non-violent activity,” and that is all that the Americans seek to support, their lawyers have argued.

The federal government, however, told the Court that the Workers’ Party (sometimes called the “PKK”) “has waged a violent insurgency that has claimed over 22,000 lives throughout western Europe,” and that the Tamil Tigers  organization “has used suicide bombings and political assassinations in its campaign for independence” in Sri Lanka, “killing hundreds of civilians in the process” — including the president of Sir Lanka and two other high government officials there.

The legal dispute began two years after Congress gave the U.S. Secretary of State power to designate a group as a “foreign terrorist organization” and criminalized “material support” to such a group.  As amended by the Patriot Act of 2001 and a new anti-terrorism law in 2004, the “material support” law has become the government’s main legal weapon in its “war on terrorism.”  Since 2001, the Justice Department has charged some 150 defendants with violations of the law, obtaining convictions in only about half of the cases.   The Department calls the law “a vital part of the Nation’s effort to fight international terrorism.”  The concept of “material support” for terrorism written into the law also has provided a legal rationale for the detention of individuals captured overseas and held at Guantanamo Bay.

Before the Supreme Court, the constitutional dispute tests five parts of the law.  Three of those were struck down by lower courts: criminalizing “material support” in the form of “service,”  “training,” or “expert advice or assistance.”  The lower courts found those to be unconstitutionally vague and sweeping too broadly, possibly criminalizing free speech.  Two other provisions were upheld below: support in the form of  “personnel” or “expert advice or assistance” if it was “derived from scientific or technical knowledge.”

In an earlier round in the case, the Tamils sought Supreme Court review, but that was denied in 2001.   The case then returned to lower courts, resulting in the split decision now before the Justices.

Petitions for Certiorari

The Justice Department, last June 4, took the case back to the Supreme Court, arguing that the decision to block enforcement of the three provisions “seriously undermines the statutory scheme created by Congress” to help the government fight terrorism globally.  It noted that some of the successful prosecutions it has carried out under the law involved parts that were nullified by the Ninth Circuit Court in its latest ruling.

The central theme of the government’s appeal is that the law is not aimed at curbing speech, but only targets “conduct,” and any impact on free expression is merely “incidental.”  It has also pressed the point that the law requires proof that the actions prosecuted were carried out with knowledge that they were helping a terrorist organization.  If there is any vagueness in the law’s wording, the petition contended, this last requirement cures it.

Moreover, it argued, the words and phrases nullified by the lower courts cannot be considered vague on their own, because they are “clear and readily intelligible to the average person.”

The petition noted that Congress had included in the law a direction to the courts where it might be challenged, mandating that they were not to read the law to violate the rights safeguarded by the First Amendment.  The lower courts should have followed that direction and found a way to uphold the law by narrowing its scope, if necessary to save it.  The Court, it added, would be free to interpret the law now so that it did not apply to “independent advocacy.”

A month later, the Tamils and their organizations opposed Supreme Court review of the government appeal, arguing that the lower courts had not split on the validity of the law, the decisions at issue had in fact left the “material support” law largely intact, and had put no “substantial limits” on the government’s authority to prosecute aid to terrorists.  In addition, they contended that the lower court left room for Congress to act further, if it chose to do so.

Still, the Tamils suggested that, if the Justices did agree to rule on the provisions tested by the government’s appeal, it should take on the entire case and decide on the validity of all five of the provisions at issue.   Their conditional petition vigorously attacked the law’s ban on support in the form of training or advice based on scientific or technical knowledge.  Those words are capable of supporting a criminal prosecution on a wide range of free speech activities, including publishing a statement by a leader of a blacklisted organization or providing legal advice if such a group filed a human rights complaint with the United Nations.

The main theme of the Tamils’ own petition is that the government itself had demonstrated, by the vigor of its defense of the most sweeping interpretation of the law, that advocacy of the most benign kind could draw a criminal charge.

The Court, in its first round of grants of review this Term on September 30, accepted both the government’s and the Tamils’ petitions, and consolidated them for briefing and oral argument.  In November, the Court granted the two sides’ proposal that the Tamils start the briefing as the “top side,” that both sides would file papers and argue the full range of the issues, and each side would have a chance to file briefs replying to the other side’s principal brief.

Merits Briefs

The Tamils’ brief on the merits renewed the argument that no one of the five words or phrases at issue could satisfy the First Amendment.  What the two individuals and six organizations seek to do, the brief asserted, involves “pure political speech,” and yet the government considers their activities to be criminal under the “material support” law.

Further bolstering its argument by relying on what government lawyers had said in lower court hearings in the case, the brief said that those lawyers have openly said it would be a crime “to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.”

