Material Support of Terrorist Organizations

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Congress may bar supporting the legitimate activities of certain foreign terrorist organizations through speech made to, under the direction of, or in coordination with those groups. So held the Court in Holder v. Humanitarian Law Project,766 a case challenging an effective prohibition on giving training in peaceful dispute resolution, teaching how to petition the United Nations for relief, providing legal expertise in negotiating peace agreements, and the like.767 Without express reliance on wartime precedents, and yet also without extended discussion of plaintiffs’ free speech interests, the Court emphasized findings by the political branches that support meant to promote peaceful conduct can nevertheless further terrorism by designated groups in multiple ways. The Court also cited the narrowness of the proscription imposed. Only carefully defined activities done in concert with previously designated organizations were barred. Independent advocacy and mere membership were not restricted. Given the national security and foreign affairs concerns at stake, Congress had adequately balanced the competing interests of individual speech and government regulation, deference to the informed judgment of the political branches being due even absent an extensive record of concrete evidence.768

766 561 U.S. ___, No. 08–1498, slip op. (2010).

767 The six-Justice majority also held that the statute at issue gave adequate notice of what conduct was prohibited, a conclusion with which the dissenting Justices agreed, and basic First Amendment rights of association and assembly were not implicated, a conclusion about which the dissent was less sanguine. 561 U.S. ___, No. 08–1498, slip op. at 13–20, 34–35 (2010). See also 561 U.S. ___, No. 08– 1498, slip op. 1, 3–5 (2010) (Breyer, J., dissenting).

768 The majority purported to apply a level of scrutiny more rigorous than the intermediate scrutiny test applied in cases in which conduct, rather than the content of speech, is the primary target of regulation. 561 U.S. ___, No. 08–1498, slip op. at 22–23 (2010). The dissent found the majority’s analysis to be too deferential and insufficiently exacting, and also thought the case might be susceptible to resolution on statutory grounds if remanded. 561 U.S. ___, No. 08–1498, slip op. 7–22 (2010) (Breyer, J., dissenting).