Amicus Curiae Brief — Holder v. Humanitarian Law Project

; Supreme Court, U.S.

\\ FILED

Nos. 08-1398 & 098 NOV 2 3 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ERIC H. HOLDER, JR., Arrorney GENERAL, et al.,

Petitioners,

v.

HUMANITARIAN LAW PROJECT, et ad.,

Respondents.

HUMANITARIAN LAW PROJECT, et al.,

Cross-Petitioners,

Vv.

ERIC H. HOLDER, JR., ArrorNEY GENERAL, et al.,

Respondents.

On WRITs OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE NINTH CIRCUIT

—

——

BRIEF FOR ACADEMIC RESEARCHERS AND THE CITIZEN

Mepis Law Project as Auici CURIAE IN SUPPORT OF

RESPONDENTs/CROSS-PETITIONERS

SipDNEY S. ROSDEITCHER Burt NEUBORNE

1285 Avenue of the Americas Counsel of Record

New York, NY 10019-6064 ELIZABETH GOITEIN

(212) 373-3000 EMILY BERMAN

Davip UDELL

THE BRENNAN CENTER FOR

‘

U

w

Justice at NYU ScuHovut or Law

161 Avenue of the Americas

12th Floor

New York. NY 10013

(212) 998-6730

Attorneys for Amici Curiae

aq” oe

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ...............c:cecceeceeeenees 1

INTRODUCTION AND SUMMARY OF

TET siininsscnngenindensieltninmeedtbiiendeninicindieiebiaainceie 7

TE acritesicchineicciiiehineidealasibciniaidniiebrcniceaaasiisigiarseiacensienats 10

IT.

ITT.

THE MATERIAL SUPPORT STATUTE IS

UNCONSTITUTIONALLY VAGUE AND

COULD CHILL PROTECTED SPEECH... 10

THE APPLICATION OF THE STATUTE TO

PURE SPEECH THAT HAS NEITHER THE

PURPOSE NOR EFFECT OF AIDING

TERRORIST GROUPS’ UNLAWFUL

ACTIVITIES VIOLATES THE FIRST AND

FIFTH AMENDMENTS .....................cccee eee 24

THE COURT SHOULD READ THE

MATERIAL SUPPORT STATUTE, WHEN

APPLIED TO PURE SPEECH, TO

REQUIRE BOTH A SPECIFIC INTENT TO

FURTHER AN UNLAWFUL END AND A

LIKELIHOOD OF HARM ........00000........02.... 28

IID ides sic canldincididnabiaistinipsaieiincheiiammiaiieddiamennte 33

TABLE OF AUTHORITIES

Cases

Abuelhawa v. United States,

Se i caeesnnneneiien 32

Almendarez-Torres v. United States,

ES EER Ee a a Ne 28

Aptheker v. Secretary of State,

EE A Re nO CRE RR OO 30

Baggett v. Bullitt,

a casssnbusenonsanel 11

Brandenburg v. Ohio,

I sas sl accacadbuceseelasas 24

Bridges v. California,

I aes 24

City of Lakewood v. Plain Dealer Pub. Co.,

ns aieiacioaibiintls dabei’ 11

Crowell v. Benson,

EEE ISI ee RA BS DRI i nF 28

Dennis v. United States,

I a 24, 25

Edward J. DeBartolo v. Fla. Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568 (1988)..... 28

Elfbrandt v. Russell,

RR cee RCI FE ONT 25, 33

Foti v. City of Menlo Park,

146 F.3d 629 (9th Cir. 1998) ........... AEM OeIe eeE A 11

Grayned v. City of Rockford,

a sais cic aleeinceeialo nal 11

-iii-

Herndon v. Lowry,

Se a 2 ace nasennniobamninmananna 23, 24

Humanitarian Law Project v. Mukasey,

552 F.3d 916 (9th Cir. 2009) ..............00.... 11, 25, 30

Keyishian v. Board of Regents,

Nee ie caaltl 11

Lorillard v. Pons,

EPR A a EER te nd ONE ee 32

NAACP v. Button,

i ad gibi 11

Public Citizen v. U.S. Dep’t of Justice,

a caehdbiisacinibapenaionind 28

Scales v. United States,

AR Re Sense nae passim

Smith v. Goguen,

REET EAR TE REE et IO EA 11, 23

Texas v. Johnson,

ET RR A a a 24

United States v. Del. & Hudson Co.,

a. scsisipaiticiticbmenpiiicnaah 29

United States v. O’Brien,

SO cesapemnenianeienni 26, 27

United States v. Robel,

gs GENIE aL een meee ane wae ee 30, 33

United States v. Thirty-Seven Photographs,

Ne ct sdenbbdiushdamiaia 28

Yates v. United States,

ee ce saieuinesnneninmennens 29, 31

-1V-

Statutes & Legislative Material

iss cictreaticndanonnamuminnsecioniion 1,16

ies diese sibiaiynabemnnienneigneilininn 1

i so scsi esimsiadomienennds 19, 32

I is scceicintineceenbionnsninentneneiels 21

Ce ii snticcnnnsknsnsestiounanacaeernen 20, 33

ERE ae a Fo 29

H.R. Rep. No. 104-518 (1996) (Conf. Rep.), as

reprinted in 1996 U.S.C.C.A.N. 944 .............0.008 32

Other Authorities

American Society of News Editors’ Statement of

EN A SES ER RS Bu Rie aver Ne 8 No aCe 13

Associated Press Managing Editors,

Statement of Ethical Principles..................0....... 13

H. Russell Bernard, Research Methods in

Anthropology: Qualitative and Quaniitative

Approaches (4** ed. 2006) ...................:eccesecceeceeees 12

Andrea Elliott, A Call to Jihad Answered in America,

N.Y. Times, Juiy 12, 2008, at Al. ........................ 17

Clifford Geertz, The Interpretation of Cultures

A eS ee a 12

Michael Genzuk, A Rinthotis of Ethnographic

Research (Occasional Paper Series, Center for

Multilingual, Multicultural Research, Rossier

School of Education, University of Southern

California, 2003), available at

-V-

http://www.rcf.usc.edu/~genzuk/Ethnographic_

STII siccissinccnicninesevintsninmaniguiaiimmemmaamaaa 12

Hearst Newspapers:

Statement of Professional Principles ................. 13

Inside the Jihad: Coverage by Michael Moss and

Sauad Mekhennet, N.Y. Times, available at

http://topics.nytimes.com/topics/news/

internationalseries/insidethejihad/index.html.. 15

Mousa Abu Marzook, Hamas Speaks,

L.A. Times, Jan. 6, 2009, at Al5......................... 17

Souad Mekhennet, Michael Moss, Eric Schmitt,

Elaine Sciolino, & Margot Williams, Ragtag

Insurgency Gains a Lifeline From Al Qaeda, N.Y.

eG, Pelet 0, Ts GIRS sinsssiiciorestenteinane 15

Serena Nanda & Richard L. Warms, Cultural

Anthropology (9th ed. 2006).................:ccccceecee eee 12

‘New’ al Qaeda Tape May Contain Old Clip of bin

Laden, CNN.com, July 15, 2007 ......................... 17

Press Release, U.S. Dep’t of Defense, Detainee

Convicted of Terrorism Charge At Military

Commission Trial (Nov. 3, 2008), available at

http://www.defenselink.mil/releases/release.aspx?

