Amicus Curiae Brief — Holder v. Humanitarian Law Project

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IN THE

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,

Petitioners,

HUMANITARIAN LAW PROJECT, ET AL.,

ee Respondents.

HUMANITARIAN LAW PROJECT, ET AL.,

Cross-Petitioners,

—V—

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE CARTER CENTER,

CHRISTIAN PEACEMAKER TEAMS, GRASSROOTS

INTERNATIONAL, HUMAN RIGHTS WATCH, INTER-

NATIONAL CRISIS GROUP, THE INSTITUTE FOR

CONFLICT ANALYSIS AND RESOLUTION AT GEORGE

MASON UNIVERSITY, THE KROC INSTITUTE FOR

INTERNATIONAL PEACE STUDIES AT NOTRE DAME

UNIVERSITY, OPERATION USA, AND PEACE APPEAL

FOUNDATION IN SUPPORT OF HUMANITARIAN

LAW PROJECT, ET AL.

MELISSA GOODMAN

Counsel of Record 0°

STEVEN R. SHAPIRO

JAMEEL JAFFER

LAURENCE M. SCHWARTZTOL

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF CONTENTS

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| __ TEAI AT TITLE TORTS 1

SUMMARY OF ARGUMENT .........0.0.00 0.0... eee 6

TE bancanitdanisitingsnciunitilubeniinissisiiainininvideegeesniaten 7

I. THE STATUTE’S PROHIBITIONS ON

“SERVICE(S],” “TRAINING,” “EXPERT

ADVICE AND ASSISTANCE,” AND

“PERSONNEL” ARE UNCONSTITUTION-

ALLY VAGUE AS APPLIED TO PLAINTIFFS

AND THREATEN TO CRIMINALIZE

ACTIVITIES THAT ARE PROTECTED BY

THE FIRST AMENDMENT ............................ 7

A. Teaching and Instruction in Peace-

cad ens iddgsadigntanenis 12

B. Conflict Resolution and Mediation........ 15

C. Advocacy Directed at Violent Actors..... 18

D. Independent Advocacy That Could Be

Perceived as “For the Benefit of”

i da 24

NS EIT AOC OID 25

ll. TO THE EXTENT THAT THE STATUTE

DOES PUNISH SPEECH AND ADVOCACY

INTENDED TO FURTHER LAWFUL.

ACTIVITY, THE STATUTE VIOLATES THE

PUREE © AMEE TEPOIIDT DT osesscevesscssserecessseatessvecses 29

A. ‘The Government May Not Punish Speech

Based On Fear Of A Third-Party s

Potential Unlawful Conduct Unless The

Speaker Intends To Incite Imminent

|. uadesacesosamecsaull

B. This Constitutional Violation Cannot Be

Cured Simpl ingent

On Association With Designated

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TABLE OF AUTHORITIES

Cases

Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002)..33

Bartnicki v. Vopper, 532 U.S. 514 (2001) ................. 30

Bd. of Trs. of State Univ. of N.Y. v. Fox,

I I ccriainieecidiunbattitersintaiiaaebnadienendinesenisiehin 12

Brandenburg v. Ohio, 395 U.S. 444 (1969)......... 31, 33

Chicago v. Morales, 527 U.S. 41 (1999)...................... 8

Coates v. City of Cincinnati, 402 U.S. 611 (1971)...... 7

Cox v. State of La. 379 U.S. 536 (1965) ...........00.0..... 30

De Jonge v. State of Or., 299 U.S. 353 (1937).....32, 35

Dennis v. United States, 341 U.S. 494 (1951)........... 12

Gentile v. State Bar of Nev., 501 U.S. 1030 (1991).....9

Grayned v. City of Rockford,

ee Ce I aah cicciccosiitiiasppeicsiersitiineninindakeuensis 7,8

Griswold v. Connecticut., 381 U.S. 479 (1965)......... 12

Healy v. James, 408 U.S. 169 (1972) ................c.ce eee. 35

Hill v. Colorado, 530 U.S. 703 (2000) .........0.000000200... 12

Humanitarian Law Project v. Mukasey,

652 F.3d SiG @th Cir. ZOOS)............0.00000000005....0. 9, 10

Lovell v. City of Griffin, Ga., 303 U.S. 444 (1938)....32

Martin v. City of Struthers, Ohio,

a od saunseuipnadisueion 12, 32

N.Y. Times v. Sullivan, 376 U.S. 254 (1964) ............ 30

NAACP v. Button, 371 U.S. 415 (1963) ........ 12, 30, 36

il

NAACP v. Claiborne Hardware Co..,

FS LER ee EOD passim

NAACP v. State of Ala. ex rel. Patterson,

I a ceclcemrinantnninen 12

Scales v. United States, 367 U.S. 203 (1961)............ 34

Smith v. Goguen, 415 U.S. 566 (1974)................ 7, 8,9

Thomas v. Collins, 323 U.S. 516 (1948).................... 32

United States v. Robel, 389 U.S. 258 (1967)............. 35

Vill. of Schaumburg v. Citizens for a Better Env't,

I a epetienenguenens 12

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982)........................008. 7

Virginia v. Black, 538 U.S. 343 (2003) ..................... 31

Whitney v. California, 274 U.S. 357 (1927).............. 12

Statutes

18 U.S.C. § 2339A

FR A eh AR ETE ONE Re AR RI AR ee 9

NE CO es ORS ce 2

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18 U.S.C. § 2339B

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Other Authorities

Ahilan T. Arulanantham, Testimony at Oversight

Hearing on Amendments to the Material Support

for Terrorism Laws: Section 805 of the USA

PATRIOT Act and Section 6603 of the Intelligence

Reform and Terrorism Prevention Act of 2004,

Before the Subcommittee on Crime, Terrorism and

Homeland Security of the House Judiciary (May

FI, BU sessstnciensicenitsdiobataiénuiiinaedasmadanammiagaaammineaaaaee 28

Gady A. Epstein, Maryland MD Struggles for Tamil

Patients, Balt. Sun, Jan. 23, 2005..............000000..... 28

Human Rights Watch, Trapped and Mistreated:

LTTE Abuses against Civilians in the Vanni

SE: SII cecincccintcenracreiesastebanhssnieipntelitinagein dit eoke satan ae 20

Human Rights Watch, Civilians under Assault

Hezbollah’s Rocket Attacks on Israel in the 2006

RN SN IPOD snsncocccecussaccancdchaderetesseemmmneanannee 20

Human Rights Watch, Living in Fear: Child Soldiers

and the Tamil Tigers in Sri Lanka (Nov. 2004) ...20

Human Rights Watch, “Youll Learn Not To Cry’:

Child Combatants in Colombia (Sept. 2003)........ 20

Human Rights Watch, Erased in a Moment: Suicide

Bombing Attacks Against Israeli Civilians (Oct.

IIE occtcicounianniudasneaiiedeaniidanadinunmadda animale 20

Human Rights Watch, Beyond Negotiation:

International Humanitarian Law and its

Application to the Conduct of the FARC-EP

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INTEREST OF AMICI

Amici file this brief in support of plaintiffs’ as

applied challenge to the constitutionality of 18 U.S.C.

