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New Zealand Law Students Journal |
Last Updated: 24 September 2015
PAINTING WITH A BROAD BRUSH - THE CONSISTENCY OF THE
MAJORITY APPROACH IN HOLDER WITH FREEDOM OF SPEECH
INURA
FERNANDO
“Because of the changeable and explosive nature of contemporary international relations ... Congress ... must, of necessity, paint with a brush broader than that it customarily wields in domestic areas”
- Chief Justice Warren[1]
Introduction
Since the aftermath of 9/11 and the passage of the United Nations
Security Council Resolution 1373, the tension between successful
global efforts
to tackle the financing of terrorism whilst keeping avenues open for the
protection of constitutional rights such
as freedom of speech has come to the
fore.[2] The following discussion
about the United States (US) Supreme Court’s decision in Holder v
Humanitarian Law Project[3] will
provide an opportunity to reach a greater critical appreciation of the issues,
which goes beyond the rhetoric associated with
US counter-terrorism
policy.
This paper will discuss the consistency of the majority approach
in Holder to the interpretation of the material support statute, 18
U.S.C.S § 2339B, with freedom of speech.
It is argued that the
majority approach in Holder exemplifies the notion of ‘painting
with a broad brush’. This thesis is premised on the majority`s acceptance
of sweeping
arguments without a principled basis and the superficial treatment
of key underpinnings of First Amendment case law. Consequently,
the dividing
line between legal and illegal activity is blurred with respect to the material
support statute and speech. Such an
approach has a potential to
‘chill’ the exercise of the freedom of speech.
This paper
will be organised as follows. Part II will explore the key paradigms that
underlie the majority approach such as the war
paradigm and preventative
paradigm. Part III will briefly summarise the decision. Part IV and Part V will
consider arguments for
and against the consistency of the majority approach with
freedom of speech. Part IVA will explore the gulf between the majority
approach
and analogous First Amendment case law. Part IVB will consider the problems
associated with analytical distinctions evident
in the majority`s reasoning.
Part VA will consider the merits of preserving freedom of speech in principle
while subjugating it in
practice. Part VB will ask whether the reasoning
provides sufficient avenues for the exercise of free speech or whether it is
curtailed.
Finally, Part IVC and Part VC will explore two competing
understandings about the majority application of First Amendment scrutiny
to 18
U.S.C.S § 2339.
II.
Background: 9/11 And The Emergence Of
New Paradigms In Global Counter-Terrorism Policy
A. The 9/11
Terrorist Attacks
There is no contention that the events of 11 September 2001 have had an
indelible impact on the course of world history and counter-terrorism
policy.
Certainly, 9/11 has been formative in America`s ‘War on Terror’
and has led to the predominance of both the war paradigm and the
preventative paradigm amongst those charged with enforcing US counter-terrorism
law and policy. A key legislative response to 9/11 was The PATRIOT Act, a 342
page document, focused on eradicating any competitive
advantages afforded to
terrorists in the pre-9/11 US legal
system.[4]
B. The War Paradigm
An initial inquiry is how to define terrorism. This influences how we
frame counter-terrorism law and policy. Is terrorism a crime
or an act of
war?[5] The war paradigm defines
terrorism as the latter. The war paradigm is characterised by the predominance
of the rhetoric of war in
counter-terror policy and the alignment of resources
and authority with that rhetoric.[6]
However Kent Roach argues that we should define terrorism as a crime and this
new “restrained” definition of terrorism
will be in line with the
Ottawa Principles on Anti-Terrorism and Human
Rights.[7] This approach will
be supported by the position taken by this paper.
C. The Paradigm of Prevention
The paradigm of prevention was coined by US Attorney General John
Ashcroft.[8] David Cole defines this
paradigm as:[9]
An amalgam of tactics in which the Government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future.
The operation of this paradigm is important in understanding the reading
of the material support statute in the Holder
case.[10]
III.
The Holder decision
A. The
Facts
This case concerns the application of 18 U.S.C. § 2339B, commonly
referred to as the material support statute. This statute imposes
a criminal
penalty of up to 15 years in prison or a fine or both for anyone who knowingly
provides material support or resources
to a Foreign Terrorist Organisation
(FTO).[11] The latest statutory
definition of material support
encompasses:[12]
[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.
