Holder v. Humanitarian Law Project – Oral Argument – February 23, 2010

Media for Holder v. Humanitarian Law Project

Audio Transcription for Opinion Announcement – June 21, 2010 in Holder v. Humanitarian Law Project

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Case 08-1498, Holder v. Humanitarian Law Project and the cross-petition.

Mr. Cole.

David D. Cole:

Mr. Chief Justice, and may it please the Court: This as-applied challenge asks whether the government can make it a crime for Ralph Fertig and the Humanitarian Law Project to speak in association with the Kurdistan Workers Party.

Specifically, they seek to advocate for legal reform in Congress and the UN, to write and distribute articles supportive of Kurdish rights, to inform the Kurds of their international human rights and remedies, and to advise them on peaceful conflict resolution.

It is undisputed that the Kurdistan Workers Party engages in a wide range of lawful activities and that plaintiffs seek to support only lawful ends.

The government has a concededly compelling interest in combatting terrorism, yet it has not even tried to defend these prohibitions under strict scrutiny.

Instead, it rests its entire case on the proposition that criminalizing plaintiffs’ speech is a regulation of conduct, not speech, and therefore can be upheld under O’Brien.

That view is mistaken for two fundamental reasons.

First, as this Court has already held, O’Brien is inapplicable where the government prohibits pure speech–

John Paul Stevens:

But, Mr. Cole, don’t you agree that some of the speech could be regulated?

David D. Cole:

–Some of my clients’ speech?

John Paul Stevens:

Some of the speech of your client.

David D. Cole:

I don’t think — I don’t think any of it could be prohibited, Your Honor, unless the government can satisfy the stringent scrutiny that this Court applies when Congress seeks to prohibit pure speech.

So, no, I don’t — I–

John Paul Stevens:

You think all of the speech at issue is protected?

David D. Cole:

–I think that certainly all of the speech that I’ve just identified, which is the core–

John Paul Stevens:

You identified quite a bit.

David D. Cole:

–Right.

Yes.

It’s core — and I think the reason, Your Honor, is it is core political speech on issues of public concern.

It is advocating only lawful, peaceable activities.

This Court has never upheld the criminal prohibition of lawful speech on issues of public concern.

Anthony M. Kennedy:

Well, could the government, I assume — I assume you will say NGO or other organization or person from giving tsunami aid to one of these organizations, from giving them money?

David D. Cole:

I think money is different, Your Honor.

Anthony M. Kennedy:

Could they — could the government prohibit that?

David D. Cole:

I think money is different because it’s — it’s conduct, not speech.

Anthony M. Kennedy:

Okay.

Let’s assume the government could prohibit that.

Then the next question is: Could the government prohibit speech instructing the terrorist organization how to get the tsunami aid?

David D. Cole:

Right.

David D. Cole:

And I think — I think, Your Honor, that the answer is no, for the — unless the government can meet the higher standard of scrutiny that applies when you’re regulating speech.

Anthony M. Kennedy:

Brandenburg?

David D. Cole:

Well, I don’t know whether it would necessarily be Brandenburg.

I think for — in order to apply — to decide this case, Your Honor, all the Court has to find is that when the speech advocates solely lawful, peaceable activities of the sort advocated here, that’s not sufficient.

I think specific — we’ve suggested a specific intent standard, which is lower than Brandenburg, would be appropriate–

Anthony M. Kennedy:

But — but if you get tsunami money, that frees up your other assets for terrorist money.

So why can’t the government forbid teaching how to get that money?

David D. Cole:

–Well, again, Your Honor, that — if the government — if the connection between the speech and the government’s concern were sufficiently close, then maybe it could.

But the problem–

Sonia Sotomayor:

So why can’t there be–

Anthony M. Kennedy:

Then what’s the test?

Is it — you say it’s not Brandenburg?

David D. Cole:

–I think the test is whether the — whether the speech — when it’s speech, I think the test is whether the speech has been provided with specific intent or knowledge that it will further unlawful, terrorist ends of the group.

John G. Roberts, Jr.:

What if it goes–

Samuel A. Alito, Jr.:

And that applies–

John G. Roberts, Jr.:

–What if it goes to the mere existence of a group?

Let’s say you have the Nazi Party, and you are talking about advice or speech on some purely mundane issue.

The Nazis have a hospital, and you are giving them advice on how to run a hospital, but the government decides that anything that legitimizes the Nazi Party, you know, promotes that group’s terrorist activities.

Can the government make that kind of determination?

I’m thinking of something like Regan v. Wald–

David D. Cole:

Right.

John G. Roberts, Jr.:

–where they say, look, you can’t travel to Cuba because we don’t want to do anything that legitimizes the regime.

David D. Cole:

Right.

Well, two answers.

Does your question refer to the Nazi Party today or the Nazi Party during World War II?

John G. Roberts, Jr.:

No, I meant during World War II.

David D. Cole:

Okay.

John G. Roberts, Jr.:

I’m just trying to find an example that doesn’t implicate the particulars of the issue today.

David D. Cole:

Right, right.

So I think — the reason I ask, Your Honor, is that it may make a difference if we are at war.

David D. Cole:

The law of treason prohibits aid–

John G. Roberts, Jr.:

No, I didn’t — my hypothetical was confusing.

I didn’t mean to suggest we were at war.

David D. Cole:

–Okay.