§ 2339B. Amici are a diverse coalition of conflict

resolution, human rights, humanitarian aid,

academic, and advocacy organizations that share a

profound concern about the implications of the

material support statute for their efforts to foster

peace, further human rights, and alleviate human

suffering around the world.!

The challenged statute makes it a crime

punishable by up to 15 years in prison to provide

“material support or resources” to an organization

the Secretary of State has designated a “foreign

terrorist organization” (FTO). 18 U.S.C.

§ 2339B(a)(1); see also 8 U.S.C. § 1189. These severe

criminal penalties attach whether or not the provider

of “material support” intends to further the

designated organization's violent or unlawful aims.

Under the statute, it is enough that the provider

knows “that the organization is a designated

terrorist organization [or] has engaged or engages in

terrorist activity.” 18 U.S.C. § 2339B(a)(1). Thus, a

provider can be held criminally lable even if he or

she opposes the terrorist activities of the designated

' Pursuant to Rule 37.3, letters of consent from the parties have

been submitted to the Clerk of the Court. Pursuant to Rule

37.6, counsel for amici states that no counsel for a party

authored this brief in whole or in part, and no counse! or party

made a monetary contribution intended *o fund the preparation

or submission of this brief. No person other than amici, their

members or their counsel made a monetary contribution to its

preparation or submission.

group and even if the support is intended to further

entirely peaceful, lawful objectives. Moreover,

“material support” is defined broadly to include,

among other things, any “service,” “training,” “expert

advice or assistance,” or “personnel.” Id. at

§ 2339A(b)(1). Each of these terms is vague and

sweeping, and potentially proscribes a wide range of

speech and advocacy that is protected by the First

Amendment and necessary to amici’s work.

Amici emphatically oppose terrorism.

However, peace-making, conflict resolution, human

rights advocacy, and the provision of aid to needy

civilians sometimes requires direct engagement with

groups and individuals that resort to or support

violence, including some that are, have been, or

might in the future be designated as FTOs. For

example, effective conflict resolution often requires

negotiating and mediating with armed actors, and

providing each side to a conflict with strategic advice

or expertise. Effective advocacy for peace often

requires direct persuasion and lobbying of armed

actors to choose non-violent means to achieve their

ends. Effective human rights advocacy often

requires directly persuading the perpetrators of

abuses to cease their rights-violating practices,

explaining to the perpetrators their obligations

under human rights and humanitarian law, and

advising the perpetrators how to comply with those

obligations. Similarly, effective aid distribution,

disaster relief, and development efforts in conflict

zones where violent actors dominate may require

advising, sharing expertise, and negotiating with

local partners, some of whom may personally support

or be members of groups that engage in violence.

All of this work is intended to further lawful

ends, not terrorism. However, as a result of the

breadth and vagueness of the material support

statute’s terms, it is unclear to amici whether these

kinds of activities — many, if not all, of which are

protected by the First Amendment —- could expose

them to the risk of severe criminal penalties if they

involve a group or members of a group that the US.

government has, or may in the future, designate as

an FTO.

The Carter Center, in partnership with

Emory University, 1s guided by a fundamental

commitment to human rights and the alleviation of

human suffering. It seeks to prevent and resolve

conflicts, enhance freedom and democracy, and

improve health. Founded in 1982 by former U.S.

President Jimmy Carter and former First Lady

Rosalynn Carter, the Center has helped to improve

the quality of life for people in more than 70

countries.

Christian Peacemaker Teams (CPT) arose

from a call in 1984 for Christians to devote the same

discipline and _ self-sacrifice to nonviolent

peacemaking that armies devote to war. Committed

to nonviolent alternatives to war, CPT places

violence-reduction teams in crisis situations and

militarized areas around the world at the invitation

of local peace and human rights workers. With a

diverse membership of Catholics, Baptists,

Presbyterians, Mennonites, Brethren and Quakers,

CPTs peacemaking emphasizes creative public

witness, nonviolent direct action and protection of

human rights.

Grassroots International (GRI) is a human

rights and international development organization

that promotes global justice through partnerships

with social change organizations. GRI works around

the world to advance political, economic, and social

rights and supports development alternatives

through grantmaking, education, and advocacy.

Human Rights Watch (HRW) is one of the

world’s leading independent organizations dedicated

to defending and protecting human rights. HRW

stands with victims and activists to prevent

discrimination, to uphold political freedom, to protect

people from inhumane conduct in wartime, and to

bring offenders to justice. HRW investigates and

exposes human rights violations and holds abusers

accountable. HRW challenges governments and non-

state actors to end abusive practices and respect

international human rights law. HRW currently

monitors human rights abuses in over 80 countries.

International Crisis Group (ICG) is an

independent, non-profit, non-governmental

organization, with approximately 130 staff members

on five continents, working through field-based

analysis and high-level advocacy to prevent and

resolve deadly conflict worldwide. ICG is widely

recognized as the world’s leading independent, non-

partisan source of analysis and advice to

governments and intergovernmental bodies on the

prevention and resolution of deadly conflict. ICG

actively monitors over 60 conflicts and potential

conflicts around the globe.

The Institute for Conflict Analysis and

Resolution at George Mason University (ICAR)

is committed to the development of theory, research,

and practice that interrupts cycles of violence. ICAR

advances the understanding of deeply rooted

conflicts all over the world through research,

teaching, practice, and outreach.

The Kroc Institute for International

Peace Studies at Notre Dame University is one

of the world’s principal centers for the study of the

causes of violent conflict and _ strategies for

sustainable peace. Faculty conduct research on war,

genocide, terrorism, ethnic and religious conflict, and

violation of human rights; teach students earning

doctoral, masters and bachelor degrees in peace

studies; and, contribute to on-the-ground peace-

building worldwide through consultation, facilitation

and research.

Operation USA helps communities alleviate

the effects of disasters, disease and endemic poverty

throughout the world by providing privately-funded

relief, reconstruction and development aid.

Operation USA provides material and financial

assistance to grassroots organizations that promote

sustainable development, leadership and capacity

building, and income generating activities; provides

education and health services; and advocates on

behalf of vulnerable people.

Peace Appeal Foundation (PAF) supports

peace and conflict resolution processes globally

through interventions (typically establishing

dialogue and negotiations support structures)

designed to achieve agreed, fair and just outcomes.

or

The cornerstone of PAF’s work is comprised of direct,

sustained mediation, facilitation and advisory

services in some of the world's most intractable

conflicts. PAF also works collaboratively with local

and international partners to develop = and

disseminate innovative’ tools, methodologies,

educational materials and programs in support of

peace and conflict resolution efforts.

SUMMARY OF ARGUMENT

The material support statute’s prohibitions on

“service,” “training,” “personnel,” and “expert advice

or assistance” are unconstitutionally vague as

applied to the kind of peaceful, non-violent speech

and advocacy in which both plaintiffs and amici

engage. Amici, like plaintiffs, are left hopelessly

guessing — at the risk of grave penalty — whether

their advocacy for peace or human rights, their

engagement in or facilitation of peace-making

dialogue, or the expressive components of their

humanitarian aid work crosses the line from

constitutionally protected to criminally proscribed.