The Liberation Tigers of Tamil Elam (LTTE) and the Patiya Karkeren
Kurdistan (PKK) are designated as FTO`s by the Secretary of
State.[13] Two United States
citizens and six domestic organisations (including the Humanitarian Law Project
(HLP)) applied to the United States
Supreme Court to challenge the application
of 18 U.S.C. § 2339B with respect to four types of material
support, namely, ‘training’, ‘expert advice or
assistance’, ‘service’
and
‘personnel’.[14] The
challenge entailed the application of these terms to certain specified
activities the plaintiffs wished to engage in, including
engaging in political
advocacy on behalf of Kurds and Tamils living in Turkey and Sri Lanka
respectively; training the PKK on how
to use humanitarian and international law
to peacefully resolve disputes and how to petition various representative
bodies, such
as the United Nations, for relief. The challenge is premised on
three constitutional grounds; the § 2339B violates the Due Process
Clause of the Fifth Amendment as all four terms were “impermissibly
vague”;[15] § 2339B
violates their freedom of
speech;[16] and § 2339B
violates their freedom of
association.[17]
B. The Majority Decision
Firstly, the majority rejected the plaintiffs’ threshold argument
that the Court should interpret the material support statute,
with respect to
speech, to require proof that the defendant intended to further FTO`s illegal
activities.[18] This was based in
light of text of the statute and what the Court perceived to be Congress’
intent with respect to the
statute.[19]
Secondly, the Court
rejected the plaintiffs’ claim under the Due Process Clause of the Fifth
Amendment. The Court distinguished
the terms ‘training, ‘expert
advice or assistance’, ‘service’ and ‘personnel’
from terms
such as ‘annoying’ and ‘indecent’ that were
held to be unconstitutionally vague.
[20] The former terms were found to
not require “... similarly untethered, subjective
judgments.”[21] The Court
found that a person of ordinary intelligence would understand that the
plaintiffs’ proposed activities would fall
within the material support
statute.[22]
Thirdly, the
Court rejected the Government`s argument that the proper standard of review is
‘intermediate scrutiny’ as
outlined in United States v.
O'Brien.[23] The Court rejected
the Government`s argument that 2339B regulated conduct, not
speech.[24] The Court held that
2339B entailed the content based regulation of
speech[25] and therefore required
‘strict scrutiny’.[26]
The Court cites Cohen v
California[27] for authority for
this proposition.
Fourthly, the majority rejected the plaintiffs’
claim based on freedom of speech under the First Amendment as the material
support
statute only covers “... a narrow category of speech to, under the
direction of, or in coordination with foreign groups that
the speaker knows to
be terrorist
organizations.”[28]
In
applying the aforementioned strict standard of scrutiny to the speech regulated
by 2339B the majority took a largely deferential
approach. The Court considered
arguments about whether the plaintiffs’ formulation of ‘material
support’ meant
to “promot[e] peaceable, lawful conduct” fell
under scope of 2339B. [29] These
arguments included:
(a) Whether the Plaintiff’s formulation tended to add legitimacy to the FTO, enabling it survival and ability to recruit more members.[30]
(b) Whether terrorist organisations could meaningfully separate the support of their lawful activities from the support of illegal activities such as terrorism;[31]
(c) The fungibility of any support given to FTO`s;[32]
(d) The possibility to threaten the United States’ relationships with its allies and collaborative efforts at combatting terrorism;[33]
(e) The dynamic nature of terrorism and difficulties to assess threats;[34]
(f) the possibility for FTO`s to utilise learning from the plaintiffs’ speech to “...threaten, manipulate and disrupt.”[35]
C The Minority Decision
The minority concurs with the majority in rejecting the Government`s
contention that an intermediate standard review would apply in
this
case.[36] However, the minority
differ in applying this strict standard of review when speech is
implicated.
The minority holds that ‘coordination’ with FTO`s
alone will not necessarily vitiate the protection of speech under the
First Amendment.[37] The
minority cite Brandenburg v Ohio for the proposition that the First
Amendment protection is even afforded to advocacy of illegal activity if that
advocacy is not
“... directed to inciting or producing imminent lawless
action and ... likely to incite or produce such
action.”[38]
The
minority also highlights the credibility and the transparency concerns
associated with accepting the Government`s arguments relating
to the
legitimising effect of allowing the plaintiffs’
activities,[39] the fungibility of
any kind of support given to
FTO`s[40] and the possibility that
peaceful speech imparted may be used to “... threaten, manipulate and
disrupt.”[41]
It
invokes the avoidance of constitutional doubt doctrine and applies a
“fairly possible” interpretation that balances
the competing
considerations.[42]
This
fairly possible interpretation is
thus:[43]
In particular, I would read the statute as criminalizing
First-Amendment-protected pure speech and association only when the
defendant knows or intends that those activities will assist the organization's
unlawful terrorist actions.
