Amicus Curiae Brief — Holder v. Humanitarian Law Project

AC

(4) 6) NOV 23 2009

98 and }9-89__

Nos. 0& OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

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

Petitioners,

Vv

HUMANITARIAN LAW PROJECT, ET AL.,

Respondents.

HUMANITARIAN LAW PROJECT, ET AL.,

Cross-Petitioners,

We

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 OF AMICI CURIAE

VICTIMS OF THE MCCARTHY ERA,

IN SUPPORT OF HUMANITARIAN LAW

PROJECT, ET AL.

Stephen F. Rohde John A. Freedman Ps

Rohde & Victoroff (Counsel of Record) ALY n*

1880 Century Park East Jonathan S. Martel a

Suite 411 Jeremy C. Karpatkin

Los Angeles, CA 90067 _Bassel C. Korkor

(310) 277-1482 Sara K. Pildis

ARNOLD & PORTER LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Attorneys tor Amici Curiae

w A

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

4

[T.

-i-

TABLE OF CONTENTS

Americans Paid a Heavy Price For

McCarthy Era Penalties on Speech and

Ie

The Supreme Court in the 1950s and

1960s Rejected McCarthy Era ‘Guilt by

Association’ Statutes as Impermissible......

A. AEDPA Penalizes the Relationship

Between an Individual and a

Designated Organization, in

Violation of the Freedom of

fC SSPE eee ee

1. Congress Cannot Impose a

“Blanket Prohibition” on

Association With Groups Having

Legal and Illegal Aims....................

2. The Government Must Prove

that Individuals Intend to

Further the Illegal Aims of an

ed inniicnsccieenesakeseatuante

COR ee eee ee

eee eeeeee

eeeeeeeee

o il e

B. Like McCarthy Era Statutes,

AEDPA Makes Constitutionally

Protected Speech a Crime and is

Unconstitutionally Vague, Chilling

Pe aiaibeiditianndcibiednenpinimpaisicnnantisudngniniinits 14

1. AEDPA Unconstitutionally

Penalizes Protected Speech in

the Same Manner as McCarthy

AE ATE BN BAS AINE ERO i RO 14

2. AEDPA Chills Protected Speech .......... 17

C. National Security Concerns Cannot

Justify Infringements on Freedom of

ITE ccsddssc a tidbgnssceebooonubaecobiouievonieoee 20

ST TT Ae 23

APPENDIX: AMICI CURIAE.................ssccccccsoesseees Al

‘_*

TABLE OF AUTHORITIES

Page(s)

Cases

Adler v. Board of Education of City of New

PI, Se i GI I cccitirsccccsassesasesccsecsceenses Al

Brandenburg v. Ohio, 395 U.S. 444 (1969) .............. 14

Connally v. Gen. Constr. Co., 269 U.S. 385

a AN ARE ec ENE Net eR MER i 17

De Jonge v. Oregon, 299 U.S. 353 (1937)................ 16

Dennis v. United States, 341 U.S. 494

bad a SAE Eerste dit 8a. Al tO 15

Elfbrandt v. Russell, 384 U.S. 11 (1966)............ 11,13

Hirabayashi v. United States, 320 U.S. 81

SEITE ascii ccielestabacadaagadoaanmaaiimnamnaieiniedadbelghincnnianhs 21

Hirabayashi v. United States, 828 F.2d

I, a ss ciedatineniaeiiduotaed 21

Keyishian v. Bd. of Regents of the Univ. of

the State of New York, 385 U.S. 589

REDRESS Rae aE a eRe IeE passim

Lamont v. Postmaster General of the

United States, 381 U.S. 301 (1965)..........0..008. All

NAACP v. Button, 371 U.S. 415 (1963).........0.... 17,18

-liv-

NAACP v. Claiborne Hardware Co., 458

EAE TN 13, 16

Noto v. United States, 367 U.S. 290 (1961) ....... 10, 12

Raley v. State of Ohio, 360 U.S. 423

ee A7

Scales v. United States, 367 U.S. 203

Ti cdaans passim

Stromberg v California, 283 U.S. 359

I a sestanntciupiosoniy A3

Stamler v. Willis, 287 F. Supp.734 (N.D.