PO cv cesnccsincnscinsansssesmsntubianonamamemaies 18

Reuters, Handbook of Journalism (2008), available

at http://handbook.reuters.com/extensions/

docs/pdf/handbookofjournalism pdf .................... 13

Society of Professional Journalists,

CE Gr Be CR asrnenncc cosccccesnencasntscccanmemnaall 13

Adrian Vermeule, Saving Constructions,

OE Came. Bn, i. BU Ue GI e Poses ceneseceseccsaninissbblincenniant 29

-Vi-

Webster’s Third New International Dictionary of the

English Language (19938) ...............cccccccesccccsessoees 21

Ahmed Yousef, Engage With Hamas; We Earned Our

Support, Wash. Post, June 20, 2007, at Al9...... 18

Ahmed Yousef, What Hamas Wants, N.Y. Times,

ee cccncceunesessccccoece 18

Mahmoud al-Zahar, No Peace Without Hamas, Wash.

I EE ED cacccccccccaccsccccncoscsescece 18

eRe

INTEREST OF AMICI CURIAE!

Amici are academic researchers and a professional

association representing the interests of journalists

who work in fields requiring professional contact

with a wide variety of foreign groups, some of which

have been or may be designated as foreign terrorist

organizations by the United States government

pursuant to 8 U.S.C. § 1189(a)(1). Sustained verbal

communication with, or concerning, such groups is

often essential to the successful performance of these

researchers’ and journalists’ professional

responsibilities, which in turn enhances public

understanding on issues of vital international

importance. If this Court endorses the government’s

position concerning the broad reach and

constitutionality of 18 U.S.C. § 2339B, which

criminalizes the provision of “material support or

resources” to proscribed groups, these individuals

will be forced to carry out their professional

activities in a climate of fear and uncertainty

because, given the statute’s vague and amorphous

prohibitions, it is impossible to predict whether a

given well-intentioned communication might be

construed by the government as falling within the

statutory prohibition.

' The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel! or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than Amici Curiae or their counsel made a monetary

contribution to its preparation or submission.

~~ -

Amici urge the Court to provide effective and

constitutionally adequate protection for speakers

whose professional duties require them_ to

communicate with, or about, proscribed groups for

purely lawful purposes. Such protection could be

provided by construing the ban on “material support

or resources’ to apply only to communications that

are (1) intended to advance the proscribed groups’

unlawful activities; and (2) likely to have such an

effect. If the Court finds that the statute’s text

resists such a _ saving construction, it should

invalidate the statute’s application to the speech at

issue in this case as violative of the First and Fifth

Amendments to the United States Constitution.

Amici include the following:

Lori Allen is Lecturer in Contemporary Middle

Eastern Politics and Society in the Department of

Middle Eastern Studies, University of Cambridge,

UK. She is currently an Academy Scholar at the

Harvard Academy for International and Area

Studies, where she is writing a book about human

rights and the politics of suffering in Palestinian

nationalism entitled Victims of Politics: Human

Rights Contradictions and the Paradox of Palestine.

In addition to a number of articles published in

Middle East Report, recent publications include

articles in Cultural Anthropology, American

Ethnologist, and Arab Studies Journal. Her research

has been supported by grants and fellowships from

Brown University, the United States Institute of

Peace, the Harry Frank Guggenheim Foundation,

the Woodrow Wilson National Fellowship

x

Foundation, the Social Science Research Council, and

the British Academy, among others.

Danny Hoffman is an Assistant Professor of

Anthropology at the University of Washington in

Seattle. Dr. Hoffman’s ethnographic research

focuses on youth and contemporary’ militia

movements in Sierra Leone and Liberia. His work

has been published in European and American

journals devoted to African Studies, Anthropology,

Cultural Studies and Political Science. In 2006, Dr.

Hoffman served as an expert witness for the United

Nations war crimes tribunal in Sierra Leone

following fieldwork with that country’s Civil Defense

Forces militia.

Louis Kriesberg is Professor Emeritus of

Sociology, Maxwell Professor Emeritus of Social

Conflict Studies, and founding director of the

Program on the Analysis and Resolution of Conflicts

(1986—1994), all at Syracuse University. In addition

to over 125 book chapters and articles, his published

books include: Conflict Transformation and

Peacebuilding (co-ed., 2009); Constructive Conflicts

(1998, 2003, 2007); International Conflict Resolution

(1992); Timing the De-Escalation of International

Conflicts (co-ed., 1991); Intractable Conflicts and

Their Transformation (co-ed., 1989); Social Conflicts

(1973, 1982); Social Inequality (1979); Mothers in

Poverty (1970); Social Processes in International

Relations (ed., 1968); and Research in Social

Movements, Conflicts and Change (ed., Vols. 1-14,

1978-1992). He was President of the Society for the

Study of Social Problems (1983—1984), and he

~~

lectures, consults, and provides training regarding

conflict resolution, security issues, and peace

studies.

Carolyn Nordstrom is Professor of Anthropology

at the University of Notre Dame. Her principle

areas of interest are political violence and peace,

transnational extra-legal economies, and

globalization. She has conducted extensive in-site

fieldwork in war zones worldwide, with long-term

interests in Southern Africa and South Asia. Her

books include: Global Outlaws: Crime, Money, and

Power in the Contemporary World (2007); Shadows

of War: Violence, Power and _ International

Profiteering in the 218 Century (2004); A Different

Kind of War Story (1997); and the edited volumes:

Fieldwork Under Fire: Contemporary Stories of

Violence and Survival (1996); and The Paths to

Domination, Resistance, and Terror (1992). She has

authored dozens of scholarly articles, won several

teaching awards, and has recently been awarded

John D. and Catherine T. MacArthur and John

Simon Guggenheim Fellowships.

Mary Ellen O'Connell holds the Robert and

Marion Short Chair in Law and is Research

Professor of International Dispute Resolution—Kroc

Institute for Peace Studies at the University of Notre

Dame. Professor O'Connell chairs the Use of Force

Committee of the International Law Association.

