Case Summary and Outcome

The Humanitarian Law Project sought to help Turkey’s Kurdistan Worker’s Party (PKK) and Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE) with peaceful conflict resolution. The Supreme Court upheld a federal law banning “material support” to “foreign terrorist organizations” and refused to apply the strict scrutiny standard required in content-based regulations. The Court deferred to the arguments based on national security and foreign relations, finding that assisting a terrorist organization could help “legitimate” the terrorist organization and free up its resources for terrorist activities.

Facts

This case involves the constitutionality of a statute that forbids knowingly providing support to a terrorist organization which includes “training, expert advice or assistance, personnel, and service.” The plaintiffs (which included two U.S. citizens and six domestic organizations) challenged the statute because they wanted to provide aid to the Kurdistan Workers Party and the Liberation Tigers of Tamil Eelam, which are both defined as terrorist organizations by the United States. The form of support the plaintiffs wished to provide included: “(1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes’; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey’; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief’; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka’.”

The plaintiffs in this case moved for a preliminary injunction which was granted by the District Court, holding that the statute was constitutional but may be unconstitutional as applied to the plaintiffs in this case. The Court of Appeals affirmed. The case then went back to the District Court who issued a permanent injunction “against applying to [the] plaintiffs the bans on ‘personnel’ and ‘training’ support.” The Court of Appeals again affirmed. Thereafter, Congress amended the statute to add “expert advice or assistance” as constituting support to terrorist organizations. The plaintiffs again brought suit ruling this unconstitutional as applied to them. The District Court held that this new provision was unconstitutionally vague. The parties cross appealed and Congress again amended the statute, this time significantly. The Court of Appeals rejected the first amendment claims and again remanded to the District Court, who granted partial summary judgment on the vagueness issue. The Court of Appeals affirmed, ruling that the statute was impermissibly vague. The government then appealed to the U.S. Supreme Court.

Decision Overview

The majority concluded that the statute involved in the case was constitutional as applied to these particular plaintiffs, but neglected to answer the more convoluted question of whether the statute would be constitutional in other cases. The plaintiffs advanced three arguments on the basis of constitutional law: (1) that the statute as applied to them was unconstitutionally vague, (2) that it violated their freedom of speech rights, and (3) that it violated their freedom of association rights. First, the Court ruled that the statute was not vague because, as applied to plaintiffs, the statutory terms were clear as to the plaintiffs’ proposed conduct. Second, the plaintiffs argued that the statute prohibits them from engaging in any political speech. However, on the contrary, the Court ruled that the statute does not prohibit speech at all as the plaintiffs may say whatever they want about the organization –they just cannot provide support to the organization. In coming to this conclusion the Court utilized intermediate scrutiny, “under which a content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” The Court found that the government interest in national security to met this standard. Finally, plaintiffs argued that this statute violated their freedom of association by criminalizing the mere act of associating with these terrorist organizations. The Court blatantly rejected this contention, ruling that the statute does not prohibit the mere act of association, but rather providing aid or support. Therefore, the majority ruled that the statute, as applied to plaintiffs, was constitutional.

The dissent agreed with the majority opinion in that the statute was not vague on its face. However, the dissent argued that the participation in lawful activities such as teaching and advocacy is not overridden by the government’s interest in controlling terrorism. The dissent reasoned that the government has not shown a compelling enough interest for prohibiting the “communication and advocacy of political ideas and lawful means of achieving political ends.” Further, the dissent noted that the majority misinterpreted the appropriate mens rea for “knowingly” aiding a terrorist organization, and would have remanded the case to the lower courts to determine exactly what type of activities the plaintiffs intended to engage in and whether these activities fall within the “knowing” mental state of the statute.