NER SIRES a AQ

United States v. Robel, 389 U.S. 258

AAR REECE NC EE aC ne passim

Whitney v. California, 274 U.S. 357 (1927) .......0..... 15

Yates v. United States, 354 U.S. 298

ER AAD, eNO OTe See 14, A9

Yellin v. U.S., 374 U.S. 109 (1963) 0.0.0.0... A7

Statutes

Se TT 6

Effective Death Penalty Act of 1996

(AEDPA), 8 U.S.C. § 1188 ............cccccc00...000000. 2,16

-y-

Effective Death Penalty Act of 1996

(AEDPA), 8 U.S.C. § 2339B...cccccccccccecscsseeeseeee. 2,16

N.Y. Civ. SERV. LAW § 105 (1958) ............cccc:ceeeeseeeees 16

N.Y. EDUC. LAW § 3021 (1947).............:ccceeeeseeeees 16, 17

N.Y. Epuc. LAW § 3022 (19538)....................ccece0. 16, 17

OHIO REV. CODE ANN. § 2923.13 (2004)...............0008. 15

Other Authorities

Br. of Appellant United States, 1966

Westlaw 100448, United States v.

Robel, 389 U.S. 258 (1967) ...............0665. 14, 20, 21

Commager, Freedom and Order: A

Commentary on the American Political

Romane FO O6 Ce wenssstes<incnitonmaniatinnianinaaicanaa 8

Exec. Order No. 10450 (Apr. 27, 1953)..............ccccc0ees 7

Exec. Order No. 9,835 (Mar. 21, 1947).........c.::cceccees 6

Petition for Writ of Certiorart..........000cccccccccceseeeeeceees 19

Schrecker, Ellen, Many Are the Crimes:

McCarthyism in America (1998) ................. passim

Stone, Geoffrey, Perilous Times: Free

Speech in Wartime, from the Sedition

Act of 1798 to the War on Terrorism

I cencasencannseiecnsasssnedansedsiibaniomiaaaaamenaaaannnane 5, 8

-vil-

Stone, Geoffrey, Free Speech in the Age of

McCarthy: A Cautionary Tale, 93 CAL.

I I a cc ccnnccccersecescnssvsceseesecsoacseses 6, 7

~]

INTEREST OF AMICI CURIAE

Amici are 32 individuals and the close family

members of individuals who were subject to criminal

penalties, a “blacklist” that precluded them from

employment in their professions, or other

governmental and social sanctions during the “Red

Scare” from the 1930s to the 1960s, and especially

during the “McCarthy Era” of the 1950s. They were

punished for their lawful activity in or association

with organizations the government labeled as

subversive. Some Amici were punished, and even

imprisoned, for refusing to testify before

congressional committees. Some lost their jobs for

failure to testify before state investigative bodies.

Some were unable to find work in their field for

years. Some left the country because they could not

find work or because they feared prosecution. In

many cases, the persecution included harassment of

the family members and children of the targeted

individuals. Amici have a strong interest in

ensuring that these excesses are not repeated, that

political speech is not quashed, and that dissenting

individual views and associations are protected.

Their stories are described in the Appendix to this

Brief.'

! Counsel for a party did not author this brief in whole or in

part, and no person or entity, other than the amici curiac or

counsel, have made a monetary contribution to the preparation

or submission of the brief. Pursuant to Rule 37 of the Rules of

the Supreme Court, the parties have consented to the filing of

this brief, and copies of the consents have been filed with the

Clerk of the Court.

e 2 °

SUMMARY OF ARGUMENT

Sections 302 and 303 of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 8

U.S.C. §§ 1189 and 2339B, recreate the kind of

criminal penalties for free speech and association

that Amici and their families unjustly suffered more

than fifty years ago. AEDPA authorizes the

Secretary of State to designate “foreign terrorist

organizations,’ and makes it a crime to provide

certain statutorily defined “material support” for

even the nonviolent and humanitarian activities of

such groups. Jd. Similar to the Smith Act and

federal executive orders in the 1940s and 50s,

AEDPA grants the Executive Branch unreviewable

discretion to designate groups as “terrorist.” AEDPA

further creates vague bans on providing “expert

advice or assistance,” “training,” “service,” or

“personnel” to designated groups. It threatens once

again unconstitutionally to interfere with the rights

of free speech and association.

AEDPA’s vague ban on “assistance” and

“advice” is essentially no different from the

McCarthy Era attempt to root out association with

and advocacy for groups unpopular with the

government. Starting in the 1930s, and through the

1960s, Congress and the Executive Branch identified

organizations -- the Communist Party and groups

identified as having ties to the Communist Party --

as using illegal means, including terrorism, with the

aim of overthrowing the United States Government

by force and violence. The Smith Act and the

Subversive Activities Control Act made it a crime to

associate with these designated groups or to speak in

support of these groups. These were crimes

-3-

regardless of whether or not that speech or

association supported or furthered the group’s

unlawful activities.