She came to Notre Dame from The Ohio State

University, where she held a joint appointment in

the law school and the Mershon Center for

International Security Studies. She has also taught

-5-

for the United States Department of Defense at the

George C. Marshall European Center for Security

Studies in Garmisch-Partenkirchen, Germany and

the Johns Hopkins University Nitze School for

Advanced International Studies in Bologna, Italy.

She is the author of, among other’ works,

International Law and the Use of Force, Cases and

Materials (2d ed. 2009); The Power and Purpose of

International Law (2008); and = Redefining

Sovereignty: The Use of Force After the Cold War

(with M. Bothe and N. Ronzitti, 2005).

William Reno is an Associate Professor of Political

Science at Northwestern University. He studies the

organization and behavior of insurgent groups in

Sub-Saharan Africa, and has conducted recent field

research in Sudan and Somalia. He is the author of

the books Corruption and State Politics in Sierra

Leone (1995) and Warlord Politics and African States

(1999). In addition, he is the author of multiple

articles and book chapters on the subject of

collapsing states and warfare in post-state societies.

Robert A. Rubinstein is Professor of Anthropology

and International Relations at the Maxwell School of

Syracuse University, where from 1994-2005 he

directed the Program on the Analysis and Resolution

of Conflicts. His research focuses on the dynamics of

peacekeeping, stability operations, post-conflict

reconstruction, and conflict management. He is the

author of Peacekeeping Under Fire: Culture and

Intervention (2008), and co-editor of the collections

The Social Dynamics of Peace and Conflict: Culture

in International Security (1988) and Peace and War:

-6-

Cross-Cultural Perspectives (1986). In addition, he

has published 100 journal articles and _ book

chapters, and has authored or edited eight books.

His work has been supported by numerous

foundations, including the Ford Foundation,

National Science Foundation, the John and Flora

Hewlett Foundation, the United States Institute of

Peace, and the Wenner-Gren Foundation for

Anthropological Research.

Robert D. Sloane is Associate Professor of Law at

the Boston University School of Law. His current

research focuses on the laws of war and the use and

limits of criminal law concepts in international law.

He has published in the fields of public international

law, human rights, international criminal law,

asylum law, and international arbitration. As a

practitioner, he worked for the International

Committee of Lawyers for Tibet (now known as Tibet

Justice Center), in which capacity he led fact-finding

missions to Nepal, India, and Tibet, wrote

submissions for the U.N. Commission on Human

Rights and human rights treaty bodies, represented

asylum seekers, and published several reports and

law journal articles on human nights.

The Citizen Media Law Project (“CMLP’”)

provides legal assistance, education, and resources

for individuals and organizations involved in online

and citizen media. CMLP is jointly affiliated with

Harvard University’s Berkman Center for Internet

& Society, a research center founded to explore

cyberspace, share in its study, and help pioneer its

development; and the Center for Citizen Media, an

initiative to enhance and expand grassroots media.

a 2

CMLP is an unincorporated association hosted at

Harvard Law School, a non-profit educational

institution. CMLP has previously appeared as

amicus curiae in several cases concerning legal

issues of importance to the media.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The world has’ become increasingly and

irreversibly globalized. In nearly every aspect of

public hfe—our environment, our economy, our

communications, our security—actions and events in

far-flung places may have significant impact on the

lives of Americans, and vice versa. A crisis in Wall

Street banks spurs precipitous drops in European

and Asian financial markets and bankruptcy in

Iceland. Hatred and incitement in Afghanistan

leads to murderous attacks in New York. The razing

of South American’ rain forests and _ the

industrialization of developing nations combine with

the West's own pollution to increase carbon

emissions and lead to ever more devastating

hurricane seasons on the American. Gulf Coast.

Deterioration of nuclear security in the former

Soviet Union raises concerns within this country

over nuclear proliferation and bombs in the hands of

non-state actors.

In the face of these varied and daunting

transnational challenges, it has never been more

important for the members of our self-governing

society to have access to information about the

events, entities, and persons that are shaping those

=~

challenges. Only a well-informed public can engage

in reasoned debates about foreign relations, national

security policy, climate change legislation, or

financial regulation. This means learning not only

about the views and actions of foreign leaders, but

also about those of their opponents—whether those

opponents are the youth of Iran pressing for a more

open society, or extremist religious fanatics pressing

for a more oppressive one.

Academic researchers and journalists play a

crucial role in the _ collection, analysis, and

dissemination of this vital information. Only with

the facts and perspectives that their work provides

can we understand the forces at play in remote and

unfamiliar places. In providing this information,

they not only enrich public discourse; they facilitate

the development of more effective national policy,

foreign policy, and counterterrorism efforts. They

must therefore be permitted to travel, to interact

responsibly with people from all sectors of society,

and to report freely on what they discover without

the specter of criminal prosecution hanging over

their heads.

The outcome of this case will affect the ability of

researchers and journalists to do their vital work. In

furtherance of their professional duties, Amici and

their colleagues must communicate with or about

groups that are or may become designated foreign

terrorist organizations. Absent a narrowing

construction, the statute provides insufficient clarity

2 In the case of orgamizational Amicus, the communication is on

the part of the organization's members and beneficiaries.

oa

for these individuals to ascertain with confidence

whether a given communication could be construed

us falling within the statute’s prohibition. If this

Court upholds the vague and extremely broad terms

of the statute, many researchers and journalists will

feel compelled to err on the side of caution,

restricting their lawful communications and diluting

the public discourse. Moreover, significant potential

exists for the government to exploit the statute's

vagueness to target disfavored scholarship or

reporting. This combined risk of self-censorship and

selective application of the statute cannot be squared

with the dictates of the First and Fifth Amendments

to the U.S. Constitution.

Even aside from the statute’s unconstitutional

vagueness, applying it to pure speech that has

neither the purpose nor likely effect of furthering a

designated terrorist group’s unlawful ends would

run afoul of the First and Fifth Amendments. This

Court has acknowledged that the government may

not curtail pure speech unless there is a close causal

nexus between the speech and an extremely serious

harm the government is empowered to prevent. No

plausible nexus has been posited between pure

speech, of the kind in which Respondents/Cross-

Petitioners and Amict engage, and the ability of

terrorist groups to do harm. Moreover, where an

individual associates with a group that engages in

both lawful and unlawful activities, such association

cannot be punished absent a specific intent on the

part of the individual to further the group’s unlawful

aims. A contrary holding would offend the First and

Fifth Amendments and threaten the very basis of

Amici’s academic and journalistic pursuits.