To the extent that the vague terms of the

statute do, in fact, proscribe this kind of speech and

advocacy, the statute suffers two independently fatal

flaws under the First and Fifth Amendments. First,

it proscribes speech and advocacy that is intended to

further only lawful, non-violent activity — and which

in no way incites others to imminent lawless action —

merely because the recipient or beneficiary of that

speech has been unilaterally designated as a

terrorist organization by the Executive Branch.

Second, it punishes association with a group even

where the association is not intended to further the

yroup’s unlawful activities and is, in fact, intended to

dissuade the group from engaging in unlawful

activities.

ARGUMENT

I. THE STATUTE’S PROHIBITIONS ON

“SERVICE[S],” “TRAINING,” “EXPERT

ADVICE AND _ ASSISTANCE,” AND

“PERSONNEL” ARE UN-

CONSTITUTIONALLY VAGUE AS

APPLIED TO PLAINTIFFS AND

THREATEN TO CRIMINALIZE

ACTIVITIES THAT ARE PROTECTED BY

THE FIRST AMENDMENT

The challenged terms are unconstitutionally

vague under the Fifth Amendment.

While vague laws are always suspect, courts

harbor the least tolerance for vague laws that carry

criminal penalties. Vill. of Hoffman Estates uv.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99

(1982). Criminal laws are unconstitutionally vague

if they fail to “give the person of ordinary intelligence

a reasonable opportunity to know what is

prohibited.” Grayned v. City of Rockford, 408 U.S.

104, 108 (1972). In other words, a law is

unconstitutionally vague if it fails to provide

adequate notice of proscribed conduct. See.id. (“an

enactment is void for vagueness if its prohibitions

are not clearly defined”); see also Smith v. Goguen,

415 U.S. 566, 572 (1974) (the vagueness doctrine

“incorporates notions of fair notice or warning”);

Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)

(a law is vague if it tethers individual liability to “an

unasertainable standard,” leaving persons “of

common intelligence [to] guess at its meaning”

(internal quotation marks omitted)). Because “we

assume that a [person] is free to steer between lawful

and unlawful conduct,” he or she has to be given

enough clear direction to “act accordingly.” Grayned,

408 U.S. at 108.

Criminal laws are also unconstitutionally

vague if they authorize or encourage “arbitrary and

discriminatory enforcement.” Chicago v. Morales,

527 U.S. 41, 56 (1959). Laws must “provide explicit

standards for those who apply them” in order to

avoid the “dangers of arbitrary and discriminatory

application.” Grayned, 408 U.S. at 108-109. They

cannot “delegate[ ] basic policy matters to policemen,

judges, and juries for resolution on an ad hoc and

subjective basis.” Id.; see also Smith, 415 U.S. at 575

(“Statutory language [with] standardless sweep

allows policemen, prosecutors, and juries to pursue

their personal predilections. Legislatures may not so

abdicate their responsibilities for setting the

standards of criminal law.”).

Vague criminal laws are especially

problematic where they “abut[ ] upon sensitive ares

of basic First Amendment freedoms” and “operate[ ]

to inhibit the exercise of (those) freedoms.” Grayned,

104 U.S. at 109 (internal quotation marks omitted).

The vagueness doctrine incorporates a_ special

s‘icitude for First Amendment concerns because

statutes that have uncertain meanings inevitably

lead people to “steer far wider of the unlawful zone

. than if the boundaries of the forbidden areas

were clearly marked.” Jd. (internal quotation marks

omitted). Statutes that have uncertain meanings

also increase the risk that individuals will be

iargeted for punishment because of unpopular

speech or expression. See, e.g., Gentile v. State Bar of

Nev., 501 U.S. 1030 (1991). For this reason, a

heightened level of clarity is required of criminal

statutes that threaten to encroach upon First

Amendment-protected activities. See Smith, 415

U.S. a. 573 (“Where a statute’s literal scope ... is

capable of reaching expressions sheltered by the

First Amendment, the doctrine demands a greater

degree of specificity than in other contexts.”).

In this case, the Court of Appeals correctly

held that the criminal prohibitions on “service,”

“training,” and “expert advice or assistance derived

from .. . specialized” knowledge are fatally void for

vagueness as applied to plaintiffs’ intended speech.

Humanitarian Law Project v. Mukasey, 552 F.3d 916,

928-30 (9th Cir. 2009). The Court of Appeals erred,

however, in holding that “expert advice and

assistance derived from .. . scientific or technical”

knowledge and “personnel” survived vagueness

scrutiny. Jd. at 930-931.

The prohibition on “training” fails to convey to

a person of common intelligence which activities are

prohibited and which are not. “[T]raining” is defined

to mean “instruction or teaching designed to impart a

specific skill, as opposed to general knowledge.” 18

U.S.C. § 2339A(b). Nothing in the statute explains

how to distinguish “instruction designed to impart a

specific skill” from instruction bestowing “general

knowledge.” Nor does common usage illuminate that

distinct:on. Several amici here provide teaching and

direction in conflict resolution, non-violence, and

humanitarian aid. But they cannot meaningfully

discern whether the skills or information they impart

are general (in which case their conduct would be

permitted) or specific (in which case it would not be).

See infra 12-14, 23.

The phrase “expert advice or assistance”

similarly fails to provide meaningful notice of what

conduct is_ prohibited. “[E]xpert advice and

assistance” is defined to mean “advice or assistance

derived from scientific, technical or other specialized

knowledge.” 18 U.S.C. § 2339A(b)(3). Nothing in the

statute provides a firm sense of what that definition

encompasses. Not only does the statute fail to give

any guidance how to distinguish “technical”

knowledge from non-technical knowledge, or how to

distinguish knowledge that is “specialized” from

knowledge that is general, it is utterly unclear what

it means for information to be “derived from”

technical or _ specialized knowledge. The

government's interpretation of these terms

underscores the _ problem. For example, the

government has asserted that lawyers could be

providing “expert advice or assistance” by filing an

amicus brief in support of a designated organization.

Humanitarian Law Project, 552 F.3d at 930. Amici

cannot meaningfully ascertain whether, for example,

sharing expertise about international law, conflict

resolution strategies, or how to rebuild a village after

a natural disaster could constitute unlawful

provision of “specialized,” “technical,” or “scientific”

knowledge. See infra 13-15, 20-23, 26-27.

10

The term “service,” which is not defined in the

material support statute at all, presents similar

concerns. The government has interpreted the term

to encompass any “act done for the benefit of’ a

designated group. Petition for Writ of Certiorari at

17, Holder v. Humanitarian Law Project, No. 08-

1498 (S. Ct. June 4, 2009). This interpretation,

however, gives no meaningful notice of the conduct

that is proscribed. A substantial amount of amici’s

work could be perceived to be “for the benefit” of

designated groups, even though this’ work

encourages peace and non-violence, not terrorism.

See infra 13-14, 16-18, 23-25.