Our society now recognizes that the McCarthy

Era was a shameful episode in American history,

characterized by widespread abuses of executive and

legislative power and fueled by demagoguery and

overzealous government action, ultimately

encompassing “loyalty” investigations of over four

million American citizens. See, eg. Ellen

Schrecker, Many Are the Crimes: McCarthyism in

America (1998), at x (The McCarthy Era is “the most

widespread and longest lasting period of political

repression in American history.”).

While few individuals were _ ultimately

prosecuted under the McCarthy Era laws, thousands

were persecuted. Among the latter, larger group

were Amici and their relatives, none of whom

intended to or actually did engage in violence

against this country. Nonetheless, they were

investigated, libeled, terminated from and unable to

secure employment, blacklisted, prosecuted, and

imprisoned. One of the key lessons from this era is

that when the federal government fans the flames of

public passion by enacting overreaching criminal

statutes, staging congressional hearings, and

investigating the loyalty of millions of American

citizens, it implicitly condones and_ sanctions

retributions against individuals, such as Amici.

Eventually, our society and this Court understood

that these consequences were unacceptable. We

should not make these mistakes again.

-4>-

It is against this background that this Court

issued the decisions that are the controlling law that

governs this case. In a series of landmark First

Amendment decisions, this Court struck down these

statutes, restored freedom of speech and halted guilt

by association. This Court concluded that the

congressional and executive branch excesses were

unconstitutional. The Court held that punishing

speech without showing incitement to crime and

punishing association without showing specific

intent to further illegal ends penalizes innocents and

chills the political freedoms at the very core of our

democracy.

These principles are equally applicable today,

where the federal government (once again) has

designated certain organizations as proscribed and

purports to make it a crime to speak for or otherwise

associate with such organizations. Now, when once

again our safety and security have been threatened,

this Court should reaffirm the rights to free speech

and association.

ARGUMENT

I. AMERICANS PAID A HEAVY PRICE FOR

MCCARTHY ERA PENALTIES ON SPEECH

AND ASSOCIATION.

In periods of serious external threats to our

Nation, the political branches of our government

have sought to root out and punish individuals and

organizations based on association with those

designated as enemies of the State, even if such

association was through constitutionally protected

speech and activities. See generally, Geoffrey R.

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Stone, Perilous Times: Free Speech in Wartime, from

the Sedition Act of 1798 to the War on Terrorism

(2004). Beginning after the Bolshevik Revolution of

1917 and the establishment of a communist

government in Russia, there was a period of fear and

paranoia in America that international communism

might destroy this country. In the 1950’s, Senator

Joseph McCarthy became among the most vocal and

visible proponents of government investigations into

individual citizens’ affiliations with, or sympathies

for, Communism. At the height of the McCarthy

Era, the House Committee on Un-American

Activities (“HUAC”) held hearings in which

individuals were publicly interrogated about their

mere association with, or speech in support of, an

organization identified as “Un-American.”

Amici personally paid the price for the

restrictions on freedom of speech and policies of

guilt-by-association during the McCarthy Era.

Individuals suffered greatly from “blacklists” that

arose out of such hearings: private businesses

(including the entertainment industry) and

government employers stopped employing and fired

individuals who government authorities identified as

linked to communists, and those who refused to

cooperate were jailed on charges of contempt. See

generally Schrecker, supra (1998). Those who were

blacklisted included renowned artists, performers,

and writers, including: amicus Irwin Corey, a well-

known comedian and film actor; amicus Clifford

Carpenter, a famous radio, television and film actor;

entertainer Lionel Stander, father of amicus Bella

Stander; composers E. Y. Harburg, step-father of

amicus Roderic Gorney, and Jay Gorney, father of

amicus Roderic Gorney and husband of amucus

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Sondra Gorney; screenwriter Robert Lees, father of

amicus Richard Lees; and actors John Randolph and

Sarah Cunningham, parents of amici Harrison

Randolph and Martha Eoline Randolph. Speech was

chilled as people feared government penalties that

led to social ostracization; at the height of the furor,

few dared to speak out against violations of civil

liberties. Jd.

Ill-conceived unconstitutional restrictions on

the freedoms of speech and association enacted to

protect against the evils of communism furthered

and legitimized this repression. The Smith Act

made it a crime to advocate, advise, teach, or publish

material espousing the “duty, necessity, desirability,

or propriety of overthrowing or destroying the

government of the United States ... by force or

violence,” and prohibited organizing any group that

teaches or advocates the “overthrow or destruction of

any such government by force or violence.” 18

U.S.C. § 2385. Significantly, the Smith Act even

made it a crime merely to become a member of, or

affiliated with, any such society or group. /d. The

Smith Act resulted in more than one hundred

prosecutions based on involvement with the

Communist Party, Stone, Geoffrey, "Free Speech in

the Age of McCarthy: A Cautionary Tale," 93 CAL L.

