July 29, 2010
On June 21, 2010, the Supreme Court announced its decision in Holder v. Humanitarian Law Project. The case involved an as-applied challenge to the material support provisions of 18 U.S.C. § 2339B, which make it a crime to provide support in the form of "training," "expert advice or assistance," "service" and "personnel" to entities designated by the Secretary of State as foreign terrorist organizations. The question was whether, as applied to plaintiffs, who wished to provide some of these forms of support to the Partiya Karkeran Kurdistan (PKK) and the Libertaion Tigers of Tamil Eelam (LTTE), the provisions would violate the Due Process Clause of the Fifth Amendment, or the First Amendment rights to freedom of speech and association.
In a 6-3 opinion delivered by Chief Justice Roberts, the Court held that the provisions may constitutionally be applied to plaintiffs' proposed activities. The Court reasoned 1) that the terms "training," "expert advice or asistance," "service" and "personnel" provide a person of ordinary intelligence fair notice of what is prohibited, 2) that the terms did not include independent political advocacy but rather required concerted activity with the designated organizations, 3) that the Government's interest in combatting terrorism is an urgent objective of the highest order, 4) the judgment of Congress and the Executive Branch that the speech and activities plaintiffs proposed to undertake would assist these groups with a broader strategy of terrorism was reasonable as this seemed entirely foreseeable, and 5) that § 2339B does not penalize mere association with these groups, but only prohibits the act of giving material support.
To discuss the case, we have Charlotte School of Law Professor D. Scott Broyles.