Directly disputing the government’s claim that the law targets conduct, not speech, the Tamils’ brief said federal lawyers have argued that speech would, in fact, be targeted if it were of “benefit” to a listed group.   Protected speech under the Constitution, it added, “protects more than the abstract right to speak ‘independently,’ but also the right, asserted here, to speak to others, in association with others, and at the direction of others.”  Thus, it said, the government’s claim that the law would not apply to “independent advocacy” is not sufficient to save it.

In weighing the law’s validity, the brief said, the Court should use the most demanding constitutional standard: that is, the law would be valid only if it could satisfy “strict scrutiny.”  No more lenient standard is justified when “pure political speech” is at risk, it asserted.

In a significant strategic maneuver, the Tamils’ lawyers told the Court that it could avoid answering the constitutional questions altogether by reading into the law a new requirement of proof — that is, proof that an individual or group specifically intended “to further an organization’s illegal ends where, as here, pure speech and association are at stake.”  Members of Congress said, when the law was first passed in 1996, that it should reach as far as its could, “consistent with the Constitution,” and members said that would mean it reached only support for an organization’s “terrorist functions,” the brief noted.

The government’s merits briefs again stressed the ordinary meaning of the challenged provisions, saying they are readily understood and thus clearly pass any constitutional standard of vagueness.  But, it went on, the Court should not apply the “strict scrutiny” standard, as the Tamils advocated, because it has never done so in interpreting the scope of a criminal law that is challenged as too vague.

At its furthest reach, the law only “incidentally captures some expressive activity,” so a more tolerant constitutional standard is proper, the brief asserted.  The Tamils, it contended, “may express any views they wish” about the two listed organizations, or any other “terrorist organization.”

What the law does not allow, and this is all that it bans, is contribution of resources to listed groups “that further those groups’ activities,” according to the government.  In elaborating on that contention, the brief does suggest that the Justice Department does take a broad view of what kind of activity might “further” a listed group’s activities.  For example, it suggested that teaching a listed group how to make an appeal for relief to the United Nations, as the Tamils wish to do, would be teaching it a special skill, and that would bring it within the law’s reach.

The Tamils “may not believe such activity to be harmful, but they must understand, as all reasonable observers would, that the activity is covered by the statute’s terms.”

The brief went on to challenge the “hypotheticals” that the Tamils raised about providing legal or journalistic services.  The law, it argued, clearly allows the Tamils to engage in “independent advocacy,” so long as they do so “entirely independently.”

What is at stake here, it concluded, is not “pure speech” at all, since the Tamils remain free “to lobby Congress, to teach and advise on human rights, to promote peaceful resolution of political disputes, and to advocate for the human rights of minority populations” — all things that the Tamils said they wanted to do.

The government urged the Court not to consider the Tamils’ maneuver, suggesting a reading of the law to require specific intent to further the listed groups’ terrorism.  That issue was not raised in lower courts in the form outlined in the Tamils’ merits brief, and now comes too late, it said.


The Court is confronted in these cases with the potentially challenging task of seeing the listed organizations that are at the center of the government’s attack as simultaneously violence-prone and yet also dedicated to humanitarian causes.  While the government in its advocacy has not over-emphasized the violent record it attributes to the PKK and the Tamil Tigers, it has done enough to make sure that the Court is aware of that.

The two Americans and their six domestic organizations are not linked by the government to those kinds of activities, and yet the government, in discussing the plans that those individuals and groups have, goes to considerable lengths to suggest that the listed groups would “benefit.”  The practical effect is to make the separation more difficult.

And the government has the tactical advantage of knowing that Supreme Court Justices, like every one else in the Nation, are acutely aware of the ongoing threat of global terrorism, and may start out with a reluctance to curb the government’s use of its primary anti-terrorism tool.  The centrality of that law to the anti-terrorism effort is made abundantly clear in the government’s papers.

On the Tamils’ side, they have the advantage of knowing that the Court these days is willing to defend what it perceives to be First Amendment rights even when doing so is quite controversial (as in Citizens United).  But the degree to which this might aid the Tamils depends upon the success of their lawyers in persuading the Court that their activities are, indeed, “pure speech” protected by the First Amendment.

Further, the First Amendment argument might truly work for the Tamils if the Court were to take their suggestion to apply “strict scrutiny.”  The government, understandably, wants a more relaxed standard, and may, in fact, need that in order to prevail.

If the Court finds choosing up sides between the two basic constitutional positions too difficult, each side has offered it a narrowing interpretation of the “material support” law that could provide a fallback position for the Justices.  The more benignly it might view the activities of the Americans and their domestic groups, the more likely the Court may be to require proof of a goal of advancing terrorist violence.

The Court is expected to decide the cases before recessing for the summer in late spring or early summer.