Content Regulation / Censorship, National Security, Commercial Speech
The Case of the Kyaw Printing House
In Progress Expands Expression
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The United States District Court for the Southern District of New York enjoined members and agencies in the Trump Administration from enforcing an executive order which would have prevented interaction between the International Criminal Court’s (ICC) Office of the Prosecutor and various law professors and a law center. The executive order had been enacted after the Office of the Prosecutor announced that it would be investigating allegations of international crimes committed in Afghanistan – including by US and allied officials. The professors and law centre regularly worked with and supported the Office of the Prosecutor, and argued that the executive order infringed their right to freedom of expression under the Constitution’s First Amendment by preventing them from engaging in certain speech to support the ICC and by exposing them to penalties for engaging in that speech. Although the Court found that there was no likelihood for success on other claims made by the plaintiffs, the Court held that they had demonstrated that there was a likelihood of success on the First Amendment claim, that there would be irreparable harm if an injunction was not granted, and that the balance of equities weighed in favour of granting the injunction. The Court emphasized that although there were national security and foreign policy interests motiving the executive order, the order was too broad and provided a chilling effect on the exercise of First Amendment rights.
On June 11, 2020, the president of the United States, Donald J. Trump issued Executive Order 13,928, Blocking Property of Certain Persons Associated with the International Criminal Court (the Order), and initial implementing regulations, 31 C.F.R. pt. 520 (the Regulations). The Order and Regulations purported to exercise authority under the International Economic Emergency Powers Act, 50 U.S.C. §§ 1701-1708 (IEEPA). IEEPA confers certain powers on the President which can be exercised when the President has declared a national emergency due to “any unusual and extraordinary threat” to US national security, foreign policy, or economy. The Act empowers the President to prohibit any activity regarding any property within US jurisdiction and authorize federal agencies to “designate” certain persons to be subject to restrictions.
The Order declared a national emergency in respect of the International Criminal Court’s (ICC) attempt to investigate, arrest, detain, or prosecute any US or allied personnel without their consent. The ICC is a permanent international court in The Hague, The Netherlands, with the power to investigate and prosecute individuals accused of international crimes. The US is not a party to the Rome Statute of the International Criminal Court – which established the court – and did not consent to the ICC exercising such power over its citizens. In March 2020, the ICC’s Office of the Prosecutor, under the Chief Prosecutor, Fatou Bensouda, was authorized by the Appeals Chamber of the ICC to open an investigation into certain crimes allegedly committed in state party Afghanistan (and other territories of states parties to the ICC) by the Taliban, Afghan security forces, and US and allied personnel.
The US objected to ICC jurisdiction being asserted over US and allied personnel. The Order “blocks and restricts transfer of property and interests in property that are in the United States … of any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General” to have engaged with the ICC’s efforts to investigate US officials or officials from a country allied to the US or to have “materially assisted, sponsored or provided financial, material or technological support” to ICC activities against the US [p. 6-7]. The Order also prohibited “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of” any designated person [p. 7].
On September 2, 2020, the Secretary of State designated Bensouda and Phakiso Mochochoko, head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division, as foreign persons subject to the Order’s sanctions and restrictions. The Order and Regulations stated that designated persons “are subject to economic sanctions” and “both designated persons and those who conduct certain types of prohibited interactions with designated persons may be subject to IEEPA’s civil and criminal penalties” [p. 2]. In terms of IEEPA, “designation results in the designated person’s inclusion on the Specially Designated Nationals List maintained by the Office of Foreign Assets Control (“OFAC”) in the Department of the Treasury” [p. 5].The effect of the designation of Bensouda and Mochochoko was that any “foreign” person who interacted with them was also subject to designation and any “non-foreign” person faced civil and criminal penalties under IEEPA.
On October 1, 2020, the Open Society Justice Initiative – a public interest law center – and four law professors – Diane Marie Amann, Milena Sterio, Margaret deGuzman, and Gabor Rona – brought an action before the US District Court for the Southern District of New York to challenge the lawfulness of the Order and Regulations. All the plaintiffs had connections to and had carried out work with the ICC and the ICC Office of the Prosecutor, which included providing amici curia briefs, academic materials, and research and advice to the office – particularly to Bensouda, and Mochochoko. These relations were negatively affected by the Order as the plaintiffs ceased engaging with Bensouda and Mochochoko and providing advice to the Office of the Prosecutor and amicus curiae briefs to the ICC.
The plaintiffs argued that the Order and Regulations infringed their rights under the First and Fifth Amendments of the US Constitution and were ultra vires under IEEPA. The First Amendment protects the right to freedom of expression and states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances”. The Fifth Amendment provides procedural safeguards for individuals facing criminal or civil legal proceedings.