The prohibition on “personnel” also fails to

provide concrete yuidance regarding what is

prohibited. Provision of “personne!” entails, among

other things, “knowingly” providing one or more

persons (including oneself) “to work under that

terrorist organization’s direction or control.” 18

U.S.C. § 2339B(h). The definition excludes

“fij]ndividuals who act entirely independently of the

foreign terrorist organization to advance its goals or

objectives.” Jd. Its sweep is limited only by the

elastic concept of working “entirely independently” of

a designated group, a concept undefined by the

statute.

The vagueness of the challenged terms is

especially problematic because the terms can fairly

be construed to reach activity that is protected by the

First Amendment. Indeed, the challenged terms

potentially implicate a great deal of the First

Amendment-protected speech and advocacy in which

amici engage in the course of their peace-building,

1]

human rights-promoting, and humanitarian work,

whether it be teaching or instruction, see infra 12-14;

communicating ideas and discussing ways to forge

peace, see infra 15-18; or advocacy to further human

rights, the rule of law, or non-violence, see infra 18-

25.2

A. Teaching _ And Instruction In Peace-

Building Skills

Several of amici pursue their humanitarian or

peace-building agendas by providing instruction in

® See generally, Brief of Respondents/Cross-Petitioners at 23-24,

Holder v. Humanitarian Law Project, Nos. 08-1498 and 09-89

(filed Nov. 16, 2009); see also Whitney v. California, 274 U.S.

357, 373 (1927) (Brandeis, J., concurring) (the right of “free

speech” and “the right to teach” are “fundamental rights’);

Dennis v. United States, 341 U.S. 494, 574 (1951) (Goldberg, J.,

concurring) (the First Amendment protects “teaching” and

“advocacy”); Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.

469, 482 (1989) (the First Amendment protects “tutoring’);

Martin v. City of Struthers, Ohvo, 319 U.S. 141, 141-42 (1943)

(the First Amendment protects one’s ability to “communicate

ideas”); Vill. of Schaumburg v. Citizens for a Better Envu't, 444

U.S. 620, 632 (1980) (the First Amendment protects

“communication of information” and “the advocacy of causes’);

NAACP v. Button, 371 U.S. 415, 429 (1963) (the First

Amendment “protects vigorous advocacy .. . of lawful ends”);

Hill v. Colorado, 530 U.S. 703, 716 (2000) (the “right to free

speech .. . includes the right to attempt to persuade others to

change their views”); Griswold v. Connecticut., 381 U.S. 479,

482 (1965) (“The right of freedom of speech .. . includes .. . the

right to distribute [information], the mght to receive

(information] ... and freedom to teach.”); NAACP v. State of

Ala. ex rel. Patterson, 357 U.S. 449, 460 (1958) (the First

Amendment protects one’s ability to associate for the

“advancement of belefs and ideas’).

non-violence. This activity falls comfortably within

the First Amendment’s zone of protection. See supra

12 n.2. Yet the statute fails to supply sufficient

clarity in its definitions to allow amici to determine

whether this activity violates § 2339B.

1. In order to reduce violence around the

world, Christian Peacemaker Teams (CPT), places

violence-reduction teams in conflict zones. Such

teams currently operate in Northern Iraq, Colombia,

and the West Bank. These teams provide, among

other things, reconciliation and non-violence training

at the request of local non-governmental

organizations (NGOs). Participants may include

individuals who are members of groups that engage

in violence. The aim of these trainings is to educate

participants about the history of various non-violent

social change movements; explain the benefits,

effectiveness, and _ legitimacy of non-violent

approaches; teach specific techniques of non-violent

resistance and reconciliation; and advise participants

on how to put these techniques to concrete use.

It is unclear whether this activity — to the

extent that members of any proscribed group might

participate -— might be construed as_ prohibited

training or expert advice because it is unclear

whether CPT is imparting information derived from

specialized knowledge or specific skills, or general

knowledge. It is also unclear whether this activity

might be construed as a prohibited service on the

theory that the trainings are done “for the benefit of”

the participants.

CPT also occasionally provides non-violence

trainings at the request of armed actors themselves.

13

For example, long before the material support

statute existed, the armed wing of Fatah (a faction of

the PLO) approached CPT and requested a training,

which CPT provided. Like all of CPT’s non-violence

trainings, the training was intended to convince the

group to renounce violence and adopt non-violent

resistance techniques instead. It was not intended to

further terrorism. Had Fatah been a designated

group, however, CPT’s activities might have

constituted prohibited training, expert advice derived

from specialized knowledge, or a service.

2. The Carter Center, among its many

activities to resolve and prevent violent conflicts

around the world, helps regional organizations build

capacity for peaceful conflict resolution. To this end,

the Carter Center uses creative means to teach

organizations and individuals peaceful conflict

resolution techniques. In furtherance of its mission,

the Carter Center would like to launch a project to

teach peaceful conflict resolution in universities in

Gaza throvgh the formation of a_ student

“parliament,” where students could come to voice

concerns and be trained to adjudicate disputes. The

goal would be to make students accustomed to

solving disputes through peaceful dialogue rather

than violence. Although this activity is plainly

intended to end terrorism, not support it, the Carter

Center is unsure if it can initiate this program

without running afoul of the material support

statute, if at least some of the students participating

are known or likely to be members of Hamas or other

designated FTOs. It is unclear whether the program

could be construed as a_ prohibited service, or

14

whether some aspects of the program might entail

the provision of prohibited training or expert advice

derived from specialized knowledge.

B. Conflict Resolution and Mediation

Some amici directly engage with parties to

violent hostilities in order to peacefully resolve

conflicts. These activities implicate important First

Amendment concerns, requiring increased clarity of

the statute’s operative terms. See supra 12 n.2. But,

again, amici must navigate these inherently delicate

situations in the face of vague statutory language.

1. For example, the Carter Center, through

its Conflict Resolution Program, monitors and

mediates conflicts, helps implement peace

agreements, strengthens rule of law, and facilitates

dialogue to ease tensions. When democracy

backslides or diplomacy fails, the Carter Center

offers mediation and facilitation expertise for peace-

making in Africa, the Middle East, Latin America,

and Asia, and tries to fill the space between official

diplomacy and unofficial grassroots peace efforts.

This work, by necessity, requires meeting with all

sides to a conflict. The Carter Center engages all

parties — elected leaders, political party officials,

international bodies, diplomats, NGOs, the media,

and independent analysts — in its advocacy for

peaceful solutions. In the course of resolving or

preventing conflicts, Carter Center staff will meet

with violent actors - some of whom may be or may in

the future be designated as FTOs — to persuade them

to cease violent activity and discuss specific paths to

peace. Sometimes the Carter Center will directly

mediate between parties to help negotiate a cessation

of hostilities. In the course of these meetings, the

Carter Center may discuss’. peace-facilitating

strategies. The Carter Center may also advise

groups on their obligations under international law.

The Carter Center has engaged in this kind of

conflict resolution activity with, among others, the

PLO, Fatah, Hamas, Hezbollah, the SPLN in Sudan,

the Lord’s Resistance Army in Uganda, and the

Maoists in Nepal. The intent, of course, is to further

peace, not terrorism.

It is unclear, however, whether any advice or

expertise that may be communicated during these

dialogues might be construed as specialized, as

opposed to general, advice or assistance. Moreover,

it is unclear whether the facilitation of these

dialogues, or even the dialogues themselves, might

be construed as a prohibited service to the extent

that this activity is done at least in part for the

benefit of the parties to a conflict. The statute gives

no guidance on structuring this peace-promoting

activity in a way that steers clear of criminal

sanction.