REV. 1387 (2006), including amicus Paul Harris’

uncle and Communist Party leader Fred Fine, whose

brother-in-law Sydney Harris was also blacklisted

and unable to find a job because he joined the

Communist Party after fighting in the Spanish Civil

War.

The federal government also issued executive

orders to crack down on communism during the

-7T-

McCarthy Era. On March 21, 1947, President Harry

Truman issued Executive Order 9,835, requiring

loyalty checks on federal employees. The Executive

Order authorized the Attorney General to designate

specific groups as “totalitarian, fascist, communist,

or subversive” or dedicated to “force or violence.”

Exec. Order No. 9,835 at III. The program

authorized government panels to _ investigate

employees for “membership in, affiliation with, or

sympathetic association with” any designated

organization, and to place such employees’ names on

a “master index,” and recommend them for dismissal

from employment. Exec. Order No. 9,835 at V.2.6.

The order afforded no individual or organization the

right to contest the designation and there was no

right to judicial review. By 1953, 254 organizations

were included on the “subversive list.” Stone, at 344.

The procedures developed under the Truman loyalty

program were the model for an expanded guilt-by-

association policy, and thus “became standard within

other federal agencies, state and local governments,

and private institutions.” Schrecker, at 274.

In 1953, President Eisenhower expanded the

standard of “disloyalty” under Truman’s program to

include “any behavior, activities or associations

which would tend to show that the individual is not

reliable or trustworthy.” Exec. Order No. 10450

(1953). “In their investigations of more than four

million federal civilian employees, the government’s

two hundred loyalty boards did not uncover a single

instance of actual espionage or _ subversive

malfeasance.” Stone, at 351. Historian Henry Steele

Commager described the loyalty program as “an

invitation to precisely that kind of witch-hunting

which is repugnant to our constitutional system.”

-8-

Commager, Freedom and Order: A Commentary on

the American Political Scene, 73-74 (1966). The

incitement and toleration of such _ personal

persecution based on association and speech cast a

chilling shadow on political discourse in America.?

The McCarthy Era spawned innumerable

tales of hardships suffered by “political innocents

whose jobs were lost and careers destroyed because

they inadvertently associated with groups on the

list.” Schrecker, at 276. By the mid-1950s, “[lloyalty

programs, emergency detention plans, undercover

surveillance, legislative investigations, and criminal

prosecutions of Communists swept the nation.”

Stone, at 313. “Some 11,000 Americans had been

fired for suspected ‘disloyalty, more than 100 had

been prosecuted under the Smith Act, and more than

130 had been jailed for . . . refusing to cooperate with

their interrogators.” Jd at 314.

Some courageous leaders -- including Corliss

Lamont (husband of amscus Beth Keehner Lamont),

——.

2 The men and women called to testify before congressional

committees had been among the most active and vocal

progressive individuals of that era.

The repression unleashed against them essentially

silenced their voices. They became preoccupied with

their own defense. Grappling with a loyalty-security

case, coping with unemployment, or fighting criminal

charges or deportation left little time or energy for

other political work. In addition, though these people

certainly cared about peace, unionization, and racial

equality, they feared that active involvement with

such causes might only lead to more harassment.

Schrecker, 367-68.

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who brought key cases to the Supreme Court; amicus

Yolanda “Bobby” Hall, who challenged _ the

constitutionality of HUAC and its subpoenas; and

amicus Ann Fagan Ginger, who successfully

contested a HUAC contempt citation -- emerged to

challenge the worst of the excesses. |

It is against this background that the

Supreme Court’s landmark First Amendment

decisions of the 1950s and 1960s restoring freedom

of speech and halting guilt by association should be

assessed and applied in this case.

Il. THE SUPREME COURT IN THE 1950s AND

1960s REJECTED MCCARTHY ERA ‘GUILT

BY ASSOCIATION’ STATUTES AS

IMPERMISSIBLE.

In the 1950s, at a time of national fear over

the unprecedented threat posed by international

communism, Supreme Court cases addressed the

constitutionality of statutes and administrative

action similar to AEDPA. Clear First Amendment

and due process principles in those cases limit

criminal lability for association with or advocacy on

behalf of designated “subversive” organizations.

These principles apply directly to AEDPA. AEDPA

does not comply with them, and accordingly is

unconstitutional.

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A. AEDPA Penalizes the Relationship Between

an Individual and a Designated Organization,

in Violation of the Freedom of Association.