- 10.

Accordingly, Amici urge the Court to resolve the

constitutional infirmities of the statute through a

narrowing construction that allows speech to be

penalized only where it has the purpose and likely

effect of furthering the illegal activities of designated

terrorist groups. The lower courts’ assessment that

such a narrowing construction is unnecessary was

based on a misreading of Scales v. United States, 367

U.S. 203 (1961), which in fact provides strong

support for such an approach here. If such a

narrowing construction 1s deemed impossible, the

Court should declare the statute unconstitutional as

applied to speech that lacks the purpose and likely

effect of advancing a proscribed group’s unlawful

ends.

ARGUMENT

I. THE MATERIAL SUPPORT STATUTE IS

UNCONSTITUTIONALLY VAGUE AND

COULD CHILL PROTECTED SPEECH

Respondents/Cross-Petitioners challenge several

provisions of the material support statute as being

unconstitutionally vague, while the United States

argues that these provisions provide tolerably fair

notice of the statute’s scope. The courts below split

the difference, holding that certain terms give fair

notice, and certain terms do not. Parsing each

challenged prohibited category and sub-category, the

courts distinguished particularly amorphous

categories like “service,” “training,” and “expert

advice” based on “specialized knowledge” from

marginally less amorphous’ categories like

«tts

“personnel” and “expert advice” based on “scientific”

or “technical” knowledge, and enjoined the United

States from enforcing the more amorphous

categories against Respondents/Cross-Petitioners’

proposed speech. See Humanitarian Law Project v.

Mukasey, 552 F.3d 916, 927-31 (9th Cir. 2009).

With respect, however, the lower courts did not

sufficiently heed their own exhortation regarding

how First Amendment considerations should affect

the void-for-vagueness analysis. When, as here, a

statute may touch on protected speech,’ it must do

more than “clearly delineate the conduct [it]

proscribe[s],” Humanitarian Law Project, 552 F.3d at

928; it must do so “with narrow specificity.” Foti v.

City of Menlo Park, 146 F.3d 629, 638-39 (Sth Cir.

1998) (citing NAACP v. Button, 371 U.S. 415, 432-33

(1963)). The purpose of this heightened specificity

requirement is twofold: (1) to avoid the risk of

widespread self-censorship caused by uncertainty

and fear; and (2) to prevent the United States from

exercising virtually unfettered discretion over which

speech should be prosecuted. See Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972); see also

Keytshian v. Board of Regents, 385 U.S. 589, 603-04

(1967) (self-censorship); Baggett v. Bullitt, 377 U.S.

360, 372 (1964) (same); Smith v. Goguen, 415 U.S.

566, 575 (1974) (prosecutorial discretion); cf. City of

Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750,

3 The First Amendment vagueness doctrine is triggered

whenever “a statute's literal scope .. . is capable of reaching

expression sheltered by the First Amendment” Smith v.

Goguen, 415 U.S. 566, 573 (1974).

it.

757 (1988) (parallel dangers in_ standardless

licensing scheme).

These risks clearly are present here. As a

threshold matter, scholars in many disciplines must

be able to communicate with the subjects of their

study in order to perform responsible research.

Anthropology is a primary example. The discipline

of anthropology is aimed at illuminating other

cultures, ranging from small, geographically distinct

units (such as a particular tribe) to broader cultural

phenomena (such as war itself). See generally

Serena Nanda & Richard L. Warms, Cultural

Anthropology (9th ed. 2006). The primary vehicle for

achieving this aim is ethnographic research, or

fieldwork involving the collection of primary data.

And while there are many tools that may be involved

in such research, one of the most important tools is

direct personal observation of—and _ extended

interactive interviews with—members of the culture

being studied. See H. Russell Bernard, Research

Methods in_ Anthropology: Qualitative and

Quantitative Approaches 342, 347, 368-69 (4t ed.

2006); Michael Genzuk, A Synthesis of Ethnographic

Research (Occasional Paper Series, Center for

Multilingual, Multicultural Research, Rossier School

of Education, University of Southern California,

2003), available at http://www-rcf.usc.edu/

~genzuk/Ethnographic_Research.html. It is, indeed,

a longstanding and fundamental tenet of

anthropology that direct, sustained contact is vital to

gaining a full and accurate understanding of the

culture in question. See Clifford Geertz, The

Interpretation of Cultures 22 (1973)

-13-

(“Anthropologists don’t study villages .. . they study

un villages.”) (emphasis in original).

Journalists similarly must be able to

communicate with the persons and groups about

whom they report. The competent, ethical practice

of journalism requires reporters to make every effort

to ensure that “news content is accurate, free from

bias and in context, and that all sides are presented

fairly.” American Society of News. Editors’

Statement of Principles, Art. IV. This means

making efforts to “[t]alk to sources on all sides of a

deal, dispute, negotiation or conflict.” Reuters,

Handbook of Journalism 3 (2008), available at

http://handbook.reuters.com/extensions/docs/pdf/

handbookofjournalism.pdf. When a story paints an

individual in a negative light or deals with

controversial issues, this principle is especially

important. See, e.g., Hearst Newspapers: Statement

of Professional Principles (“We must make a

particular effort to seek comment from those

portrayed in a critical manner.”’); Society of

Professional Journalists, Code of Ethics (1996)

(“Journalists should .. . [diligently seek out subjects

of news stories to give them the opportunity to

respond to allegations of wrongdoing.”); Associated

Press Managing Editors, Statement of Ethical

Principles (“The mewspaper should strive for

impartial treatment of issues and dispassionate

handling of controversial subjects.”).

Accordingly, in order to study or report

competently on terrorism or terrorist groups,

academic researchers and journalists must be able to

o 86.

communicate with those groups or their members.

There can be no serious question regarding the

importance of this work. Among other things, a rich

understanding of the phenomenon of modern

terrorism is vital to our own government's ability to

develop effective responses to the terrorist threat. If

the Court were to uphold the statutory terms at

issue in this case, however, Amici would be left to

guess whether activities like the following could

conceivably fall within the statute’s ambit:

Amici include an anthropologist who studies

peacekeeping missions and the effect of both

internal and external culture on the missions’

success. In order to determine how local culture

affects any given peacekeeping mission, this

researcher engages in in-depth interviews and

“participant observation” of the local population,

ranging from those who support the mission to

those who may engage in armed opposition as

part of an_ organized _ insurgency. In

communicating his findings through scholarly

writings, he routinely presents the views of the

people and groups whom he has studied. This

individual's work has been of direct benefit to the

U.S. government and he has been invited to the

U.S. Army War College as a “distinguished

visitor.” Yet if the armed insurgents whom he

studies were to be classified as foreign terrorist

organizations by the U.S. government, could his

extended interactions with them and _ his

presentation of their views be construed by the

government as the provision of a “service” or

“personne|”?