The relevant mens rea standard under
this interpretation is where a person demonstrates requisite knowledge by
showing he or she is aware or wilfully blind
to “... a significant
likelihood that his or her conduct will materially support the organization`s
terrorist ends.”[44] The
minority argued that this reading of the material support statute is consistent
with the statute`s text. Breyer J focuses on
the statutory of use of the word
“material”. Because the terms ‘training’, ‘expert
advice or assistance’,
‘personnel’ and ‘service’
all “... fall under the definition of the term ‘material
support’,
these activities fall within the statute's scope only when they
too are
‘material’.”[45]
IV.
Arguments Against Consistency With
Freedom Of Speech
A. Inconsistency with First Amendment Case
Law
A critical perspective on the majority`s approach entails the recognition of
the inconsistency with relevant first Amendment case
law. Namely, these include
cases about the US Communist Party in the McCarthy era such as De Jonge v
Oregon,[46] Communist Party of the
United States v Subversive Activities Control
Board[47] and Brandenburg v
Ohio.[48] Amanda Shanor argues
that the majority sub silentio overruled these Communist Party cases. The
cornerstone of these cases is the nexus between speech and violence, required
before speech
being limited.[49]
These cases culminated in Brandenburg, where the Supreme
Court, in striking down Ohio`s old syndicalism statute, held that the
constitutional protection of free speech is
to be retained even if one advocates
unlawful activity as long as there was no threat of producing imminent lawless
action.[50] Conversely, the
majority in Holder held that the legal prohibition of speech co-ordinated
with FTO`s that advocates peaceful ends is
constitutional.[51] The majority
argued they had grounds to distinguish the Communist Party cases in light of the
facts of the present case. The Court
finds these cases are limited to where a
law proscribes membership in a dual purpose
group.[52] The majority also
suggests that the minority slights the challenges in applying a specific intent
test in the context of modern global
terrorism.[53]
However, given
that Holder was the first Supreme Court case about the First Amendment
and counter-terrorism law after 9/11 such a deferential approach is possibly
warranted.[54] In this context, we
could liken the majority`s ‘broad brush’ approach to what Sunstein
calls an “incompletely theorized
agreement”.[55] An
incompletely theorised agreement is a constitutional construct that attempts to
reconcile competing views on legal issues in a
pluralistic society by taking a
rather broad and imprecise
approach.[56]
Equally, the
congruency of the judgments of the Supreme Court with constitutional bedrock is
an important virtue. From a constitutional
standpoint, the majority approach in
Holder ought not to have been reasoned so broadly. While the majority
argue that constitutional balancing had already been done by
Congress,[57] this constitutional
balancing is at best incidental. Such balancing is not a mandatory part of
Congress`s constitutional role. More
arresting constitutional scrutiny is needed
by the Constitution’s vanguard, the judiciary. Also the problems with the
specific
intent test are not insurmountable and can be addressed through nuanced
reasoning.
There have been noteworthy efforts by the majority to narrow
the scope of the decision, to distinguish the Communist Party line of
cases, and
point to problems associated with the specific intent test promoted by the
minority. However, these efforts are argued
to be superficial, and a candid
commitment to protection of First Amendment rights would embolden proactive
approaches by the judiciary
and other stakeholders to address any factors that
need to be mitigated.
1. Problems with Analytical Distinctions
(a)
Independent Advocacy versus Coordinated Speech
With respect to the distinction between independent advocacy and
coordinated speech, there are logical inconsistencies in the reasoning.
Firstly, the majority implies that the constitutionality of the Congress framing
of the material support statute is inextricably
linked to the avoidance of
“... any restriction on independent advocacy, or indeed any activities not
directed to, coordinated
with, or controlled by foreign terrorist
groups.”[58] Academics have
recognised the circularity of this reasoning. Cole argues that the majority
reasoning suggests coordinated speech
is not protected because independent
advocacy is not prohibited by the material support
statute.[59] This is even though the
Court did not expressly rule on a prohibition of independent
advocacy.[60] There is no clear
guidance save for the invocation of the person of ordinary intelligence test to
address vagueness concerns.[61] This
amounts to a very ‘broad brush’ approach overall.
