Holder v. Humanitarian Law Project
Does the federal law that criminalizes providing 'material support or resources' — including speech-related activities like training and expert advice — to designated foreign terrorist organizations violate the First and Fifth Amendments of the Constitution?
The Decision
6-3 decision · Opinion by John G. Roberts, Jr. · 2010
Majority Opinion— John G. Roberts, Jr.concurring ↓dissent ↓
In a 6–3 decision authored by Chief Justice John G. Roberts, Jr., the Supreme Court upheld the material support statute and reversed the Ninth Circuit. The Court held that the law was neither unconstitutionally vague nor a violation of the First and Fifth Amendments as applied to the plaintiffs' proposed activities of training, providing expert advice, offering legal services, and engaging in political advocacy coordinated with or directed to the PKK and LTTE.
On the vagueness challenge, the Court found that the statute, as amended by Congress, gave people of ordinary intelligence a reasonable opportunity to understand what conduct was prohibited. The terms 'training,' 'expert advice or assistance,' 'service,' and 'personnel' were sufficiently defined, especially because the statute requires that the support be provided 'to' or 'for the benefit of' a designated foreign terrorist organization and that the defendant act with knowledge that the organization is an FTO or engages in terrorism.
On the First Amendment question, the Court acknowledged that the plaintiffs' proposed activities implicated speech and association rights, and therefore applied a heightened standard of review. However, the majority held that the statute survived this scrutiny. Chief Justice Roberts reasoned that Congress had an urgent and compelling interest in combating terrorism and that providing material support to foreign terrorist organizations — even in the form of peaceful training or legal advice — directly furthers terrorism in multiple ways. The Court explained that such support lends legitimacy to terrorist groups, can be used by those groups in ways the donors never intended, and frees up other resources that the groups can redirect toward violent activities. The majority also emphasized that Congress and the Executive deserve significant deference when making judgments about national security and foreign policy, and that the Court was not equipped to second-guess those judgments about how terrorist organizations operate.
Critically, the Court drew a line: the statute does not prohibit independent advocacy — that is, a person speaking on their own in favor of a cause, even one associated with an FTO. What the statute prohibits is support that is coordinated with, or provided to, the foreign terrorist organization itself. The Court stressed that this distinction preserved room for constitutionally protected speech. However, when someone works under the direction of or in coordination with an FTO, even delivering a speech or writing a legal document, that activity becomes 'material support' that Congress may lawfully criminalize.
The decision was a major ruling affirming the government's power to restrict certain forms of speech and association in the name of national security, while also acknowledging the First Amendment interests at stake. The 6–3 majority included Chief Justice Roberts, joined by Justices Stevens, Scalia, Kennedy, Thomas, and Alito.
Concurring Opinions
There were no separate concurring opinions filed in this case; all six justices in the majority joined Chief Justice Roberts's opinion in full.
Dissenting Opinions
Stephen G. Breyerjoined by Ruth Bader Ginsburg, Sonia Sotomayor
Justice Breyer argued that the majority's decision gave the government far too much power to criminalize constitutionally protected speech, and that the statute as applied to the plaintiffs' proposed activities — teaching peaceful conflict resolution, assisting with peace negotiations, and advocating for human rights before the United Nations — could not survive First Amendment scrutiny. He contended that the government failed to demonstrate that these specific, independently conceived, speech-based activities posed any real threat to national security.
- The First Amendment demands that the government show a strong connection between the specific prohibited speech and a compelling interest, and here the government relied only on speculation that peaceful legal training might somehow help a terrorist organization — not concrete evidence
- The majority's approach effectively creates a rule that any speech coordinated with a designated organization is criminal, regardless of whether it actually furthers terrorism, which could sweep up enormous amounts of protected political advocacy
- The distinction between 'independent' advocacy and 'coordinated' support is dangerously unclear in practice and gives the government almost unchecked power to decide when someone's peaceful political speech crosses the line into criminal conduct
- History teaches that the government's national security claims deserve scrutiny, not blind deference, because overbroad security justifications have been used to suppress legitimate dissent in the past
Background & Facts
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, which included a provision (18 U.S.C. § 2339B) making it a federal crime to knowingly provide 'material support or resources' to organizations the Secretary of State has designated as foreign terrorist organizations (FTOs). The statute defined 'material support' broadly to include not just money and weapons but also 'training,' 'expert advice or assistance,' 'personnel,' and 'service.' Anyone convicted could face up to 15 years in prison — or life in prison if a death resulted from the support.