2. Similarly, Peace Appeal Foundation

(PAF) engages with all parties to violent conflicts to

help them design and implement dialogue and

negotiation support’ structures that underlie

peacemaking efforts. PAF also conducts research;

analyzes the parties’ positions and areas of common

ground; and then makes that information available

to all parties — sometimes through collaborative, but

confidential, computer networks - in order to equip

stakeholders with information necessary to engage in

16

meaningful dialogue. PAF has found that providing

this kind of platform for dialogue is a critical element

of establishing relationships and building trust

among antagonists for the purpose of ending

violence.

PAF has engaged in this kind of work where

parties to a conflict include groups that have been or

may in the future be designated as FTOs. For

example, in Sri Lanka PAF established a confidential

dialogue process called the One Text Initiative

(which was supported by funding from USAID),

through which all parties to the violence in Sri

Lanka communicated. When the LTTE (otherwise

known as the Tamil Tigers) assigned a proxy

representative to participate in the One Text

Initiative, however, U.S. support for the process was

called into question and ultimately withdrawn,

dealing a severe blow to the effectiveness of the talks

among all parties. PAF and its partners were forced

to restructure their activities due to fear of potential

liability under the material support statute. In

Nepal, PAF helped establish the Nepal Transitions

to Peace Initiative, which involved creating a

physical space where stakeholders from Nepal's

political parties meet regularly in support of the

peace process to resolve Nepal's violent conflict. This

initiative required PAF to engage directly wath the

CPN-Maoists. The Maoists’ participation was vital;

because they controlled half of Nepal's territory, no

peace-building imitiatiwe could have plausibly

succeeded if they were excluded.

These activities are solely intended to promote

peace, not terrorism. However, it is unclear whether

17

equipping parties to violent conflicts with tools to

facilitate peace, or providing them with advice and

technical assistance to this end, might be construed

as prohibited services or expert advice or assistance

derived from specialized or technical knowledge.

3. CPT also occasionally serves as a

mediator in violent conflicts. For example, in 1990,

CPT provided assistance to members of the Mohawk

nation during the “Oka Crisis.” Oka is a town in

Quebec, Canada. What began as a peaceful protest

of plans to expand a golf course on land the Mohawks

considered sacred soon escalated into a months-long,

occasionally violent standoff between Mohawk

protesters, some armed, and Canadian police and

soldiers. At the request of the Mohawk protesters,

CPT went behind the lines to mediate a peaceful

solution. CPT’s aim was to help bring the standoff to

a speedy and peaceful end. Had CPT provides these

same mediation services to a designated

organization, however, it 1s unclear whether these

activities would constitute a prohibited service, or

expert advice or assistance derived from specialized

knowledge.

C. Advocacy Durected at Violent Actors

Some @mict emgage in human rights, rule of

law, and peace advocacy activities directed

specifically towards violent actors. This adwocacy

aims to pe®suade groups to cease huiman rights

violations, comply with international laws, eject

violence, and pursue their ends through peaceful and

legal meas. Nothimg implheates the First

Amendment more directly than advocacy. See supra

18

12 n.2. Section 2339B’s vague terms, however, leave

amici foundering to determine whether their

advocacy activities are permissible.

1. The Carter Center, for example, engages

in democracy and_ election-related advocacy,

sometimes with groups that engage in violence but

also hold considerable, and formal, political power.

Through its Democracy Program, the Carter Center

has conducted election monitoring in 30 countries,

with the consent or at the request of all major parties

to an election. Before an election, Carter Center

teams monitor the registration and campaign

process, meet with elected officials and party leaders

to discuss any problems, and advise officials how to

ensure fair and impartial electoral procedures;

oceasionally, the Carter Center will mediate clection

disputes. On election day, Carter Center observers

track every stage of the process from the opening of

polling places to ballot counting; throughout the day,

observers will speak with polling site officials and

citizens who have encountered problems. Where

wregularities occur, Carter Center teams continue

their dialogue with government and party officials to

advise them about potential improvements for future

elections, mediate amy remaining disputes, and,

where applicable, help facilitate the peaceful transfer

of power. tm 2009, Carter Center teams observed

electsons in Lebanon. In 1996, 2005, and 2006,

Carter Center teams observed elections in the

Palestinian Territones. In both Lebanon and the

Palestinian Territories, President Carter himself led

the observation missions. In the course of their

election monitoring activities, observer teams will

occasionally meet with members of Hezbollah’s or

Hamas’ political wing — both of which have members

who are elected representatives and, _ thus,

participate directly in the electoral process.

This advocacy and advising activity is

intended to ensure fair elections that represent the

true will of the people. It is unclear, however,

whether this activity might be construed as

prohibited expert advice derived from specialized or

technical knowledge.

2. Human Rights Watch (HRW) investigates

human rights abuses in the field, documents its

findings in human rights reports, and advocates with

the perpetrators cf those abuses to cease their

unlawful actions. HRW also advises governments

and non-state actors on their legal obligations under

international law, and lobbies them to comply with

those obligations. Over the years, HRW has put

considerable effort into documenting human rights

violamens committed by militant groups, some of

which awe been’ designated as_ terrorist

organizations by the United States. For example,

HRW has extensively documented human rights

vielations committed by the FARC, ELN, Hamas,

Heebollah, and the LTTE.® As part of their advocacy,

' See, eg., Muman Rights Watch, Trapped and Mistreated:

LTTE Abuses agaimst Civilians in the Vanni (Dec. 2008):

Human Rights Watch, Civilians under Assault Hezboliah’s

Rocket Attacks on Israel in the 2006 War (Aug. 2007); Human

Raghts Watch, living in Fear: Child Soldiers and the Tamil

Tigers in Sri Lanka (Nov. 2004); Human Rights Watch, “You 7/

learn Not To Cry": Child Combatants in Colombia (Sept. 2003),

Human Rights Watch, Frased in a Moment: Suicide Bombing

Attacks Against Israeli Civilians (Oct. 2002): Human Rights

HRW staff members have met with senior officials of

these groups about their human rights violations. In

meetings like this, in addition to urging the groups to

cease their abusive practices, HRW may also educate

them on their specific obligations under international

human rights and humanitarian law and advise

them on the particular steps the groups must take to

bring their actions into compliance with the law.

All of this activity, of course, is intended to

further human rights, not terrorism. It is unclear,

however, whether any aspect of the communication

of practical advice or legal expertise that occurs in

these kinds of meetings might be construed as

prohibited expert advice derived from specialized

knowledge. The statute fails to provide any guidance

whether sharing expertise on international human

rights law might be construed as_ specialized

knowledge (which is_ prohibited) or general

knowledge (which is permitted).

