Global Freedom of Expression

Holder v. Humanitarian Law Project

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    June 24, 2010
  • Outcome
  • Case Number
    561 U.S. 1
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    National Security
  • Tags

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Case Analysis

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.


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.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

As applied to the plaintiffs in this case, the Court ruled that the statute prohibiting aid to terrorist organizations was constitutional. Because the Court’s ruling is limited to the plaintiffs in this specific case, this provides a mixed outcome for freedom of expression. There could be a situation where the statute was unconstitutional as applied to a different set of facts.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., United States v. O’Brien, 391 U.S. 367 (1968)

    “[T]he Court rejected a First Amendment challenge to a conviction under a generally applicable prohibition on destroying draft cards, even though O’Brien had burned his card in protest against the draft.”

  • U.S., New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

    “The First Amendment `was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people'”

  • U.S., Lovell v. City of Griffin, 303 U.S. 444 (1938)

    “[R]ejecting licensing scheme for distribution of ‘pamphlets and leaflets,’ ‘historic weapons in the defense of liberty.”

  • U.S., Abrams v. United States, 250 U.S. 616 (1919)

    “[A]s against dangers peculiar to war, as against others, the principle of the right to free speech is always the same.”

  • U.S., Scales v. United States, 367 U.S. 203 (1961)

    Smith Act prohibited membership in a group advocating violent overthrow of the government. “The Court held that a person could not be convicted under the statute unless he had knowledge of the group’s illegal advocacy and a specific intent to bring about violent overthrow.”

  • U.S., Papachristou v. Jacksonville, 405 U.S. 156 (1972)

    “[H]olding vague an ordinance that punished ‘vagrants,’ defined to include ‘rogues and vagabonds,’ ‘persons who use juggling,’ and ‘common night walkers”

  • U.S., Grayned v. City of Rockford, 408 U.S. 104 (1972)

    “[R]ejecting a vagueness challenge to a criminal law that implicated First Amendment activities.”

  • U.S., Texas v. Johnson, 491 U.S. 397 (1989)

    If government regulation is not related to freedom of expression then the standard of review is the standard articulated in US v. O’Brien, 391 U.S. 367.

  • U.S., Cohen v. California, 403 U.S. 15 (1971)

    Whether the statute is unconstitutional as applied to a particular plaintiff depends on the offensiveness of the speech involved.

  • U.S., Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589 (1967)

    An example of a string of cases cited for overturning convictions based solely on being members of a communist party.

  • U.S., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

    “Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech” in which “[c]ore political speech occupies the highest, most protected position.”

  • U.S., Hill v. Colorado, 530 U.S. 703 (2000)

    “Laws punishing speech which protests the lawfulness or morality of the government’s own policy are the essence of the tyrannical power the First Amendment guards against.”

  • U.S., Citizens United v. FEC, 558 U.S. 310 (2010)

    “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

  • U.S., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)

    “The First Amendment’s protections “of speech, assembly, association, and petition, `though not identical, are inseparable.”

  • U.S., De Jonge v. Oregon, 299 U.S. 353 (1937)

    “Coordination’ with a political group, like membership, involves association.”

  • U.S., United States v. Stevens, 559 U.S. 460 (2010)

    Describes categorizes of unprotected speech.

  • U.S., Lovell v. City of Griffin, 303 U.S. 444 (1938)

    “[R]ejecting licensing scheme for distribution of ‘pamphlets and leaflets,’ ‘historic weapons in the defense of liberty.”

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The Supreme Court is the final court of appeals in the United States and as this is a decision of the highest court of appeal, it establishes binding precedent for future litigation. However, because the Court’s ruling is limited to the specific facts of this particular case, there could be another challenge brought against the constitutionality of this statute involving a different set of plaintiffs.

The decision was cited in:

Official Case Documents

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