. *

One major U.S. daily newspaper published a

series of articles about jihadists, aiming to

“examine how they are working to expand the

reach of radical Islam.” Inside the Jihad:

Coverage by Michael Moss and Sauad Mekhennet,

N.Y. Times, available at http://

topics.nytimes.com/topics/news/international/

series/insidethejihad/index.html. An article in

the series focused on a foundering militant group,

currently designated by the U.S. government as a

foreign terrorist organization, that reached out to

Al Qaeda for support and resources. See Souad

Mekhennet, Michael Moss, Eric Schmitt, Elaine

Sciolino, & Margot Williams, Ragtag Insurgency

Gains a Lifeline From Al Qaeda, N.Y. Times, July

1, 2008, at Al. This reporting required

significant contact with the militants, and it

included stories from inside the organization

regarding members’ motivations, activities, and

political views. The online version of the story

included a link to audio clips from an interview

with the militant group's leader, Abdelmalck

Droukdal. Could the government deem the airing

of this interview, and the presentation of the

group’s views, to be a “service” provided to the

organization?

Amici include an anthropologist who does

intensive field research in conflict zones. He has

studied the Civil Defense Forces (CDF) and the

Revolutionary United Front (RUF) in Sierra

Leone and Liberians United for Reconciliation

and Democracy (LURD) in Liberia, among other

groups. As an integral part of his research, he

has spent extended periods of time with the

~—' *

combatants he has studied, including living with

them on occasion in order to maximize his

observational opportunities. His work has

resulted in important insights on why some

groups target civilians for attack, and he served

as an expert witness for the United Nations at

the Special Court in Sierra Leone. Yet the groups

of greatest interest to his work include those that

arguably meet the government’s definition of

foreign terrorist organizations and are likely

candidates for designation under 8 U.S.C. §

1189(a)(1). Could he run afoul of the “personnel”

or “service” provisions of the material support

statute by virtue of his extended and close

interactions with them?

Media associations regularly organize

international newsgathering trips to countries of

interest. These trips permit the associations

members to extend the reach of _ their

international coverage beyond what otherwise

would be possible, thus enriching their reporting

to the public. The association arranges a series of

interview sessions in the destination country

including interviews with the nation’s leadership.

Trips to Cuba and Venezuela have included

meetings or press conferences with Fidel Castro

and Hugo Chavez, respectively. Should such an

excursion be arranged in Lebanon, and should

the participants interview, write about, and quote

members of Hezbollah, would they be exposing

themselves to criminal liability for knowingly

providing a “service” to Hezbollah?

aes

Amici include an anthropologist who developed

one of the first contemporary ethnographies of

war. She spent years on the front lines of various

conflicts, conducting extensive interviews with

members of groups such as the LTTE (the “Tamil

Tigers”), the Irish Republican Army (IRA), and

the Palestine Liberation Organization (PLO).

Her research has enabled her to predict

accurately the course of a wide range of

contemporary armed conflicts—an ability of

obvious and significant public value. But this

ability is the result of close and continuous

interaction with groups that include designated

foreign terrorist organizations, and she is deeply

concerned about the possible effect of the

material support statute on her future work.

Media outlets regularly post or broadcast

documents and videos produced and distributed

by designated foreign terrorist organizations.

See, eg., Andrea Elliott, A Call to Jihad

Answered itn America, N.Y. Times, July 12, 2009,

at Al (link to propaganda film by a Somali terror

sect on onlime version of article), available at

http://www .nytimes.com/2009/07/12/us/12somalis.

html; ‘New’ al Qaeda Tape May Contain Old Clip

of bin Laden, CNN.com, July 15, 2007 (story

about Osama bin Laden videotape includes link

to the video), available at http://www.cnn.com/

2007/WORLD/meast/07/14/bin.laden.video/index.

html#cnnSTCVideo. U.S. newspapers also

occasionally publish opinion pieces of

informational value to the public written by

representatives of designated foreign terrorist

organizations. See, e.g., Mousa Abu Marzook.

a

Hamas Speaks, L.A. Times, Jan. 6, 2009, at Al5

(Deputy of the Political Bureau of Hamas):

Mahmoud al-Zahar, No Peace Without Hamas,

Wash. Post, Apr. 17, 2008, at A23 (a founder of

Hamas); Ahmed Yousef, What Hamas Wants,

N.Y. Times, June 20, 2007, at A19 (political

adviser to Prime Minister Ismail Haniya); Ahmed

Yousef, Engage With Hamas; We Earned Our

Support, Wash. Post, June 20, 2007, at Allg

(same). In light of the fact that the government

has successfully prosecuted at least one Al Qaeda

member under the material support statute for

creating and disseminating a _ propagandist

videotape, see Press Release, U.S. Dep't of

Defense, Detainee Convicted of Terrorism Charge

At Military Commission Trial (Nov. 3, 2008),

_avatlable at http://www.defenselink.mil/releases/

release.aspx?releaseid=12329, can journalists be

confident that they may broadcast clips of such

. videos or otherwise provide a forum in which

terrorist groups air their views without risking

criminal prosecution”?

Amici include an anthropologist who studies the

manner in which ordinary Palestinians respond

to the pervasive, ongoing violence that surrounds

them. As part of her research, she has walked

alongside marchers in_ so-called “martyr

funerals,” public events honoring those who have

died in the Israeli-Palestinian conflict, including

suicide bombers. By walking alongside the

marchers, rather than simply observing from

afar, she is able to engage in frank conversation

with the participants and to overhear their

conversations with one another. As a result, she

-19-

has learned that there is a deep wave of cynicism

and apathy about the conflict among the general

population. This information is of clear value in

shaping our countrys own approach to the

conflict. Yet to the extent some of these funerals

may be organized by Hamas or other designated

terrorist groups, could the government decide

that she is providing “personnel” by virtue of

walking alongside the marchers?

The limitations that Congress has added to the

statute do little to allay the concerns of the

individuals or groups engaged in these or similar

activities because those’ limitations provide

inadequate assistance in determining the statute’s

scope. The knowledge requirement added by

Congress‘ sheds light on the statute’s substantive

terms, such as “service,” only if it is interpreted to

require a specific intent to further the terrorist

organizations illegal aims (see Part III, infra). As

for Congress's instruction that the statute should not

be construed to apply to speech protected by the

‘ This provision states:

To violate this paragraph, a person must have knowledge

that the orgamization is aé_ designated _ terrovist

organization (as defined in subsection (g)(6)), that the

organization has engaged or engages in terrorist activity

(as defined in section 212(a)(3)(B) of the Immigration and

Nationality Act), or that the organization has engaged or

engages in terrorism (as defined in section 140(d) (2) of

the Foreign Helatioms Authorization Act, Fiscal Years

1988 and 1989).