The
distinction between independent and coordinated speech is blurred by dynamics of
communication in a globalised
world.[62] Consequently, people
cannot make informed decisions about the legal risks of their speech
actions.[63]
There is also a
flaw in the application of the ‘legitimising effect’ argument in
terms of coordinated speech. The Court
accepted the notion that coordinated
speech lends legitimacy to FTOs. Arguing by analogy, if legitimacy can be lent
by allowing coordinated
speech with FTOs, why would this not apply to
independent advocacy with FTOs?[64]
The minority rightly points that there is “no natural stopping
place” in discerning between coordinated speech and independent
advocacy
in terms of the legitimacy
argument.[65] Also the Court assumes
that independent advocacy requires more protection than coordinated
speech.[66] On the contrary, given
that speech is a relational act, coordinated speech would likely have greater
constitutional significance.[67]
Cases such as United States v Al
Bahlul[68] demonstrate
the superficial nature of the majority emphasis in distinctions between
independent advocacy and coordinated speech to
justify a broad deferential
approach to First Amendment scrutiny. In Al Bahlul the defendant utilised
the distinction between coordinated speech and independent advocacy in Holder
to support the argument that the judge erred in giving instructions to the
tribunal by omitting to mention that Mr Al Bahlul `s “...political
beliefs
were not on trial.”[69] The
Court of Military Commission Review ruled against Mr Al Bahlul on the basis
that, as a noncitizen, he “... is not entitled
and does not have the
rights and protections provided by the First
Amendment.”[70]
Some
argue that there is a clear line between independent and coordinated speech and
only those who cross this fine line would be
prosecuted.[71] Further, it is
suggested that given the role of prosecutorial policy the alleged ‘fine
line’ prosecutions will not
eventuate.[72] Shanor talks of
varied stakeholders having to “...make assessments regarding tolerable
risks.”[73] However, these
arguments engage in subjective value judgments. Though there are ‘black
and white’ examples as evident
in United States v
Farhane,[74] there will also be
cases such as Al Bahlul[75]
which illustrates that the dividing line persists.
(a) Foreign versus Domestic Organisations
The majority believed that the Communist Party cases did not apply as it
was related to a domestic
organisation.[76] However the
distinction between foreign and domestic organisations is logically inconsistent
with the line of authority that suggests
that speech with foreign organisations
is protected by the First
Amendment.[77] If such cases did not
apply then the majority would have been able to forego First Amendment scrutiny
altogether.[78]
The counter
argument about the merits of this distinction between foreign and domestic
organisations relate to freeing up concerns.
While domestic organisations`
assets can be regulated by United States law, it is difficult to regulate
foreign organisations by
virtue of United States law
alone.[79] These concerns have been
affirmed in Al Haramain v U.S. Dept. Of
Treasury.[80]
The
majority approach gives pre-eminence to generic national security arguments, at
the expense of free speech. The logical inconsistencies
evident in the
distinctions compromise free speech overall. Constitutional analysis that
squarely addresses the analytical problems
is needed. A clearer causal nexus
between the plaintiffs’ proposed conduct and furtherance of terrorism
needs to be demonstrated.
2. Deferential Strict Scrutiny
A key argument supporting the notion that the majority approach was not
consistent with freedom of speech is that while in theory
the majority claimed
to apply strict scrutiny, in practice they applied a very lenient standard of
scrutiny. The majority grants
a wide deference to the Executive and Congress in
accepting their respective arguments and assumptions. David Cole aptly describes
this as “deferential strict
scrutiny”.[81] It is argued
that the majority`s invocation of the preventive
paradigm[82] and notions of
Executive expertise in foreign policy and national security to justify
deference, is wholly arbitrary.
Traditionally judicial deference is
recognised in all spheres except in relation to speech. In deferring to other
political branches,
the majority relied heavily on one ‘finding’
Congress inserted in the legislative record of the material support statute.
This reliance is concerning as the Court did no cross checking to verify the
validity of a very generic finding to the specific facts
of the plaintiffs. Even
if one accepts the need for judicial deference in speech, there needs to be a
principled approach to accepting
particular
findings.[83] A more principled
approach is seen in the Communist Party cases where Congress held hearings and
made substantiated findings to justify
any incursion.