In the aftermath of the McCarthy Era, this

Court established clear limits on civil or criminal

“guilt by association,” In Scales v. United States,

367 U.S. 203 (1961), this Court rejected the

Membership Clause of the Smith Act and

established two related limits directly relevant to

AEDPA: (1) the Constitution bars a_ blanket

prohibition on association with groups with legal and

illegal aims; and (2) the Constitution requires that

criminal sanctions be limited only to individuals who

specifically intend to further a designated group’s

illegal aims.

1. Congress Cannot Impose a “Blanket

Prohibition” on Association With

Groups Having Legal and Illegal Aims.

In Seales, this Court explained: “A blanket

prohibition of association with a group having both

legal and illegal aims” would create “a real danger

that legitimate political expression or association

would be impaired.” /d. at 229. That same day, the

Court also held that convictions under the

Membership Clause of the Smith Act require the

strictest possible standards, due to the danger that

an individual supporting only the lawful aims of an

organization “might be punished for his adherence to

lawful and protected purposes, because of other and

unprotected purposes which he does not necessarily

share.” Noto v. United States, 367 U.S. 290, 299-300

(1961).

-jiji -

In later cases, the Court affirmed and

expanded this essential doctrine that association

with a proscribed organization by itself cannot

justify criminal hability. See Elfbrandt v. Russell,

384 U.S. 11, 19 (1966) (concluding that an Arizona

law barring Communist party members from

teaching in Arizona schools “infringes unnecessarily

on protected freedoms” and “rests on the doctrine of

‘guilt by association.”); Keyishian v. Bd. of Regents

of the Univ. of the State of New York, 385 U.S. 589,

607 (1967) (holding that even membership in the

Communist Party by an individual with knowledge

of the Party’s unlawful goals “cannot suffice to

justify criminal punishment.”) (citing Scales).

AEDPA, in effect, similarly imposes a “blanket

prohibition” on _ association with designated

organizations (2e, whoever the government

specifies), and would render conduct criminal on

little more than a “guilt by association” theory. The

statute prohibits individuals from interacting with

the designated organizations in ways that advance

legal aims of the organizations, such as providing

training or expert advice on international human

rights law or political advocacy, teaching community

organizing, or providing instruction in principles of

non-violent resistance. Indeed, the sweep of the

statute is so vast that it potentially encompasses

activities that neither “support” a group nor are

“material.” Criminalizing broad categories of

“training,” “expert advice,” or “service” certainly

encompasses activities that are not “material,” and

accordingly, there is no discernible difference

between “material support” and mere association.

As such, AEDPA criminalizes behavior that

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promotes the group’s “lawful and_ protected

purposes,” contrary to Scales and Noto.

2. The Government Must Prove that

Individuals Intend to Further the

Illegal Aims of an Organization.

This Court in Scales noted that requiring

proof of an individual’s specific intent to support the

illegal aims of a proscribed organization is a

corollary of the principle that the government may

not impose a “blanket prohibition” on association

with proscribed organizations. The Court explained:

In our jurisprudence, guilt is personal,

and when the _ imposition’ of

punishment on a status or on conduct

can only be justified by reference to

the relationship of that status or

conduct to other concededly criminal

activity (here advocacy of violent

overthrow), that relationship must be

sufficiently substantial to satisfy the

concept of personal guilt in order to

withstand attack under the Due

Process Clause of the Fifth

Amendment.

Scales, 367 U.S. at 224-25.

The Court construed the Smith Act

Membership Clause as not rendering “criminal all

association with an organization which has been

shown to engage in illegal advocacy” but requiring

“clear proof that a defendant ‘specifically intend(s) to

accomplish (the aims of the organization) by resort to

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violence.” Jd. at 229 (citing Noto, 367 U.S. at 290). A

conviction is only appropriate where the government

puts forward “proof that [the defendant] knew that

the organization engaged in criminal advocacy, and

that it was his purpose to further that criminal

advocacy.” /d. at 227, n.18.

The Court has repeatedly reaffirmed this

specific intent requirement. See Elfbrandt, 384 U.S.

at 19 (“A law which applies to membership without

the ‘specific intent’ to further the illegal aims of the

organization infringes unnecessarily on protected

freedoms” and “rests on the doctrine of ‘guilt by

association’ which has no place here.”); Keyishian,

385 U.S. at 608 (“[Llegislation which sanctions

membership unaccompanied by specific intent to

further the unlawful goals of the organization or

which is not active membership violates the

constitutional limitations.”); MAACP v. Claiborne

Hardware Co., 458 U.S. 886, 920 (1982) (“civil

hability may not be imposed merely because an

individual belonged to a group .... 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.”).

