Plaintiffs sued Defendants challenging the constitutionality of a federal law that prohibited the giving of “material support or resources” to certain foreign organizations designated by the Secretary of State as engaging in terrorist activities.The district court partially granted Plaintiffs’ motion for a preliminary injunction. Defendants appealed. The court of appeals affirmed. The U.S. Supreme Court granted certiorari to review.
A federal law that prohibits individuals and groups from giving “material support” to certain foreign organizations designated as engaging in terrorist activities does not violate the First Amendment.
The Humanitarian Law Project (HLP), five other organizations, and two individuals (Plaintiffs) sought to provide training, education, and other resources to two designated terrorist groups: the Kurdistan Workers’ Party, also referred to as the PartiyaKarkeran Kurdistan (PKK) and the Libertarian Tigers of Tamil Eelam (LTTE). Plaintiffs filed suit in district court against U.S. Attorney General Eric Holder, Jr., and others (Defendants) challenging the constitutionality of a federal law that prohibited the giving of “material support or resources” to certain foreign organizations designated by the Secretary of State as engaging in terrorist activities. 18 U.S.C. § 2339B(a)(1). After a long, protracted litigation effort during which Congress amended the statute, the district court partially granted Plaintiffs’ motion for a preliminary injunction. Defendants appealed. The court of appeals affirmed. The U.S. Supreme Court granted certiorari to review.
Whether a federal law that prohibits individuals and groups from giving “material support” to certain foreign organizations designated as engaging in terrorist activities violates the First Amendment.
No. The court of appeals’ ruling is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.
(Breyer, J.):The Court incorrectly concludes that the Constitution allows the government to prosecute Plaintiffs for engaging in coordinated teaching and advocacy furthering the lawful objectives of the two groups, the PKK and LTTE. In support of its conclusion, the Court notes that the Plaintiffs’ assistance to the PKK and LTTE might further some vague terrorist activity. The First Amendment strongly protects Plaintiffs’ freedom of association. The term “coordination” is akin to “association” for constitutional purposes. Here, Plaintiffs’ coordination with the PKK and LTTE, groups that may engage in unlawful activity, does not render Plaintiffs’ First Amendment protection null and void. Not even the serious problem of international terrorism can require automatic forfeiture of an individual or group’s First Amendment rights. Here, the Court blindly trusted the intent and knowledge of Congress in passing the statute.
Plaintiffs claim they have the constitutional right to freely provide training, education, assistance, service, and other support to the PKK and LTTE but are prevented from doing so due to the statute. However, the statute does not prohibit independent advocacy or other expression of any kind. Plaintiffs are free to say what they want about the PKK and LTTE. They are also free to become members of the organizations. Congress has not sought to suppress ideas or opinions. Rather, it has prohibited “material support” which often does not take the form of speech at all. Defendants argue that the only issue in the litigation is conduct, not speech. However, § 2339B regulates speech. If Plaintiffs want to speak to the PKK or LTTE, much depends on what they want to say. If Plaintiffs’ speech to those entities communicates a “specific skill” or some “specialized knowledge” then it is barred. There is evidence in the record to conclude that the PKK and LTTE are deadly groups—each accounting for thousands of deaths abroad. Provision of “material support” to these groups can be in the form of money, arms, supplies, and even training and education through verbal instruction. Congress has concluded that providing terrorist groups with material support, in any form, furthers terrorism overall. Congress’ judgment in that respect is entitled to significant weight. It has the information, experience, and forethought that the Court lacks. First, Congress may prohibit Plaintiffs’ proposal to train members of the PKK on how to use humanitarian and international law to peacefully resolve disputes. A foreign terrorist organization might use the legal information to threaten, manipulate, and disrupt processes, not improve them. Second, Congress may prohibit Plaintiffs’ request to teach PKK members how to petition groups like the United Nations for relief. Such techniques could easily be used to raise funds to further violent acts. Finally, Plaintiffs propose to engage in political advocacy on behalf of the Kurds living in Turkey and on behalf of Tamils living in Sri Lanka. However, Plaintiffs’ proposals lack any real degree of specificity to be upheld. The Court’s holding does not suggest that future challenges will face the same fate.