[84]
The majority`s deference
resulted in the acceptance of logically questionable arguments, namely the
legitimising effect argument and
fungibility argument. In terms of the
legitimising effect argument, Cole argues that the Holder case is a
judicial endorsement of viewpoint
discrimination.[85] This is despite
such discrimination not being traditionally
acceptable.[86] With regard to the
fungibility argument, in terms of the terms ‘training’ and
‘expert advice or assistance’;
the minority rightly points that
there is “no natural stopping place” in discerning between legal and
illegal activity
in light of the possible chilling effect on free
speech.[87] There is a slippery
slope in terms of giving judicial endorsement to such sweeping arguments.
A counter argument is that the Court is merely accepting what is
substantiated by ample independent authority about the nature and
tactics of
FTO`s. These concerns include exploitation of asymmetries in information by
FTO`s. The socio-political consequences of
ignoring these concerns and also the
Court`s lack of specific expertise in this arena, tilts the balance in favour of
deference notwithstanding
accusations of a broad brush approach.
However
the supposed ‘ample authority’ is not beyond reproach. These sources
may have particular biases, such as bias
in favour of the United States and
predomination of the analysis framed by the war paradigm. This ‘ample
authority’ may
also be inconsistent with UN conventions and tenants of
international law.[88]
In
summary the majority approach in Holder represents a new low in judicial
method in terms of First Amendment scrutiny. A more principled approach to
deference is needed to
engender greater consistency with freedom of
speech.
B. Arguments for Consistency with Freedom of
Speech
1. Freedom of speech intact in principle
Some argue that the Holder approach keeps freedom of speech
intact, at least in principle.[89]
The Court asserted that both mere membership and speech about FTO`s is
protected implying that Congress did not intend to suppress
“pure
political speech” via
2339B.[90] The majority reasoning is
premised on the notion that material support seldom takes the form of
speech.”[91] There is
implication that one must not “... formally acknowledge the legitimacy of
content-based limitations of freedom of
speech.”[92]
Unlike the
European Union, the majority approach is consistent with the United States
theoretical lack of direct regulation of speech
such as criminal penalties for
incitement to terrorism.[93] The EU
approach is epitomised in Article 5 of the Council of Europe Convention on the
Prevention of Terrorism. This article requires
member states to criminalise
speech with intent to incite commission of a terrorist offence. However, Article
12 of the Convention
mandates the need for balancing mechanisms to be
implemented in the application of the Convention.
Given the assertions
about the limited scope of the Holder approach in terms of prohibiting
coordinated speech as opposed to independent advocacy; and application to
foreign as opposed to domestic
organisations, it is arguable freedom of speech
is very much intact in the usual manner in which it affects people. From a
critical
perspective, the Holder approach implies that Constitution does
not bind judges to impunity in the context of terrorism.
The counter
argument is that in practice there is greater symmetry with EU approach and
fewer safeguards such as balancing mechanisms
in United States. Barack-Erez and
Scharia argue the majority approach in Holder is congruent with United
States` indirect approach to limiting speech supporting terrorism. There is
symmetry between the Holder approach and the use of prosecutorial policy
to indirectly address incitement to
terrorism.[94] It is suggested that
without these balancing mechanisms weaker protection is given to freedom of
speech than in countries with direct
regulation of speech.
On balance,
the majority approach pays a superficial homage to freedom of speech while
practically failing to protect it by constructing
adequate safeguards in its
reasoning. Such safe guards could encompass some type of balancing mechanism
such as the “imminent
lawlessness” test in
Brandenburg.[95]
2. Safe Harbours for Free Speech?
A key argument for consistency is that the majority approach in Holder
provides safe harbours for free speech by academics, journalists and others
expressing concerns about FTO`s and related government
policy.[96]
Marguiles argues
that, viewed holistically at the judgment, this nuanced reasoning is consistent
with the use of agency relationships
to address the vagueness
concerns.[97] The notion of an
agency relationship means that there needs to be a connection between support
and membership alone is
insufficient.[98] The notion of an
agency relationship is supported by the statutory wording of 2399B, in
emphasising material support needs to be
directed to FTO’s.