The case was brought against President Trump; Secretary of State Michael R. Pompeo; Secretary of the Treasury Steven T. Mnuchin; acting Attorney General Jeffrey A. Rosen; Director of the Office of Foreign Asset Control Andrea M. Gacki; the Department of the Treasury, the Department of Justice, and the Office of Foreign Asset Control (OFAC).
The plaintiffs sought a preliminary injunction to bar the designation of them in terms of the Order and the enforcement of IEEPA’s civil and criminal penalties against them.
Judge Katherine Polk Failla delivered the judgment of the District Court. The central issue for the Court’s determination was whether the conditions existed for the granting of a preliminary injunction – including the likelihood of success in the claim that the Order and Regulations infringed the plaintiffs’ First Amendment rights.
The plaintiffs argued that the Order and the Regulations violated the First Amendment by preventing them from engaging in certain speech to support the ICC and by exposing them to penalties for engaging in that speech. They submitted that these constituted “content-based and viewpoint-based restrictions on [them] without adequate justification and tailoring” as they only restricted speech that would benefit the ICC Office of the Prosecutor and not speech that opposed it [p. 18]. The plaintiffs added that they feared designation under the Order as Secretary of State Pompeo had said that “[i]ndividuals and entities that continue to support Prosecutor Bensouda and Mr. Mochochoko materially risk exposure to sanctions” [p. 15].
The plaintiffs also submitted that the Order and Regulations’ broad language and lack of clarity violated their Fifth Amendment rights because they failed to provide the plaintiffs with notice about what kind of activities were prohibited which allowed for arbitrary enforcement. In addition, the plaintiffs argued that the measures were ultra vires IEEPA because they regulated or prohibited acts that were exempt from regulation or prohibition under IEEPA, and that the defendants had infringed the First and Fifth Amendments and exceeded their statutory authority under IEEPA and so the Order and Regulations should be set aside under the Administrative Procedure Act (APA).
The defendants argued that the matter was not ripe for determination because the plaintiffs had provided no evidence that they were likely to face designation under the Order and so had failed to demonstrate that they had standing to bring the matter. The defendants submitted that, in response to the plaintiffs’ First Amendment claim, the Order and Regulations were “content-neutral [and] are justified by ‘compelling’ national security and foreign affairs interests” and that they were sufficiently narrowly tailored to the government’s goal of deterring prosecution of US officials by the ICC [p. 18].
The Court stated that for the plaintiffs to succeed in their preliminary injunction application they had to establish that they were likely to “succeed on the merits” in the main application; that they were “likely to suffer irreparable harm in the absence of preliminary relief”; and that the “balance of equities” tilted in their favor and that “an injunction is in the public interest” [p. 13-14].
In determining the ripeness of the matter, the Court held that the plaintiffs had to establish standing by showing that they suffered an injury “concrete and particularized” and “actual or imminent” [p. 16]. Since designation under the Order was based on a specific but discretionary determination by multiple parties, the plaintiffs’ concerns were “not justified by more than speculation” [p. 16-17]. Despite Pompeo’s statements, only Bensouda and Mochochoko had actually been designated under the Order, and the Court found no credible threat of enforcement against the plaintiffs. In turn, the plaintiffs were unlikely to establish standing and succeed on this aspect.
The Court explained that – in evaluating the plaintiffs’ First Amendment arguments – it had to determine whether the plaintiffs’ “intended speech” would fall under the prohibited conduct in the Order and Regulations and then, if it did, whether the “restriction of that speech is constitutionally permissible under the circumstances” [p. 19]. The Court defined the plaintiff’s intended speech as including participating in meetings with and providing advice, training and research to the ICC officials, as well as providing amicus curiae briefs in support of the ICC Prosecutor. The Court held that this speech did fall under the Order’s prohibition of “provision of … goods, or services by, to or for the benefit” of the ICC Office of the Prosecutor and so held that the plaintiff’s “desired speech is prohibited by the Order and Regulations” [p. 19].
With reference to the US case of Reed v. Town of Gilbert 576 U.S. 155 163 (2015), the Court noted that content-based restrictions occur when the regulation of speech depends on the “topic discussed or the idea or message expressed” [p. 20]. The Court held that, because only speech which benefited Bensouda and Mochochoko was restricted, the Order and Regulations constituted a content-based restriction and that the Court was therefore required to apply “strict scrutiny” to the restrictions [p. 21]. The Court explained that the strict scrutiny framework obliged the defendants to “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest” and, with reference to the United States v. Playboy Entm’t Grp., 529 U.S. 803, 813 (2000) case, stressed that a law cannot be narrowly tailored if there is a “less restrictive alternative” available to achieve the same objective [p. 21].