3. International Crisis Group (ICG), as part

of its conflict analysis, prevention, and resolution

work, also engages in advocacy with both violent

non-state actors and governments engaged in or

supporting violent hostilities. ICG issues detailed

analyses of existing or emerging conflicts, and makes

specific recommendations that non-state actors or

governments should adopt to prevent further

violence. ICG may then meet with the relevant

parties to urge them to adopt [CG’s recommended

actions. In the course of such meetings, ICG might

Warch, Beyond Negotiatwn,: International Humanitarian Law

and its Applecatwon to the Conduct of the FARC-EP (Aug. 2001).

explain to the participants their obligations under

international law or international agreements, and

might provide advice as to how participants can

adopt ICG’s recommendations im practice.

This kind of advocacy and dialogue is intended

to further peace and compliance with international

law, not terrorism. If it were to occur with a group

that is or may in the future be designated, however,

it is unclear whether some aspects of this crisis

resolution activity might be construed as prohibited

expert advice derived from specialized knowledge.

4. Similarly, the Carter Center, as part of

its human rights monitoring activity in conflict

zones, engages in advocacy meetings with political

leaders of, among other groups, Hamas and

Hezbollah. Like HRW, the Carter Center advocates

for the cessation of human rights abuses, and may, in

the process, share its expertise on international law

and suggest ways to comply with the law. This

advocacy is intended to further human rights, not

terrorism. Again, it is unclear, however, whether the

aspects of this advocacy that involve the sharing of

knowledge and expertise might be construed as

prohibited expert advice derived from specialized

knowledge.

5. In its efforts to advocate for peaceful

resolution of the Israeli/Palestinian conflict, and as

part of its work in the West Bank, CPT often meets

with local town councils and local government

officials, and attends town meetings, to discuss the

benefits of non-violence and advise on ending the

conflict. CPT also arranges for delegations of non-

violent peace groups from around the world to visit

22

the West Bank; occasionally, these delegations meet

with local officials. Some of the elected officials with

whom CPT and its delegations meet are members of

Hamas’ political wing.

These meetings are intended to advocate for

peace, not to further terrorism. It is unclear,

however, whether any of this advocacy might be

construed as expert advice derived from specialized

knowledge or whether having delegations meet with

these officials might be construed as a prohibited

service.

.6. CPT also engages armed actors in one-on-

one efforts to convince them to renounce violence.

When CPT staff encounters individuals on the street,

in villages, or on the farms they visit as they travel

throughout Colombia, Iraq, or the West Bank, and

when they believe an individual might be affiliated

with -paramilitaries, civilian armed militias, or a

rebel group, CPT staff discuss the benefits of

nonviolence and advise them to cease their violent

activitics and to stop threatening local populations.

This personalized, face-to-face advocacy is

intended to promote peace, not terrorism. To the

extent that any of these individuals are known or

suspected to be members of proscribed groups,

however, it is unclear whether CPT’s provision of

advice and teaching could be _ perceived as

constituting prohibited expert advice, training, or a

service.

23

D. Independent Advocacy That Could Be

——<———<$—

Perceived as “For the Benefit of’ Others

Some amici also engage in advocacy activities

that might be construed as providing a “service,”

insofar as the activities could be perceived as done

“for the benefit of’ a designated group or its

members.

1. Christian Peacemaker teams in Iraq, for

example, engaged in significant advocacy on behalf of

individuals detained by the U.S. government at Abu

Ghraib prison in the early years of the Iraq war. At

the request of family members of individuals whose

loved ones had disappeared, presumably into U.S.

custody, CPT routinely sought information about

prisoners’ whereabouts from the Iraqi Assistance

Center, and lodged complaints about abuse of

particular prisoners. Some of the detainees on whose

behalf CPT advocated may have been members of

designated groups.

CPT’s advocacy was intended to promote and

enforce the rule of law, not terrorism. It is unclear,

however, whether CPT’s advocacy on behalf of

particular individuals could have been construed as a

prohibited service or the prohibited provision of

personnel.

2. CPT also engages in extensive advocacy

to call attention to the plight of civilian victims of a

violent conflict between Turkey and Kurdish

separatists who reside in Northern Iraq. In the

course of that work, CPT visits refugee camps to

discuss with refugees, some of whom reside in what

are unofficially considered “PKK” camps, non-violent

24

ways to end the conflict. CPT will sometimes help

call attention to non-violent protest activities in the

region. For example, CPT recently called attention

to a peaceful march planned by Kurdish refugees.

The march reportedly included some members or

supporters of the PKK. The group marched from the

refugee camp in Iraq to the Turkish border and

offered peace to the Turkish government. In its

advocacy, CPT has also called attention to a recent

and under-reported PKK cease-fire. Although CPT is

engaged in independent advocacy, it is unclear

whether some of this activity could be wrongly

perceived as prohibited service done “for the benefit

of” the PKK.

3. Similarly, the Carter Center, in its

advocacy efforts to achieve peace between

Palestinians and Israelis, publicly calls for inclusion

of Hamas in peace talks because Hamas represents a

sizeable portion of the population and the Carter

Center believes that true peace is not achievable

without their active participation. The Carter

Center’s advocacy in this regard is intended to

ensure an effective peace process and is wholly

independent of Hamas. Nonetheless, it is unclear

whether even this type of advocacy could be viewed

as a prohibited service because it could be construed

as action taken “for the benefit of’ Hamas as Hamas

would presumably derive some benefit from inclusion

in the peace process.

E. Humanitarian Aid

Provision of humanitarian aid often requires

working with and providing expert advice and

technical assistance to local actors. Each of the

29

amict that provide humanitarian aid adhere strictly

to certain universal principles of humanitarian

assistance. These principles require all providers of

aid to draw sharp lines between humanitarian

activities, which they support, and _ military

activities, which they do not. However, in the

context of war zones, particularly in geographic areas

controlled or dominated by designated groups, some

form of engagement with these groups, their

members, or their supporters is sometimes

inevitable. When amici provide instruction or

guidance to local groups to further humanitarian aid

operations, they engage in First Amendment-

protected activity. See supra 12n.2. The challenged

provisions of § 2339B, however, do not clearly

delineate the space available for amici to conduct on-

the-ground humanitarian aid activities.

1. For example, Operation USA engaged in

significant disaster relief and rebuilding efforts in Sri

Lanka after a tsunami devastated wide swaths of the

country in 2004. The north and east of the country —

Tamil areas largely controlled by the rebel group

LTTE until their defeat in May 2009 — were

particularly affected. Operation USA partnered with

local NGOs to rebuild Kallady, a fishing village on

the east coast of Sri Lanka where homes and

infrastructure had been entirely destroyed by the

tsunami. By 2006, Operation USA had completed its

work overseeing the rebuilding of 163 homes, a

health center, a community center, a primary school,

and a pre-school. As a part. of this work, Operation

USA provided significant amounts of advice and

assistance to local actors regarding reconstruction

26

plans and the rebuilding process itself, including

technical medical, water, sanitation, hydrology, and

education expertise.

One of Operation USA’s many local partners

was a local Tamil relief organization that had been

granted legal status (and even given awards) by the

Sri Lankan government. In 2007 (long after

Operation USA’s work in Kallady was completed),

however, a new Sri Lankan administration decided

the relief organization was affiliated with the LTTE

and shut it down. The U.S. Treasury Department

subsequently designated the organization.

Operation USA no longer works with this particular

organization, which is now defunct.