The Court`s use of an agency relationship can be justified in terms of fairness
and consistency. For instance the Court found that
the term
‘service’, like lodging and weapons, cannot be supplied
independently of an FTO.[99] It is
argued that this relationship of agency sufficiently addresses vagueness of the
dividing line between legal and prohibited
speech. For example, where a
newspaper publishes an opinion piece by Hamas leaders, the newspaper will not be
prosecuted for providing
material support for FTO’s, it is not providing a
“service” to a FTO; rather it is providing a service to its
readers.[100] There may be a
collateral benefit afforded to the FTO’s but that is purely incidental to
the exercise of a free press.
Marguiles argues that the majority adopts
a functionalist understanding of the terms ‘training’, ‘expert
advice
or assistance’ and ‘service’, as opposed to a
substantive understanding.[101] A
functionalist understanding would focus on the teacher and student relationship;
while the substantive understanding of these terms
would focus on the degree of
difficulty of the subject
matter.[102]
A critique of
the safe harbours argument is that it is a subjective interpretation and there
is no clear indication of whether a functionalist
or a substantive understanding
of the terms is being used. The only direct response to the plaintiffs’
concerns about the dividing
lines is the invocation of the person of ordinary
intelligence test; to conclude that an ordinary person would find that the
plaintiffs’
proposed activities would fit the definitions of training and
expert assistance in the material support statute. It fails to specify
how much
coordination with an FTO would yield a violation of the statute.
Despite
Marguiles` thesis that the Court uses mechanisms to address concerns about the
floodgates, these are not unequivocally clear
as statements of law, but mere
conjecture in a rather peripheral analysis by the majority. There is sufficient
doubt in the reasoning
concerning the dividing line between legal and illegal
activity to ‘chill’ speech that is ordinarily protected.
3. Hybrid Scrutiny Model
A further argument for the consistency of the majority approach in
Holder with freedom of speech is the adoption of what Margulies terms a
Hybrid model of strict scrutiny that exemplifies both an ex ante
perspective and pragmatic approach over a doctrinaire
approach.[103] Proponents of the
majority approach note that the mix of these approaches is in fact consistent
with First Amendment case law.
An argument by analogy to regulation of
pre-trial publicity provides salient examples of the benefits of an ex ante
perspective in
the First Amendment
context.[104] For instance, the
regulation of pre-trial publicity means that advocates need to fit the arguments
to the forum.[105] Equally,
stakeholders in the Holder case, such as journalists, may need to act
proactively to mitigate the possible chilling effects of the model framed by the
majority.
Further, the regulation of pre-trial publicity countenances important
socially beneficial conduct such as the efficient administration
of justice.
The hybrid scrutiny of regulation of speech coordinated with FTO’s,
can also serve important socially beneficial conduct such
as effective global
counter-terrorism efforts by eradicating possible competitive advantages
provided to FTO`s by the legal system.
Judicial support of ex ante arguments is
also evident in cases which criminalise
conspiracy.[106]
It is
argued that the majority approach is a modest retreat from strict scrutiny,
arguably a meeting in the middle of competing concerns.
The Courts’
approach can be supported by signalling effects of the exception for independent
advocacy under the scope of the
term ‘personnel’ as evidence of
Congress’ finely balancing constitutional concerns. It is appropriate for
the Courts
in some instances to defer to other branches of government in light
of the socio-political consequences of a
case.[107]
Theoretically,
ex ante and pragmatic approaches are pleasing as they balance competing
interests and have already been successfully applied in the First
Amendment
context. The same goals that ex ante and pragmatic approaches seek to
achieve can still be achieved with conventional models of scrutiny. More
guidance from the court would be required to address the minority`s argument
that there is no natural stopping place for arguments
such as the legitimising
effect argument which form the reasoning after the adoption of this hybrid
scrutiny model.
V.
Conclusion
On balance, the majority approach in Holder is inconsistent with
freedom of speech. This thesis is substantiated on several grounds. Overall, the
majority takes a ‘broad
brush’ approach, utilising ex ante arguments
and departing from doctrinaire First Amendment precedent.
However such
an approach compromises First Amendment rights. Both the majority`s broad
application of deference to the other political
branches and the avoidance in
the reasoning of a causal nexus between speech and violence is inconsistent with
an established line
of First Amendment case law. Conversely, the minority`s
fairly possible interpretation is more consistent with the First Amendment
case
law.
