At oral argument in Humanitarian Law Project v. Holder, (1) Justice Sotomayor pressed then-Solicitor General Kagan with a provocative question: under the federal law prohibiting material support to terrorism, is teaching a member of a terrorist group to play the harmonica a crime? General Kagan's response was, depending on your vantage, either deeply comforting or extremely alarming: "I would say ... there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas." (2) But if the government can constitutionally outlaw harmonica lessons, what speech and association with designated groups can it not reach? And where does that leave journalists, academics, and lawyers, as well as humanitarian aid, conflict resolution, and human rights organizations that work on issues related to designated groups or in places where designated groups operate--in some instances as the government of a region?
In Humanitarian Law Project, the Supreme Court addressed a constitutional challenge to the federal law that was the subject of Justice Sotomayor's query. That statute, 18 U.S.C. [section] 2339(B), prohibits the provision of "material support" to organizations the United States has designated as terrorist. In its decision, to the surprise of many, the Court held that the U.S. Constitution permits the government to outlaw at least some speech to or with foreign designated groups--even if that speech is aimed at reducing violence and promoting human rights, peaceful conflict resolution, and the use of international law.
This essay analyzes the Court's animating rationales in that case as well as the decision's potential impact on the variety of individuals and organizations that may come into contact with designated groups. I detail the doctrinal history that served as the backdrop of the Court's decision, and suggest that several of the Supreme Court's analytical distinctions--in particular, "independent" versus "coordinated speech" and foreign versus domestic designated entities--will face significant pressure in the future. Part I of the essay details the facts of the case and arguments made by both parties. Part II elaborates the Court's decision in Humanitarian Law Project and the intervention it made into U.S. law on speech and association with groups that engage in both violence and non-violent political activity. Part III discusses what future issues, litigation, and developments in constitutional doctrine the Court's decision foreshadows--and, critically, what questions it did not address.
II. HUMANITARIAN LAW PROJECT V. HOLDER
In Humanitarian Law Project v. Holder, the Supreme Court addressed the rights of speech and association for the first time in the context of the war on terror. The case presented a First and Fifth Amendment challenge to the federal law that bans provision of material support to terrorist organizations. The challenged statute, 18 U.S.C. [section] 2339B(a)(1), makes it a crime, punishable by fifteen years in federal prison, to provide "material support" to any entity the U.S. Secretary of State has designated as a foreign terrorist organization. (3) In addition to what might be considered traditional forms of "material support"--such as arms, trucks, or money--the statute also prohibits the provision of more intangible types of aid including "services," "expert advice or assistance," "training," and "personnel." (4)
Humanitarian Law Project involved the Kurdistan Workers Party (PKK) and Liberation Tigers of Tamil Eelam (LTTE). The PKK is a principal representative of the Kurdish ethnic minority in Turkey, a group of approximately 14 million people (5) that has been subjected to substantial discrimination and human rights violations. (6) Similarly, prior to its military defeat in May of 2009, the LTTE was a key ethnic Tamil organization in Sri Lanka that was committed to creating an independent Tamil state. (7) Both organizations have waged military insurgencies against the Turkish and Sri Lankan governments, respectively. …