None of Operation U.S.A.'s provision of advice

or technical assistance was in any way intended to

support terrorism or violence perpetrated by the

LTTE; it was intended to alleviate the suffering of

Tamil civilians. Had the Tamil relief organization

been designated at the time, however, it is unclear

whether the kind of expert and technical rebuilding

assistance Operation USA provided might be

construed as prohibited expert advice or assistance

derived from specialized, technical, or even scientific

knowledge, or might be construed as a prohibited

service or training.

2. Others working in Sri Lanka following

the tsunami faced even more acute dilemmas. A

huge number of tsunami victims lived in territory

then controlled by the LTTE. A number of doctors

and public health professionals who went to Sri

Lanka in the immediate aftermath of the crisis had

to decide whether providing critical public health

information to the people running the refugee camps

would be illegal if the recipients of that information

were LTTE medical officials. As a result of the

material support laws, some doctors who would

otherwise have provided such assistance were

deterred from doing so. See Gady A. Epstein,

Maryland MD Struggles for Tamil Patients, Balt.

Sun, Jan. 23, 2005; Ahilan T. Arulanantham,

Testimony at Oversight Hearing on Amendments to

the Material Support for Terrorism Laws: Section 805

of the USA PATRIOT Act and Section 6603 of the

Intelligence Reform and Terrorism Prevention Act of

2004, Before the Subcommittee on Crime, Terrorism

and Homeland Security of the House Judiciary (May

10, 2005).4

None of the work described above was

intended — in any conceivable way — to further

terrorism. It is intended to reduce it or end it

altogether. Nonetheless, plaintiffs, amici, and others

who engage in similar missions are left guessing

which aspects of their work remain permissible and

which may be prohibited. Especially where a

criminal statute’ potentially reaches’. clearly

established First Amendment interests, the

Constitution does not permit such _ profound

uncertainty. The potential impact of the statute on

amici reinforces plaitiffs’ central claim that the

challenged provisions of

§ 2339B are unconstitutionally vague as applied to

plaintiffs’ humanitarian activities.

4 The transcript 1s available at http://www.aclu.org/national-

security/aclu-testimony-material-support-terrorism-laws-

section-805-patriot-act-and-section.

28

Il. TO THE EXTENT THAT THE STATUTE

DOES PUNISH SPEECH AND

ADVOCACY INTENDED TO FURTHER

LAWFUL ACTIVITY, THE STATUTE

VIOLATES THE FIRST AMENDMENT

To the extent that the vague terms in § 2339B

apply to the kinds of First Amendment-protected

activities engaged in by groups like amici or

plaintiffs, those provisions violate the _ First

Amendment. As construed by the government, the

material support statute proscribes speech that is

intended to further only lawful, non-violent activity.

It also impermissibly punishes association intended

to dissuade an organization from engaging in

unlawful activity. It is axiomatic, however, that the

government cannot sanction advocacy unless it

incites imminent lawless activity. Likewise, well-

established First and Fifth Amendment principles

prohibit the government from punishing association

with a group that engages in illegal activity unless

the association is intended to further the group’s

illegal aims. The material support statute, as

construed by the government, offends both of these

principles. In doing so, it threatens the speech and

association of internationally recognized

organizations whose mission is to promote peace and

humanitarian ends rather than violence.5

5 Amici also agree with plaintiffs that the challenged provisions

violate the First Amendment to the extent that they impose a

complete ban on pure political speech and discriminate on the

basis of the content of speech without being narrowly tailored to

a compelling government interest.

29

A. The Government May Not Punish Speech

Based On Fear Of A Third-Party’s Potential

Unlawful Conduct Unless The Speaker

Intends To Incite Imminent Unlawful

Amici’s humanitarian, human rights, and

peace-promoting work is quintessential speech and

advocacy for First Amendment purposes. See supra

at 12 n.2. There is no question that the First

Amendment protects “vigorous advocacy,” NAACP v.

Button, 371 U.S. 415, 429 (1963), as well as the free

discussion of “public questions,” N.Y. Times ov.

Sullivan, 376 U.S. 254, 269 (1964).

The First Amendment generally does not

permit the government to punish otherwise protected

speech solely because it wants to punish or deter

conduct by the listener or recipient of speech. “The

normal method of deterring unlawful conduct is to

impose an appropriate punishment on the person

who engages in it... . [I]t would be quite remarkable

to hold that speech by a law-abiding possessor of

information can be suppressed in order to deter

conduct by a non-law-abiding third party.” Bartnicki

v. Vopper, 532 U.S. 514, 529-30 (2001); see also Cox v.

State of La. 379 U.S. 536, 550-51 (1965) (rejecting

notion that peaceful protest activity could be

prohibited for fear it would provoke violence from

others).

Indeed, the First Amendment sets a very high

bar for restrictions on speech based solely on fear of

illegal activity perpetrated by the recipients of

30

speech. Even where the speaker himself advocates

violent or unlawful conduct, the Court has held that

speech may not be suppressed “except where such

advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or

produce such action.” Brandenburg v. Ohuo, 395 U.S.

444, 447 (1969); cf. Virginia v. Black, 538 U.S. 343,

363 (2003) (upholding Virginia’ cross-burning

regulation because it is a “form of intimidation” that

tends to signal “impending violence” but striking

down provision creating presumption that cross-

burning is intended to promote violence). Thus, even

speech that is supportive of violent or illegal action is

fully protected — and cannot be proscribed — unless it

reaches the line of incitement.

Here, by contrast, amici — like plaintiffs — face

the threat of prosecution for engaging in speech

designed to counteract violence. As described above,

amici’s work includes human rights advocacy, see

supra 18-25; promotion and facilitation of democratic

practices, see supra 18; direct intervention aimed at

resolution of violent conflicts, see supra 12-18; and

expressive activity that furthers the provision of

humanitarian aid, see supra 26-27. Such activities

lie far beyond the narrow bounds of proscribable

speech contemplated in Brandenburg. See NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 929 (1982)

(“[when an advocate’s] appeals do not incite lawless

action, they must be regarded as protected speech’).

There is no question that amici’s peaceful

speech and advocacy could not be proscribed if it

were directed at Congress, The New York Times

editorial board, or another human rights or peace

31

group. The only thing that distinguishes amici’s

otherwise protected speech is that it is provided to or

directed at groups that may engage in unlawful

conduct. But this alone does not render the speech

unprotected. If a U.S. human rights organization

issues a report that documents the LTTE’s use of

child soldiers, condemns the practice, lists a set of

concrete recommendations it believes the LTTE

should adopt to cease the abuse, and provides specific

advice as to how the LTTE should implement the

recommendations in practice, there is surely no

doubt that this activity is fully protected by the First

Amendment. The mere fact that it is communicated

to the LTTE (an entity engaged in some illegal

conduct) rather than The New York Times editorial

board cannot remove this kind of peaceful speech and

advocacy from constitutional protection.