In addition, the logical inconsistencies in analytical distinctions
that purport to narrow the scope of the decision in terms of free
speech, is
likely to ‘chill’ the exercise of free speech. Equally, the safe
harbours argument, although theoretically
desirable, is not well substantiated
from what the majority outlined. The competing considerations such as
‘fungibility’
of material support and legitimising effects do have a
place in counter-terror policy. However, in accommodating such concerns,
judicial
reasoning must be robust and discernible. It must not leave seething
ambiguities about what is lawful and what is prohibited, irrespective
of the
complexities of the cases.
Equally, the notion of freedom of speech being
intact in principle is a superficial gloss. The US approach as evident in
Holder lacks the inbuilt safe guards of a more direct approach to speech
issues in the terrorism context.
Finally, Cole`s model of
“deferential strict scrutiny” characterising the majority approach
is to be preferred to Marguiles’
hybrid scrutiny model. While ex ante and
pragmatic approaches have merit, a more principled reasoning is required address
the facts
presented in Holder.
[1] Zemel v Rusk [1965] USSC 147; 381 US 1 (1965) at 17.
[2] KE Davis “The Financial War on Terrorism” in VV Ramraj, Michael Hor and Kent Roach(eds) Global Anti- Terrorism Law and Policy (Cambridge University Press, Cambridge, 2005) 179 at 196.
[3] Holder v Humanitarian Law Project 130 S. Ct. 2705 (2010) [Holder].
[4] Kent Roach The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, New York, 2011) at 175.
[5] Norman Abrams Anti-terrorism and Criminal Enforcement (2nd ed, Thomson/West, St Paul, Minnesota, 2003) at 197.
[6] LR Blank “The Consequences of a “War” Paradigm for Counterterrorism: What Impact on Basic Rights and Values? (2012) 46 Ga L Rev 719 at 721.
[7] Kent Roach “Defining Terrorism: The Need for a Restrained Definition” in Nicole La Violette and Craig Forcese (eds) The Human Rights of Anti-terrorism (Irwin Law Inc., Toronto, 2008) 97 at 98.
[8] See Attorney General John Ashcroft “Prepared Remarks of Attorney General John Ashcroft” (paper presented to the US Mayors Conference, 25 October 2001).
[9] David Cole “Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’” in Andrea Bianchi and Alexis Keller (eds) Counterterrorism: Democracy's Challenge (Hart Publishing Ltd, Oxford, 2008) 233 at 235.
[10] Cole, above n 9, at 235.
[11] 18 U S C § 2339B(a)(1).
[12] 18 U S C §2339A(b)(1).
[13] See 8 U S C §§ 1189(a)(1),(d)(4).
[14] Holder, above n 2, at 2716.
[15] At 2716.
[16] At 2716.
[17] At 2716.
[18] Holder, above n 2, st 2717.
[19]At 2717.
[20] At 2720.
[21]At 2720.
[22] At 2720.
[23] United States v O'Brien [1968] USSC 116; 391 U S 367 (1968).
[24] Holder, above n 2, at 2723.
[25] At 2723.
[26] At 2724.
[27] Cohen v California [1971] USSC 114; 403 U S 15 (1971).
[28] Holder, above n 2, 2723.
[29] At 2725.
[30] At 2725.
[31] At 2725.
[32] At 2725.
[33] At 2726.
[34] At 2727.
[35] Holder, above n 2, at 2729.
[36] At 2734.
[37] Holder, above n 2, at 2732
[38] Brandenburg v Ohio [1969] USSC 139; 395 US 444 (1969).
[39] Holder, above n 2, at 2736.
[40] At 2734.
[41] At 2738.
[42] At 2740.
[43] At 2740.
[44] At 2740.
[45] At 2741.
[46] De Jonge v Oregon [1937] USSC 3; 299 US 353 (1937).
[47] Communist Party of the United States v Subversive Activities Control Board [1956] USSC 50; 351 U.S. 115 (1956).
[48] Brandenburg v Ohio [1969] USSC 139; 395 US 444 (1969).
[49] Amanda Shanor “Beyond Humanitarian Law Project: Promoting Human Rights in Post-9/11 World” (2011) 34 Suffolk Transnatl L Rev 519 at 529. See also Gitlow v NewYork [1925] USSC 174; 268 US 652 (1925).
[50] Brandenburg, above n 49, at 447.
[51] Holder, above n 2, at 2730.
[52] At 2730.