Indeed, in the face of this long line of cases,

the government eventually acknowledged in

defending McCarthy Era statutes that it was

required to demonstrate “specific intent,” a

requirement it now disavows in defending AEDPA.

For example, in United States v. Robel, 389 U.S. 258

(1967), in defending the provision of the Subversive

Activities Control Act allowing summary

termination of employees of defense contractors, the

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government acknowledged that specific intent was

required for criminal convictions, stating flatly that

to treat “association, in and of itself, as criminal

conduct . . . would conflict squarely with the First

Amendment.” See Appellant United States Br. at 47-

48, Robel, supra.’

AEDPA makes association a crime without

regard to the specific intent of the individual to

support the illegal activities of a designated

organization. It violates this crucial constitutional

requirement that this Court established in the

McCarthy Era cases and that applies with equal

force today.

B. Like McCarthy Era Statutes, AEDPA Makes

Constitutionally Protected Speech a Crime

and is Unconstitutionally Vague, Chilling

Free Speech.

¥ AEDPA Unconstitutionally Penalizes

Protected Speech in the Same Manner

as McCarthy Era Laws.

In challenges to the application of the Smith

Act, this Court found that advocating or teaching the

violent overthrow of the government, even with an

evil intent, is protected speech as long as it is

“divorced from any effort to instigate action to that

3 The Court was unpersuaded by thie distinction, and struck

the statutory scheme in Aobe/ as unconstitutional, because the

bar on employment “literally establisheid] guilt by association

alone, without any need to establish that an individual's

association poseld) the threat feared by the Government in

proscribing it.” Robel, 389 U.S. at 264-65.

- 15 -

end.” Yates v. United States, 354 U.S. 298, 318

(1957); see also id. at 331. Even where individuals

have advocated for the overthrow of the United

States Government, that speech is protected unless

“the speech or publication created a ‘clear and

present danger’ of attempting or accomplishing the

prohibited crimes... .” Dennis v. United States, 341

U.S. 494, 505 (1951).

The Court elaborated the standard for

evaluating legislative restrictions on teaching and

advocacy in Brandenburg v. Ohio, 395 U.S. 444

(1969). In Brandenburg, the Court struck down the

Ohio Criminal Syndicalism Act because the act

punished “mere advocacy,” even though the speech

advocated illegal activity. The Ohio Criminal

Syndicalism Act, which was nearly identical to

similar laws adopted by 20 states, punished persons

who “advocate or teach the duty, necessity, or

propriety” of violence as a means of “accomplishing

industrial or political reform....”. Ohio Rev. Code

Ann. § 2923.13 (1969). The Court, overruling its

previous decision in Whitney v. California, 274 U.S.

357 (1927), held that the government cannot

penalize advocacy or teaching of the use of force or

violating the law unless it can prove that the speech

is “directed to inciting or producing imminent

lawless action and is likely to incite or produce such

action.” Brandenburg, 395 U.S. at 447.

As interpreted by the government, AEDPA

makes association a crime, including teaching or

advocating on behalf of any designated organization,

and AEDPA is strikingly similar to the language of

the Smith Act and the Ohio Criminal Syndicalism

Act. On its face, AEDPA prohibits speech that is not

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“directed to inciting or producing imminent lawless

action” and is not likely to “incite or produce such

action.” See 8 U.S.C. §§ 1189, 2339B. Furthermore,

the speech that AEDPA prohibits is speech

advocating lawful activity, and the Court in cases

such as Dennis and Brandenburg disapproved

statutory interpretation that allowed the

government to restrict speech advocating even

unlawful activity. For example, AEDPA prohibits

the teaching of law or human rights, or providing

advice on water. sanitation to designated

organizations. The statute even apparently bars

drafting an amicus brief in support of a designated

organization or advocating on behalf of a designated

organization before the United States Government

or the United Nations.

Whether or not the executive branch has

concluded that an organization engages in illegal

conduct, the First Amendment protects the rights of

individuals to speak, teach or provide advice to such

organizations -- certainly where such speech is in

furtherance of non-violent or other legal aims of the

organization. Cf De Jonge v. Oregon 299 U.S. 353

(1937) (reversing conviction under Oregon criminal

syndicalism law of individual who helped organize

Communist Party meeting in 1934); Claiborne

Hardware Co., 458 U.S. at 908 (individuals who

advocate on behalf of an organization do “not lose all

constitutional protection merely because some

members of the group may have participated in

conduct or advocated doctrine that itself is not

protected.”). Such groups may be unpopular. But

the First Amendment protects even those who speak

to or on behalf of unpopular organizations.

e 17 e

2. AEDPA Chills Protected Speech.

During the McCarthy Era, fear of enforcement

of statutes such as the Smith Act and the Ohio

Criminal Syndicalism Act caused individuals to

refrain from engaging in protected speech or

associating with designated organizations.