18U.S.C. § 2339B(a)(1)

5 s

First Amendment,° this provision is scant solace to a

prospective speaker who is uncertain about whether

his or her speech falls outside the not-always-

obvious parameters of First Amendment protection.

These parameters are indeed contested by the

parties in this case, each of which is represented by

learned counsel. Academic researchers and

journalists who communicate with or about foreign

terrorist organizations cannot be expected to enjoy

any greater certainty.

Nor do Congress’s definitions of the statutory

terms at issue provide much assistance. When it

comes to support in the form of “personnel,” for

example, Congress has specified that this provision

applies to those who work “under thfe] terrorist

organization's direction or control or [who] organize,

manage, supervise, or otherwise direct the operation

of that organization,” and it has exempted speakers

operating “entirely independently” from _ the

organization.® But the specification is_ itself

> The proviso states: “Nothing in this section sha!! be construed

or applied so as to abridge the exercise of mnghts guaranteed

under the First Amendment to the Constitution of the United

States.” 18 U.S.C. § 2339BQ).

6 The provision states in full:

No person may be prosecuted under this section in

connection with the term “personne!” unless that person

has knowingly provided. attempted to provide, or

conspired to provide a foreign terrorist organization with

1 or more individuals (who may be or include himself) to

work under that terrorist organization’s direction or

control or to organize, manage, supervise, or otherwise

direct the operation of that organization. Individuals

who act entirely independently of the foreign terrorist

>] _

hopelessly vague, especially when applied to scholars

and reporters engaged in research and reporting

that entail substantial interaction with members of a

proscribed group. Does a newspaper act “entirely

independently” when it performs the work of editing

an op-ed submitted by a terrorist leader, if the leader

retains ultimate control over the content of the

piece? Does a- researcher act “entirely

independently” when she attends an event organized

by a terrorist group in order to observe and

interview its members, given that the event itself

takes place under the group's “direction or control’?

Moreover, since the “entirely independently”

limitation applies only to material support in the

form of “personnel,” any researcher or journalist who

acts “entirely independently” when _ providing

anything that could be deemed a “service” or “expert

advice or assistance’—including any “specialized

knowledge’—still risks criminal prosecution.

The government’s construction of the term

“service’ is even less illuminating. In the briefing

for this case, the government has pointed to the

definitions of “service” contained in Webster's

Dictionary: “[A]n act done for the benefit or at the

command of another” or “useful labor that does not

produce a tangible commodity.” Pet. at 17 (citing

Webster's Third New International Dictionary of the

English Language 2075 (1993)). These definitions

raise more questions than answers. If the leader of a

organization to advance its goals or objectives shall not

be considered to be working under the foreign terrorist

organization's direction and contro]

18 U.S.C. § 2339B(h)

terrorist group dictates the time and place at which

a journalist can meet him for an interview, is the act

of showing up at the appointed time and place “an

act done ... at the command of another’? If a

cultural anthropologist writes an article about a

lesser-known terrorist group and thus raises the

group’s profile, could the act of writing the article

constitute “useful labor’?

As the above examples show, it is impossible for

prospective speakers to know whether a broad range

of innocent communications with, or concerning, a

designated group will be deemed the provision of

material support. If the vague terms of the statute

are allowed to stand, some researchers and

journalists presumably will continue their work out

of a sense of public duty and professional integrity.

Without question, however, there will be others who

conclude that the risks are simply too great. Such a

result will not only harm the speakers themselves; it

will result in an impoverished public understanding

and discourse regarding some of the most important

issues of our day—including the issue of terrorism.

Equally troubling, the vagueness inherent in the

statute gives the United States virtually unfettered

discretion to target disfavored speech as_ the

provision of forbidden material support to a

proscribed group. For example, the government

could decide to construe the term “service” to include

a news outlet’s reporting of a terrorist leader's

views--but only where the government perceives

that the news outlet in question has given the

government's policies unfavorable coverage in the

past. Similarly, a scholar whose studies suggest that

dialogue with terrorist groups is an effective method

of deterring violence might be more likely, when

compared to a scholar whose studies reach the

opposite conclusion, to find her communications

targeted by a government intent on combating

terrorist groups through a controversial armed

conflict.

This Court has not hesitated to invalidate

statutes under analogous circumstances. In

Herndon v. Lowry, 301 U.S. 242 (1937), the Court

vacated the conviction of a Communist Party

organizer under a Georgia statute criminalizing the

act of inciting violent overthrow of the government.

The Court ruled that the statute was

unconstitutionally vague because it failed to

distinguish sufficiently between advocacy and

incitement, thus vesting prosecutors and the jury

with undue discretion to criminalize a broad swath

of speech. See Herndon, 301 U.S. at 261-64.

Similarly, in Smith v. Goguen, 415 U.S. 566 (1974),

the Court struck down as unconstitutionally vague a

Massachusetts statute that forbade any person to

“treat[] contemptuously” the American flag—in large

part because “[s]tatutory language of such a

standardless sweep allows policemen, prosecutors,

and juries to pursue their personal predilections.”

Smith, 415 U.S. at 575.

None of the challenged categories in the material

support statute can survive analysis under Herndon

and Smith, or the dozens of Supreme Court cases

applying their teaching. In the end, the threat of

~ ” -

self-censorship and unfettered —_ prosecutorial

discretion to single out disfavored speech for

criminal prosecution combine to generate a _ toxic

speech climate that violates the First Amendment

vagueness doctrine.

Il. THE APPLICATION OF THE STATUTE TO

PURE SPEECH THAT HAS NEITHER THE

PURPOSE NOR EFFECT OF AIDING

TERRORIST GROUPS’ UNLAWFUL

ACTIVITIES VIOLATES THE FIRST AND

FIFTH AMENDMENTS

The key to modern free speech protection is the

shift from a willingness in the first quarter of the

20th century to suppress controversial speech merely

because it had a perceived tendency to lead to

harmful behavior, to the current requirement that

the government demonstrate a direct causal nexus

between the target speech and an extremely serious

harm that the government is empowered to prevent.

See, e.g., Herndon, 301 U.S. at 255-59; Bridges v.

California, 314 U.S. 252, 261-63 (1941): Dennis v.