Nor does constitutional protection vanish

simply because amici choose to engage violent actors

directly in face-to-face discussion rather than

advocate from afar through the written word. It

makes no difference — as a First Amendment matter

— whether the human rights group described above

presents its advocacy in person or in writing. See

City of Struthers, 319 U.S. at 141-42 (recognizing

“freedom to distribute information” and advocate

through variety of means, including face-to-face, at

meetings, or through leaflets); Lovell vu. City of

Griffin, Ga., 303 U.S. 444, 452 (1938) (same);

Thomas v. Collins, 323 U.S. 516, 537 (1945) (myriad

forms of advocacy “to persuade to action” protected

by the First Amendment); see also De Jonge v. State

of Or., 299 U.S. 353 (1937) (finding, in the context of

32

Communist Party meetings, that “(t]he holding of

meetings for peaceable political action cannot be

proscribed” and “{t}hose who assist in the conduct of

such meetings cannot be branded as criminals on

that score”).

If the government is concerned that speech

directed at terrorist organizations will incite them

(or others) to imminent lawless action, or if the

government fears a speaker is conspiring to commit

crime, it can punish that speech. The material

support statute, however, sweeps much more

broadly. It impermissibly suppresses speech that not

only falls far short of incitement but is actually

aimed at promoting peace and human rights, based

solely on the fact that the recipient may engage in

unlawful conduct unrelated to the speech provided.

Cf. Ashcroft v. Free Speech Coal., 535 U.S. 234, 253-

254 (2002) (striking down ban on virtual child

pornography, because the statute did not punish

“attempt, incitement, solicitation, or conspiracy” and

holding that the government could not “prohibit

speech on the ground that it may encourage

pedophiles to engage in illegal conduct”). As

construed by the government, the broad sweep of §

2339B thus “impermissibly intrudes upon the

freedoms guaranteed by the First Amendment.”

Brandenburg, 395 U.S. at 448.

B. This Constitutional Violation Cannot Be

Cured Simply By Making It Contingent On

Association With A Designated Group

Implicit in the government’s arguments below

was the proposition that expressive activity that

33

would otherwise be protected by the _ First

Amendment becomes unprotected when engaged in

with a group that the executive branch has

designated. Under this Court’s well-established

precedents, however, association with a group that

engages in unlawful activity cannot be punished

unless it is intended to further the group’s unlawful

aims. Hinging application of the statute on a

disfavored association only compounds __ the

constitutional problem by layering an impermissible

restriction on the right to association upon an

impermissible restriction on speech. “For liability to

be imposed by reason of association alone, it is

necessary to establish that the group itself possessed

unlawful goals and that the individual held a specific

intent to further those illegal aims.” Claiborne

Hardware, 458 U.S. at 920.6

The material support statute, however,

punishes speech “by reason of association alone,”

whether or not it is intended to further a designated

group’s unlawful aims. Indeed, it subjects speakers

6 This principle has dual constitutional origins. In addition to

the associational freedoms protected by the First Amendment,

the Fifth Amendment's guarantee of due process mandates

that, in criminal law, “guilt is personal,” and that association

with a group engaging in unlawful conduct may impute

criminal lability only when an individual possesses “a guilty

knowledge and intent,” but not on the basis of “merely an

expression of sympathy with the alleged criminal enterprise,

unaccompanied by any significant action in its support or any

commitment to undertake such action.” Scales v. United States,

367 U.S. 203, 224, 228 (1961). Amici agree with plaintiffs that

the material support statute violates the Fifth Amendment

personal guilt requirement as well.

34

to severe criminal penalties even if they vehemently

oppose the group’s unlawful ends and speak and

associate with the group in order to convince it to

cease its illegal activities. While the Constitution

does not immunize direct participation in violence,

“it is a different matter” when, instead of prosecuting

that violence directly, the government “seizes upon

mere participation ina... lawful .. . discussion as

the basis for a criminal charge.” De Jonge, 299 U.S.

at 365; See also Healy v. James, 408 U.S. 169, 185-86

(1972). By “establish[ing] guilt by association alone,”

without any need to show an intent to further an

FTO’s unlawful conduct, § 2339B impermissibly

imposes “[an] inhibiting effect on the exercise of First

Amendment rights.” United States v. Robel, 389 U.S.

258, 265 (1967).

The Court’s opinion in Claiborne Hardware

provides useful guidance. In that case, the

Mississippi Supreme Court had held jointly and

severally liable the NAACP and several dozen

individuals who had supported a boycott designed to

combat pervasive racial discrimination, because

some small number of boycott-supporters had

engaged in violence. Claiborne Hardware, 458 U.S.

at 889-96. In reversing that decision, the Court

found that the imposition of such blanket lability

infringed upon the right to associate guaranteed by

the Constitution. The Court’s analysis proceeded

from the premise that the boycott was composed

mainly of “speech or conduct that is ordinarily

entitled to protection under the First and Fourteenth

Amendments.” Jd. at 907. Measured against those

core constitutional freedoms, the state’s authority to

35

regulate the economic sphere — though far from

trivial — could not justify suppression of the

nonviolent, First Amendment-protected elements of

the boycott. Jd. at 914-915. The Court explained

that, while nothing prevented a state from using tort

liability to combat business losses caused by violence,

“[w]hen such conduct occurs in the context of

constitutionally protected activity . . . ‘precision of

regulation is demanded.” Td. at 916 (quoting

NAACP, 371 U.S. at 438). To satisfy that demand,

the Court ruled, a showing of specific intent to

further violence is a necessary ingredient of liability

predicated on association with a group which

includes some members engaged in violent acts. Id.

at 920.

Amici and plaintiffs, lke the majority of

boycotters in Claiborne Hardware, pursuc their

objectives through nonviolent advocacy and

expression lying at the core of the First Amendment's

domain. Just as the boycotters in Claiborne

Hardware faced massive liability for engaging in

protected conduct deemed tainted by the violent

conduct of third parties, amici and plaintiffs face the

risk of serious criminal liability for engaging in

otherwise protected, non-violent, First Amendment

activity with groups that may be engaged in violence.

And just as the boycotters set out to employ

protected First Amendment freedoms in the service

of social justice — “[t]hrough speech, assembly, and

petition — rather than through riot or revolution,” id.

at 912 — amici and plaintiffs try to achieve change by

fostering peace, furthering human rights, and

alleviating human suffering.

36

Amict do not question the government's

compelling interest in combating terrorism, or its

interest in stemming support that furthers unlawful,

violent acts. But the Constitution requires a

“precision of regulation” in pursuing that mission:

the government must_ distinguish between

confederates of criminal groups who seek to facilitate

the group’s unlawful aims, and individuals whose

legitimate First Amendment expression and

advocacy brings them into association with

designated groups. To the extent that § 2339B would

collapse that distinction, it cannot withstand

constitutional scrutiny. While national security is

undoubtedly a compelling state interest, the

government has not shown that criminalizing pure

political speech advocating peaceful, lawful aims is

necessary to further that interest.

37

CONCLUSION

For the reasons stated above, the Court

should affirm the court of appeals’ judgment with

respect to the provisions it held unconstitutionally

vague as applied to plaintiffs’ speech and reverse the

court's judgment with respect to the provisions it

upheld.

Respectfully submitted,

Melissa Goodman

Counsel of Record

Steven R. Shapiro

Jameel Jaffer

Laurence M. Schwartztol

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

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