[53] At 2727.
[54] Shanor, above n 50, at 524.
[55] CR Sunstein “Incompletely Theorized Agreements” (1995)108(7) Harv.L.Rev.1733.
[56] At 1735.
[57] Holder, above n 2, at 2728.
[58] Holder, above n 2, at 2728.
[59] David Cole “The First Amendment`s Borders: The Place of Holder v Humanitarian Law Project in First Amendment Doctrine” (2012) 6 Harv L & Poly Rev 147 at 165.
[60] Holder, above n 2, at 2730.
[61] At 2722.
[62] Timothy Zick “The First Amendment in Transborder Perspective: Toward a More Cosmopolitan Orientation” (2011) 52 B C L Rev 941 at 999.
[63] MG Freedman “Prosecuting Terrorism: The Material Support Statute and Muslim Charities” (2011) 38 Hastings Const L Q 1113 at 1114.
[64] Shanor, above n 50, at 535.
[65] Holder, above n 2, at 2730.
[66] Cole, n 60, at 165.
[67] At 166.
[68] United States v Al Bahlul No. CMCR 09-001,2011 WL 4916373, at 1 (US Ct Mil Commn Rev. Sept. 9,2011). See also United States v Mehanna No. 09-CR-10017-GAO (D. Mass. June 17, 2010).
[69] United States v Al Bahlul, at n 73, at 75.
[70] United States v Al Bahlul, at n 73, at 78.
[71] Innokenty Pyetranker “ Sharing Translations or Supporting Terror - An Analysis of Tarek Mehanna in the Aftermath of Holder v. Humanitarian Law Project” (2011) 2 Nat l Sec L. Brief 21 at 39.
[72] Shanor, above n 50, at 537.
[73] At 537.
[74] United States v Farhane 634 F 3d 127(2d Cir. 2011).
[75] United States v Al Bahlul, at n 73, at 1.
[76] Holder, above n 2, at 2728.
[77] See Lamont v Postmaster General [1965] USSC 134; 381 US 301 (1965). See also Kleindeinst v Mandel [1972] USSC 172; 408 US 753 (1972).
[78] Cole, above n 60, at 169.
[79] Shanor, above n 50, at 534.
[80] Al Haramain Islamic Foundation Inc. v United States Department of the Treasury(Al Haramain II) U.S. App. LEXIS 19498( 9th Cir. Sept. 23, 2011).
[81] Cole, above n 60, at 158.
[82] Holder, above n2, at 2728.
[83] See Bartnicki v Vopper [2001] USSC 32; 532 US 514 (2001).
[84] Shanor, above n 50, at 526.
[85] Cole, above n60, at 161-162.
[86] At 162.
[87] Holder, above n 2, at 2736.
[88] See generally Pernille Walther and Peter Vedel Kessing “Holder, Attorney General v Humanitarian Law Project 561 US(2010) Does Training in International Humanitarian Law and Human Rights Law Constitute ‘material support to terrorism’?”[2011] AUIntLawJl 14; (2011) 18 Austl Int`l L J 251.
[89] Daphne Barak-Erez and David Scharia “Freedom of Speech, Support for Terrorism and the Challenge of Global Constitutional Law” (2011) 2 Harvard National Security Journal 1 at 27.
[90] Holder, above n2, at 2723.
[91] At 2723.
[92] Barake-Erez and Scharia, above n88, at 29.
[93] Barake-Erez and Scharia, above n88, at 27.
[94] See Ashcroft v Iqbal 556 U S 662 (2009).
[95] See T.A. Alienikoff “Constitutional Law in the Age of Balancing” (1987) 96 Yale L J 943.
[96] Peter Marguiles “Advising Terrorism: Material Support, Safe Harbors, and Freedom of Speech” (2011) 63 Hastings L J 455 .
[97] At 500.
[98] Holder, above n2, at 2718 and 2722.
[99] Holder, above n2, at 2722.
[100] Marguiles, above n 96, at 502.
[101] At 495.
[102] At 495.
[103] At 513-516.
[104] See Gentile v State Bar of Nevada [1991] USSC 119; 501 US 1030(1991).
[105] Margulies, above n 96, at 515.
[106] See United States v Rahman [1999] USCA2 364; 189 F3d 88 (2d Cir. 1999).
[107] See Bush v Gore [2000] USSC 72; 531 U S 98 (2000).
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