Likewise, here, AEDPA creates the danger of

chilling the exercise of First Amendment rights.

In Keyishian, supra the Court found

unconstitutionally vague a New York statute making

“treasonable” or “seditious” words or acts grounds for

removal from state employment. Aeyishian, 385

U.S. at 597-99, N.Y. Epuc. LAw §§ 3021, 3022; N.Y.

Civ. SERV. LAW § 105. In striking down the statute,

the Court found that the “First Amendment

freedoms need breathing space to survive...” and

emphasized the danger of a “chilling effect upon the

exercise of vital First Amendment rights.”4

4 A challenge to a statute based on vagueness grounds requires

the court to consider whether the statute is “sufficiently clear

so as not to cause persons ‘of common intelligence ... necessarily

[to] guess at its meaning and Ito] differ as to its application.’

Connally v. General Constr. Co., 269 U.S. 385, 391(1926).

In Keyishian, the Court found that no state employee “can

know just where the line is drawn between ‘seditious’ and

nonseditious utterances and acts.” /d. at 599. The same New

York statute prohibited state employment by any person who

“advocates, advises or teaches the doctrine” of forceful

overthrow of the government. See N.Y. Epuc. LAW §§ 3021,

3022; N.Y. Civ. Sexv. LAW § 105. The Court found that “{t)his

provision is plainly susceptible of sweeping and improper

application. It may well prohibit the employment of one who

merely advocates the doctrine in the abstract without any

attempt to indoctrinate others or incite others to action in

furtherance of unlawful claims.” Aeyishian, 385 U.S. at 599.

-18-

Keyishian, 385 U.S. at 604. See generally, NAACP

v. Button, 371 U.S. 415 (1963) (“the threat of

sanctions may deter [the exercise of First

Amendment Rights] almost as potently as actual

application of the sanctions”).

Local and state governments relied on

statutes similar to New York’s to terminate

numerous dedicated teachers across the United

States without any evidence of unlawful or violent

activity. Amucus Irving Adler and Samuel Wallach

(father of amicus Joan Wallach Scott), were fired

from New York City teaching jobs for resisting

inquiries into their political beliefs; amicus Chandler

Davis lost his teaching job at the University of

Michigan after refusing to testify and was

imprisoned after being cited for contempt of

Congress; amicus Henry Foner was denied a

teaching license and his three brothers lost their

New York teaching jobs after their “loyalty”

testimonies; amicus Lee Lorch lost his position at

Fisk University for refusing to answer HUAC’s

questions; Yetta Stromberg, great-aunt of amicus

Judy Branfman was fired from teaching positions

with UCLA and Los Angeles public schools;

renowned philosopher Barrows Dunham, father of

amicus Clarke Dunham, lost his position at Temple

University; Frank and Jean Wilkinson, parents of

amicus Jo Wilkinson, lost their jobs after refusing to

testify before a California cemmittee; and Dr. Robert

Hodes, father of amicus Peter Hodes was fired from

Tulane University and had to move abroad to

continue his career.

Even children were not immune from the

chilling effects of such restrictions on speech and

-19-

association: FBI agents questioned classmates and

playground friends of amici siblings Ernst and

Jessica Benjamin when they were schoolchildren,

because their parents Herbert and Lillian Benjamin

had been blacklisted.

AEDPA similarly creates fear of prosecution

for groups and individuals today who would lawfully

advocate on behalf of designated organizations or

provide those organizations with advice and training

relating to lawful activities. In 1951, when HUAC

agents attempted to subpoena them, amici Jean and

Hugo Butler chose to flee to Mexico to avoid arrest.

Amicus Walter Bernstein, a blacklisted writer in the

1950s, was forced to write under a pseudonym.

Screenwriter Michael Wilson, father to amici Becca

Wilson and Rosanna Wilson-Farrow, had to write

“under the table” and did not receive credit for his

work, including Oscar-winning films Bridge Over the

River Kwai (1957) and Lawrence of Arabia (1952).

Hollywood Ten screenwriters Sam Ornitz, father-in-

law of amicus Hilda Ornitz, and Adrian Scott,

husband, uncle, and great uncle of amici Joan Scott,

Aemelia Scott, Adam Scott, and Douglas Scott,

served nine months in prison and had their careers

destroyed for refusing to testify before HUAC.