United States, 341 U.S. 494, 526-27 (1951)

(Frankfurter, J., concurring); Brandenburg v. Ohio,

395 U.S. 444, 447-49 (1969); Texas v. Johnson, 491

U.S. 397, 409 (1989). While communication with the

predictable effect of advancing the unlawful ends of

a violent terrorist organization may be suppressed

because it poses a genuine threat of imminent and

serious harm, communication seeking to learn and

convey information about such a group, divert the

group from violence, or mitigate human suffering in

areas under the group's control cannot be suppressed

2.

because there is no causal nexus between such

innocent speech and a sufficiently serious harm.

This Court has recognized an _ additional

requirement under the First and Fifth Amendments

when the government seeks to prosecute someone for

speech or association with a group that engages in

unlawful conduct: the person must have a specific

intent to further the group’s unlawful ends. See

Dennis, 341 U.S. at 499-50; Scales, 367 U.S. at 221-

24; Elfbrandt v. Russell, 384 U.S. 11, 15-16 (1966).

This requirement of specific intent is particularly

important where individuals seek to associate in

some manner with groups (like those at issue in this

case’) that engage in both lawful and unlawful

activities:

(Q]uasi-political parties or other groups that

may embrace both legal and illegal aims differ

from a technical conspiracy, which is defined

by its criminal purpose, so that all knowing

association with the conspiracy is a proper

subject for criminal proscription as far as First

Amendment liberties are concerned. If there

were a_ similar’ blanket prohibition of

association with a group having both legal and

illegal aims, there would indeed be a real

danger that legitimate political expression or

association would be impaired, but the

membership clause, as here construed .. . does

not make criminal all association with an

organization which has been shown to engage

’ The PKK and LTTE engage in both lawful and unlawful

pursuits. See Humanitarian Law Project, 552 F.3d at 921

- 26 -

in illegal advocacy. There must be clear proof

that a defendant ‘specifically intend[s] to

accomplish [the aims of the organization] by

resort to violence. Thus the member for

whom the organization is a vehicle for the

advancement of legitimate aims and policies

does not fall within the ban of the statute: he

lacks the requisite specific intent... .

Scales, 367 U.S. at 229-30 (emphasis in the original)

(citation omitted).

The United States seeks to avoid full First

Amendment review by mischaracterizing

Respondents/Cross-Petitioners’ speech as a form of

“conduct” subject to the less stringent standard of

review used in United States v. O’Brien, 391 U.S. 367

(1968), to measure the constitutionality of draft card

burning. The O'Brien test is triggered by

prohibitions on non-speech behavior _ that

incidentally affect expressive elements of the

conduct. See O’Brien, 391 U.S. at 376-77. But the

proposed communications of Respondents/Cross-

Petitioners are pure speech. The government cannot

transform them into conduct simply by labeling

them “support” or “resources” and asserting that

they will result in some concrete harm (here, aiding

terrorist groups). The speech/conduct distinction

does not turn on the effects of the communication.

Any other interpretation would threaten, not only

the provision of human rights counseling that

Respondents/Cross-Petitioners propose to undertake,

but the academic freedom and freedom of the press

upon which researchers and journalists in all areas

.~. »

of inquiry rely. If the provision of human rights

counseling can be characterized as “conduct” based

on its practical application, so, too, could academic

research that motivates an economic competitor of

the U.S. to change its policies, or investigative

reporting that leads to a decline in the stock market.

In any event, the material support statute, as

applied to the pure’ speech proposed _ by

Respondents/Cross-Petitioners (and the speech in

which Amici routinely engage), cannot satisfy even

the diluted review standard in O’Brien because it

does not further an “important or substantial

governmental interest,” and is far “greater than is

essential to the furtherance of” any such interest.

O’Brien, 391 U.S. at 377.

The government's only plausible interest in

limiting speech with, or about, proscribed groups is

to avoid advancing their lawless activities. The

government contends that providing resources of any

kind to terrorist groups—whatever the purpose—

frees up other resources for them to pursue their

illegal aims. But even if one were to accept that

providing tangible property or money to proscribed

groups for innocent purposes, like hospitals and

orphanages, could free up property or money for

illegal uses, that rationale does not carry over to

pure speech. Unlike money or weapons, information

is not fungible. Learning about non-violent

alternatives does not enhance the ability to make

bombs; nor does communication with a researcher or

journalist who seeks to expand the store of public

information about the group. The United States

+ F

accordingly has not identified any plausible

governmental interest, much less a compelling one,

that would justify censoring innocent speech

concerning, or with, a proscribed group.

Ill. THE COURT SHOULD READ THE

MATERIAL SUPPORT STATUTE, WHEN

APPLIED TO PURE SPEECH, TO

REQUIRE BOTH A SPECIFIC INTENT TO

FURTHER AN UNLAWFUL END AND A

LIKELIHOOD OF HARM

If possible, a statute should be construed to avoid

raising substantial constitutional issues. See

Crowell v. Benson, 285 U.S. 22, 62 (1932). This

canon of constitutional avoidance is often deployed to

narrow statutes in tension with the _ First

Amendment. See, e.g., Edward J. DeBartolo v. Fla.

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.

568, 575 (1988). For example, in order to avoid

serious First Amendment concerns, this Court

construed a federal statute allowing customs agents

to seize obscene materials to require “intervals of no

more than 14 days from seizure of the goods to the

institution of judicial proceedings for their forfeiture

and no longer than 60 days from the filing of the

action to final decision in the district court,” despite

the fact that the statute itself contains no time

limitations. United States v. Thirty-Seven

Photographs, 402 U.S. 363, 373-74 (1971). Judicial

application of the avoidance canon _ respects

Congress's equal commitment to constitutional

values, see Almendarez-Torres v. United States, 523

U.S. 224, 238 (1998): Public Citizen v. U.S. Dep't of

- 29 -

Justice, 491 U.S. 440, 466 (1989), while leaving

Congress the option to enact a broader statute

subject to judicial review for constitutional

soundness.

Application of the avoidance canon is particularly

appropriate in this case. First, no doubt exists that

the prospect of criminalizing Respondents’/Cross-

Petitioners’ proposed speech triggers the canon.

Prior to the Court’s decision in United States v. Del.

& Hudson Co., 213 U.S. 366, 407-08 (1909), the

avoidance canon was applied only after a finding

that a statute was, in fact, unconstitutional. In the

modern era, however, the Court deploys the canon if

the statute’s application to proposed speech would

raise a serious constitutional issue. See Adrian

Vermeule, Saving Constructions, 85 Geo. L. J. 1945,

1949, 1958-59 (1997). As discussed in Parts I and II,

supra, significant constitutional concerns would be

raised if the statute's vague terms could be

interpreted to apply to pure speech that is not

intended or likely to further the unlawful aims of

designated organizations.

