On Monday, June 21, the Supreme Court announced its ruling in Holder v. Humanitarian Law Project. In a 6 to 3 decision, the Court held that the material-support statute, 18 U.S.C. § 2339B, is constitutional as applied to the forms of support the plaintiffs sought to provide to foreign terrorist organizations.
The case was brought over ten years ago by several humanitarian groups concerned that their activities in relation to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) would lead to prosecution under the material-support statute. Both the PKK and the LTTE have been designated as foreign terrorist organizations by the State Department.
Ralph Fertig, a professor at the University of Southern California, argued that the humanitarian groups did not intend to further any illegal activities but instead hoped to “train members of the PKK to use humanitarian and international law to resolve disputes; to engage in political advocacy on behalf of Turkish Kurds; and to teach the PKK to petition groups such as the UN for relief.”
Writing for the majority, Chief Justice Roberts rejected both of the plaintiffs’ main claims. First, the Court stated that the statute provides fair notice in relation to the plaintiffs’ proposed conduct and therefore is not unconstitutionally vague. Second, the Court stated that the statute does not violate the plaintiffs’ First Amendment right to free speech.
In addressing the second claim, the majority noted that Congress rejected the plaintiffs’ argument that their support would only advance the legitimate activities of the PKK and LTTE when it passed the material-support statute and that the record confirms that Congress was justified in rejecting the argument. The Court noted that although it does not defer to the government’s reading of the First Amendment, it is mindful that government agencies charged with combating terrorism have strongly supported Congress’s finding that contributions to terrorist groups further the groups’ illegal activities, even if intended to support legal activities.
The Court clarified that the question is “not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and the LTTE in the form of speech.” Chief Justice Roberts emphasized that the “statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization,” and does not cover independent advocacy that might be viewed as promoting the group’s legitimacy.
Organizations such as the Carter Center and the American Civil Liberties Union were disappointed by the Court’s ruling. Former president Jimmy Carter stated that the statute inhibits the work of human rights and conflict resolution groups as well as peacemaking organizations that must interact directly with terrorist groups.
Chief Justice Roberts was joined in his opinion by Justice Kennedy, Justice Thomas, Justice Scalia, Justice Alito, and Justice Stevens. Justice Breyer wrote a dissent, in which Justice Sotomayor and Justice Ginsburg joined.
The dissent agreed with the majority that the statute is not unconstitutionally vague but argued that the government failed to show that an interpretation of the statute that would prohibit the plaintiffs’ activities serves the government’s compelling interest in combating terrorism.