The Humanitarian Law Project was a human rights organization based in Los Angeles. Along with several individual plaintiffs, it wanted to provide specific, peaceful assistance to two designated FTOs: the Kurdistan Workers' Party (known as the PKK), a militant group in Turkey, and the Liberation Tigers of Tamil Eelam (the LTTE or Tamil Tigers) in Sri Lanka. Specifically, the plaintiffs wanted to train members of these groups in how to use international humanitarian law to resolve disputes peacefully, to teach them how to petition the United Nations for relief, and to provide legal expertise to assist with peace negotiations. The plaintiffs had no interest in supporting violence — they wanted to promote lawful, nonviolent conduct.
The Humanitarian Law Project filed suit in federal court in 1998, arguing that the material support law was unconstitutionally vague under the Fifth Amendment (meaning ordinary people couldn't know what conduct was prohibited) and that it violated the First Amendment by criminalizing pure speech and association. The case wound through the courts over more than a decade, bouncing between the Central District of California and the U.S. Court of Appeals for the Ninth Circuit multiple times. Congress amended the statute during this period to try to clarify certain terms. Ultimately, the Ninth Circuit ruled that several provisions — particularly 'training,' 'expert advice or assistance,' 'service,' and 'personnel' — were unconstitutionally vague as applied to the plaintiffs' proposed activities. The Ninth Circuit also concluded that the statute likely violated the First Amendment.
The U.S. government, represented by Attorney General Eric Holder, asked the Supreme Court to hear the case, arguing that the Ninth Circuit had gotten it wrong and that Congress had the power to prohibit all forms of material support to terrorist organizations, even support that took the form of speech. The Supreme Court agreed to hear the case because it raised fundamental questions about the boundaries between national security powers and individual constitutional rights — particularly in the context of the global war on terrorism.
The Arguments
The federal government argued that Congress has broad authority to prohibit all forms of material support to designated foreign terrorist organizations, including support that takes the form of speech, training, or expert advice. The government contended that even peaceful, well-intentioned assistance to these groups furthers terrorism because it frees up resources, lends legitimacy, and can be redirected toward violent ends.
- Any form of support to a terrorist organization — even seemingly benign help — strengthens the organization overall and can free up other resources to be used for violence
- Congress and the Executive Branch possess special expertise and constitutional authority in matters of national security and foreign affairs, and courts should give significant deference to their judgments about what kinds of support are dangerous
- The statute is sufficiently clear and well-defined, especially after Congress amended it to add specific definitions, and does not leave ordinary people guessing about what is prohibited
- Providing training or expert advice in coordination with a terrorist organization is fundamentally different from independent advocacy, and the statute only targets the former
The Humanitarian Law Project argued that the material support statute, as applied to their peaceful, speech-related activities, violated their First Amendment rights to free speech and association and was unconstitutionally vague under the Fifth Amendment. They contended that criminalizing their efforts to teach nonviolent conflict resolution and international law to these groups went far beyond what national security required.
- The First Amendment protects the right to advocate for peaceful, lawful objectives, and the plaintiffs' proposed activities — teaching international law, helping with peace negotiations — are core political speech
- The statute is so broad and vague that it could criminalize activities as innocent as writing an op-ed or filing a legal brief that happens to benefit an FTO, chilling legitimate speech and association
- The government offered no evidence that the plaintiffs' specific proposed activities — independent advocacy for peaceful dispute resolution — would actually further terrorism
- Under strict scrutiny, the government must use the least restrictive means to achieve its goals, and a blanket prohibition on all speech-related support fails that test
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