Second, the statute is amenable to a narrowing

construction, as demonstrated by this Court’s rulings

in Scales v. United States, 367 U.S. 203 (1961), and

Yates v. United States, 354 U.S. 298 (1957). The

statutory provision at issue in Scales made it a crime

to become a member of any group that advocated

violent overthrow of the U.S. government, “knowing

the purposes thereof’—1i.e., knowing that the group

espoused violent overthrow. 18 U.S.C. § 2385. The

Court construed the statute to apply only to active

- 30-

members possessing a specific intent to further the

organization’s illegal aims. See Scales, 367 U.S. at

221-24. Although the Court did not specify the

precise textual hook on which it hung this

interpretation, later cases confirmed that the key to

the Court’s narrowing construction was. the

knowledge requirement. See Aptheker v. Secretary of

State, 378 U.S. 500, 511 n.9 (1964); United States v.

Robel, 389 U.S. 258, 262 (1967). Thus, even though

the plain language of that provision required

knowledge only of the organization's illegal aims, the

Court construed the provision to require a specific

intent to further those aims.®

The Ninth Circuit panel below deemed Scales

distinguishable on the ground that “the statute in

Scales ... was silent with respect to requisite mens

rea,” while the material support statute “exposes one

to criminal liability only where the government

proves that the donor defendant acted with culpable

intent—knowledge.” Humanitarian Law Project,

552 F.3d at 926. In fact, the statute at issue in

Scales not only contained a knowledge requirement;

it contained a knowledge requirement very similar to

the one in the material support statute, L.e.,

knowledge of the organization’s illegal aims or

activities. The Court in Scales found that this

5 The Court in Scales was not called upon to address whether

membership could be criminalized absent any likelihood that

such membership would lead to a sufficiently serious harm.

See Scales, 367 U.S. at 230 n.21 (“As both sides appear to agree

that the ‘clear and present danger’ doctrine . reaches the

membership clause of the Smith Act, and since the petition for

certiorari tenders no issue as to the method of applying it here,

we do not consider either question.”)

. Pf

knowledge requirement could—and must—be read

to include a requirement of specific intent.

In addition to the specific intent requirement, a

statute restricting protected speech must be

construed, if possible, to apply only to speech that is

likely to cause to a particularly serious harm, given

that the statute otherwise would violate the First

Amendment. See Part II, supra. In Yates, the Court

considered a statutory provision making it a crime

“to knowingly or willfully advocate ... or teach”

violent overthrow of the U.S. government. Yates,

354 U.S. at 301 n.1. The Court acknowledged that

advocating merely the idea of forcible overthrow

would satisfy the “ordinary dictionary definitions” of

“advocate” and “teach.” Jd. at 319. It nonetheless

held that such advocacy, even “if engaged in with the

intent to accomplish overthrow,” was “too remote

from concrete action” to justify criminal sanction, id.

at 321, and it refused to “assume that Congress

chose to disregard a constitutional danger zone so

clearly marked.” Z/d. at 319. The Court therefore

construed the statute to apply only to “advocacy of

action, not ideas,” id. at 320, noting that such

advocacy is not constitutionally protected when the

audience is “of sufficient size and cohesiveness, is

sufficiently oriented toward action, and other

circumstances are such as reasonably to justify

apprehension that action will occur.” Jd. at 321.

The material support statute similarly should be

construed to apply to pure speech only where that

speech is likely to produce the concrete harm that

the statute is intended to prevent. The term

<i.

“material support” itself is readily interpreted to

incorporate such a limitation. In light of the clear

purpose of the statute—i.e., to “prevent and punish

acts of terrorism,” H.R. Rep. No. 104-518, at 1 (1996)

(Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 944,

944—“material support” may fairly -be construed as

support that is likely to enhance the designated

organization's ability to engage in terrorist acts.9

These constructions are plausible readings, not

only of the statutory language, but of congressional

intent. In 2004, Congress added a provision to the

material support statute limiting its scope to persons

who act with “knowledge that the organization is a.

designated terrorist organization .. . that the

organization has engaged or engages in terrorist

activity ... or that the organization has engaged or

engages in terrorism.” 18 U.S.C. § 2339B(a)(1).

Although this provision does not expressly require

specific intent to further the organizations’ unlawful

activities, Congress was presumptively aware that

the Court in Scales construed a_ substantially

equivalent provision to contain such a requirement.

See Abuelhawa v. United States, 129 S. Ct. 2102,

2106 (2009) (“[W]Je presume legislatures act with

case law in mind.”); Lorillard v. Pons, 434 U.S. 575,

580 (1978) (“Congress is presumed to be aware of an

administrative or judicial interpretation of a

statute.”). Moreover, Congress at the same time

4 Amict do not argue that the Court must adopt such a

narrowing interpretation in all applications of the statute.

Rather, under the canon of constitutional avoidance, a

narrow ing construction need apply only in those contexts where

it is necessary to avoid serious constitutional concerns.

i

added a provision prohibiting any construction or

application of the statute that would abridge the

exercise of First Amendment rights. See 18 U.S.C. §

2339B(i). It did so against the backdrop of the

longstanding, well-settled case law cited in Part II,

supra, establishing both the “specific intent”

requirement and the requirement of a close causal

connection between the restricted speech and a

sufficiently serious harm.

CONCLUSION

Fifty years ago, confronted with a totalitarian

communist threat to the very existence of our

political and social order, this Court insisted on

distinguishing innocent speech from speech with the

purpose and effect of advancing imminent

lawlessness and violence. See, e.g., Elfbrandt, 384

U.S. at 11; Robel, 389 U.S. at 264 (“For almost two

centuries, our country has taken singular pride in

the democratic ideals enshrined in its Constitution,

and the most cherished of those ideals have found

expression in the First Amendment. It would indeed

be ironic if, in the name of national defense, we

would sanction the subversion of one of those

liberties.”). If we are to preserve scholarship and

journalism of extraordinary value to all of us in our

modern society, we can do no less_ today.

Accordingly, Amici urge the Court to rule in favor of

Respondents/Cross-Petitioners.

November 23, 2009

» 94

Respectfully submitted,

BURT NEUBORNE

Counsel of Record

ELIZABETH GOITEIN

EMILY BERMAN

DAVID UDELL

THE BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL OF

LAW

161 Avenue of the Americas,

12th Floor

New York, NY 10013

(212) 998-6730

SIDNEY S. ROSDEITCHER

1285 Avenue of the Americas

New York, NY 10019-6064

(212) 373-3000

Attorneys for Amict Curtae