The Court accepted the stated purpose of the Order and Regulations as the government’s interest in preventing the investigation of US (and allied) officials by the ICC, and noted that it was “well-established” that US foreign policy protection was a fundamental governmental interest and the Executive was entitled to deference regarding issues of foreign affairs and national security [p. 22]. The Court then examined whether the Order and Regulations were sufficiently tailored in achieving that purpose. The plaintiffs had argued that the Order and Regulations were so broad that they prohibit any speech which supports the ICC Office of the Prosecutor (including providing support on other issues before the ICC which the US has traditionally supported). The Court dismissed the defendants’ position that the Order and Regulations only prohibited support to Bensouda and Mochochoko, noting that “it is unclear to the Court how Plaintiffs could provide support to the Office of the Prosecutor … without indirectly benefiting Ms. Bensouda”: the defendants’ distinction between supporting the Office of the Prosecutor and supporting Bensouda was “illusory” [p. 23]. Accordingly, the Court held that “the restrictions prohibit or chill significantly more speech than even Defendants seem to believe is necessary to achieve their end” [p. 23] and that the Order and Regulations were therefore not sufficiently narrowly tailored to meet the strict scrutiny threshold for content-based restrictions.
The Court also dismissed the defendants’ statement that the Office of Foreign Asset Control (OFAC) would “implement a licensing scheme for the sanctions regime” which would act as a “safety valve” against freedom of speech restrictions. The Court referred to the City of Lakewood v. Plain Dealer Publishing Co. 486 U.S. 750 (1988) case in emphasizing that “the Government may not condition speech ‘on obtaining a license or permit from a government official in that official’s boundless discretion’” [p. 24]. The Court did not rule out that further regulations promised by the defendants could mitigate concerns, but it concluded that the measures “on the current record” were not narrowly tailored [p. 24].
The Court held that the plaintiffs were therefore likely to succeed in their claim that their First Amendment Rights had been infringed.
Regarding the plaintiffs’ Fifth Amendment claim, the Court stated that they had not demonstrated that they would be injured by the vagueness in the Order as that related only to the “designation” process (which does not apply to the plaintiffs). Accordingly, the Court held that the plaintiffs would be unlikely to succeed in this claim. The Court also held that the plaintiffs were unlikely to succeed in their claim that the defendants had acted ultra vires the IEEPA because the issue was not ripe for judicial determination. The Court also examined the plaintiffs’ argument that the prohibition of communication with the ICC Office of the Prosecutor violated the section of IEEPA which barred the President from outlawing the sharing of “information or informational material” with another country. The Court found that there was no evidence that the defendants would prohibit that sharing of information in conflict with IEEPA and so held that the matter was “not properly before the Court” [p. 31].
Having found that there was a likelihood of success on the First Amendment claim, the Court examined the second prong of the preliminary injunction test – whether there would be irreparable harm if the injunction was not granted. The Court referred to the Bronx Household of Faith v. Board of Education of the City of New York 331 F.3d 342 (2d Cir. 2003) and N.Y. Progress & Prot. PAC v. Walsh 733 F.3d 483, 488 (2d Cir. 2013)) cases and noted that courts could presume irreparable harm when the alleged injury directly limited speech because “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury” [p. 31]. The Court also held that the plaintiffs had demonstrated that there was a “chilling effect” on their ability to exercise their First Amendment rights because of the threat of sanctions being imposed in terms of IEEPA. Accordingly, the Court held that “enjoining Defendants from enforcing IEEPA’s civil and criminal penalties against Plaintiffs would eliminate this chill and prevent irreparable harm” [p. 32].
The Court addressed the third element of the preliminary injunction test – the balance of equities and public interest – by balancing the “competing claims of injury” and considering the effect of “granting or withholding the requested relief”, including the “public consequences in employing the extraordinary remedy of preliminary relief” [p. 32]. The plaintiffs had argued that the preliminary injunction should be granted because “[t]he Government does not have an interest in the enforcement of an unconstitutional law” and the defendants had stressed the importance of the “significant national security and foreign policy interests” at play [p. 32]. The Court recognized those governmental interests, but noted that “national security concerns must not become a talisman used to ward off inconvenient claims” [p. 33]. Accordingly, the Court held that the national security justification was “inadequate to overcome plaintiffs’ and the public’s interest in the protection of First Amendment rights” and that the balance of equities favored the plaintiffs [p. 33].
The Court therefore granted the plaintiffs’ motion for a preliminary injunction in part, enjoining the defendants from enforcing IEEPA’s civil or criminal penalty provisions against the plaintiffs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In finding that the Executive Order which sought to protect national security was not sufficiently narrowly tailored to justify the limitation of First Amendment rights, the District Court explicitly stated that national security concerns cannot be used to “ward off inconvenient claims” [p. 33]. The judgment demonstrates that executive action cannot unilaterally infringe freedom of expression in the interests of national security and foreign policy.
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