Like the statutes in Keyishian, AEDPA “is

plainly susceptible of sweeping and _ improper

application.” Aeyishian, 385 U.S. at 599. The

chilling effect on lawful speech is reminiscent of the

McCarthy Era where people feared speaking on

behalf of or associating with designated groups in

part because it was unclear what speech might

trigger government action.

- 20 -

The Court should protect those who want

lawfully to exercise their First Amendment rights

from this sort of vague statute that uses ill-defined

and undefined terms to make speech a crime.

C. National Security Concerns Cannot Justify

Infringements on Freedom of Association.

The government defends AEDPA on national

security grounds. See Petition for Writ of Certiorari,

at 11 #£4(citing congressional findings that

“international terrorism is a serious and deadly

problem that threatens the vital interests of the

United States”). When the government argued in

the 1940s, 50s, and 60s that the national security

threat posed by international communism justified

infringements on rights of speech and association,

this Court closely scrutinized such claims to ensure

that the means are narrowly tailored to serve the

national security interest. As this Court noted then,

“the phrase ‘war power’ cannot be invoked as a

talismanic incantation to support any exercise of

congressional power which can be brought within its

ambit.” Fobel, 389 U.S. at 263.

In Robel, the government argued that the

threat of international communism in the aftermath

of the Korean War made it “plain beyond all doubt

that communism has passed beyond the use of

subversion to conquer the independent nations and

will now use armed invasion and war.” Government

Br. at 22, Robel, supra (cites and quotes omitted).

The government contended that the Communist

Party “can no longer be viewed passively as a group

of mere political and ideological dissidents, but must

be looked upon with all seriousness as a military

-91-

fifth column actively aiding our enemies.” /d. at 22.

The government cited congressional reports warning

of “sabotage” by “hard-core Communists” “which

action would coincide with surprise attacks on the

country.” Jd. at 26. The government even invoked

the now-discredited arguments of Hirabayashi v.

United States, 320 U.S. 81 (1943) (upholding

imposition of a blanket curfew only on Japanese

Americans during World War II, absent any

evidence of individual guilt or misconduct) to claim

that it was owed “the very broad discretion which

has traditionally been vested in the legislative and

executive branches of government in the area of war

and national defense.” Robe/ Br. at 29-30 (times of

war “call for the exercise of judgment and discretion

and .for the choice of means by those branches of

government on which the Constitution has placed

responsibility of war-making, it is not for any court

to sit in review of the wisdom of their action or

substitute its judgment for theirs”).5

In the face of these claims, this Court

responded:

[The] concept of national defense

cannot be deemed an end in itself,

justifying any exercise of legislative

power designed to promote such a

goal. Implicit in the term national

defense is the notion of defending

® The doctrine of Hirabayas/ui has been widely discredited as an

abdication of the Court’s historic defense of constitutional

nghts. See, e.g. Hirabayashi v. United States, 828 F.2d 591,

593 (9th Cir. 1987).

- 99 -

those values and ideals which set this

nation apart. For almost’ two

centuries, our country has_ taken

singular pride in the democratic ideals

enshrined in the Constitution, and the

most cherished of those ideals is found

in the First Amendment. It would be

ironic if, in the name of national

defense, we would. sanction the

subversion of one of those liberties --

the freedom of association -- which

makes the defense of the Nation

worthwhile.

Robel, 389 U.S. at 263-64.

The Robe/ Court concluded that despite the

government’s broad invocation of national security,

the “means the Government has chosen to

implement” its purpose was not narrowly tailored

and violated the right to free association, because

the government was not required to prove that any

individual in fact engaged in any activity that posed

a risk to national security: “The statute quite

literally establishes guilt by association alone,

without any need to establish that an individual’s

association poses the threat feared by the

government in proscribing it.” /d. at 265. Likewise

here, AEDPA punishes speech without a showing of

incitement to crime, and it punishes association with

designated organizations without establishing that

an individual’s association poses a threat. As such,

AEDPA is not narrowly tailored to serve an interest

in national security and is unconstitutional.

- 2 3 °

CONCLUSION

For all of the above reasons, and in accordance

with the request of Plaintiffs Humanitarian Law

Project et al., the Court should affirm the court of

appeals’ decision with respect to the provisions it

held invalid as applied to plaintiffs’ speech, and

reverse the court’s decision with respect to the

provisions it upheld.

Respectfully submitted,

John A. Freedman

(Counsel of Record)

Jonathan S. Martel

Jeremy C. Karpatkin

Bassel C. Korkor

Sara K. Pildis

ARNOLD & PORTER LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Stephen F. Rohde

Rohde & Victoroff

1880 Century Park East

Suite 411

Los Angeles, CA 90067

(310) 277-1482

Attorneys for Amici Curiae