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Fernando, Inura --- "Painting with a broad brush - The consistency of the majority approach in Holder with freedom of speech" [2014] NZLawStuJl 7; (2014) 3 NZLSJ 274

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 141; 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 141; 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 109; 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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