John G. Roberts, Jr.:

I meant to hypothesize a group that the government could reasonably determine should not be supported in any way–

David D. Cole:

Right.

John G. Roberts, Jr.:

–because it legitimizes it.

It’s going to make their hospital run better.

People are going to like their hospital.

So the party, the group, will be legitimized.

David D. Cole:

Right.

Well, I think all the Court held in Regan and Zemel was that it is permissible for the government to regulate conduct — not speech — travel, and economic transactions, not speech.

Those were essentially O’Brien cases.

And, in fact, in Regan the Court distinguished a prohibition on travel to Cuba across the board from a prohibition directed at a group, the Communist Party, in the Kent and Aptheker cases, where the Court held that–

Ruth Bader Ginsburg:

But if you can’t travel there — suppose you want to travel there so that you can meet with and discuss lawful activities with people there.

If you can’t get there, you can’t speak.

David D. Cole:

–That’s right, Your Honor.

But that — but that’s essentially an O’Brien situation.

The prohibition is on a conduct, whether it’s draft card burning or travel.

The individual who seeks to engage in that conduct says, I want to do it for speech purposes.

But the Court says the government has a freer hand in regulating conduct than speech, and, therefore, as long as you’re regulating the non-expressive element of the conduct, we’ll apply O’Brien.

But what this Court has said is that when–

Sonia Sotomayor:

–Could the government stop you from meeting anywhere with the terrorists?

David D. Cole:

–From meeting?

No, I don’t think–

Sonia Sotomayor:

Just meeting, traveling to one of these countries to actually do your teaching to a terrorist — let’s say the law said you’re prohibited from traveling to meet any of these individuals.

How would that be different than the Cuba situation?

David D. Cole:

–Well, then, if it’s — if it’s traveling for the purpose of association, then it would be targeted at association, not at the conduct of travel.

The whole–

Sonia Sotomayor:

But it’s no different than the Cuba situation.

David D. Cole:

–No, but the whole point of the Cuba — the Cuba travel cases is that — again, as this Court said, it was an across-the-board ban.

It did not apply to different political groups.

It applied to anyone who sought to travel to Cuba.

And it was about travel.

Anthony M. Kennedy:

Well, suppose it’s a ban just for travel to meet with terrorist organizations, Justice Sotomayor’s hypothetical.

David D. Cole:

Right.

Well, then I think — I think that’s — that’s different from this case, right, because this case — suppose it’s a ban on speech wherever it occurs.

Anthony M. Kennedy:

But what about the — what about the hypothetical?

David D. Cole:

Right.

Well, with respect to the hypothetical, I think the question, Your Honor, would be whether the government’s interest in banning that travel is unrelated to the associational or speech purposes.

Anthony M. Kennedy:

It’s what the Chief Justice says: In any context, support ultimately will inure to the benefit of a terrorist organization, and we have a governmental interest in not allowing that.

David D. Cole:

There’s no — there’s no dispute, Your Honor, that the government has a compelling interest in cutting off aid to terrorism.

The question is whether it can do so by criminalizing pure speech.

Antonin Scalia:

Well, it hasn’t criminalized speech.

It has criminalized providing aid and assistance to these organizations.

Most of that aid and assistance that is prohibited is not in the form of speech, but it happens to include speech as well.

David D. Cole:

Right, but, Justice Scalia–

Antonin Scalia:

I think that’s quite different from a law that is directed explicitly at speech.

David D. Cole:

–Well, I don’t — I think it’s not in this — in this sense, Justice Scalia.

Imagine a statute that banned aid to overthrow the United States Government.

And it had three provisions: One, you can’t assassinate the president; two, you can’t provide bombs and weapons to groups attempting to overthrow the government; three, you can’t advocate overthrow of the government.

If that were applied to someone for speaking in advocacy, we wouldn’t say it’s a regulation of speech.

Antonin Scalia:

That’s not the right — that’s not the right number three.

The right number three is you cannot advise and assist an organization that is seeking to overthrow the government.

That’s what is at issue here, not–

David D. Cole:

Well, but–

Antonin Scalia:

–not independently promoting the objectives of these terrorist organizations.

Your — your clients are free to do that.

David D. Cole:

–Well–

Antonin Scalia:

But when they assist the organization by providing advice, that’s a different matter.

David D. Cole:

–Well, the government says if they — even if they speak in conjunction with the group, they — and they’re providing a benefit to the government, that’s prohibited.

So, for example–

Antonin Scalia:

Okay.

When they provide a benefit, right?

David D. Cole:

–So, for example, under that view, the New York Times, the Washington Post, and the L.A. Times, all of which published op-eds by Hamas spokespersons — Hamas is on the list — thereby providing a benefit to Hamas, working with the Hamas spokesperson, they’re all criminals.

President Carter–

Antonin Scalia:

Well, we — we can cross that bridge when we come to it.

David D. Cole:

–But–

Antonin Scalia:

This is an as-applied challenge, and we are talking about the kind of advice and assistance that your clients want to give.

David D. Cole:

–Right, and, Your Honor, there’s no–

Antonin Scalia:

It’s not a New York Times editorial.

David D. Cole:

–Well, it is, though.

It is, Your Honor.

I mean, it’s — Ralph Fertig is not the New York Times, and he’s not President Carter, but it’s the same sort of support, right?

President Carter–

Anthony M. Kennedy:

No, no.

I thought that he was — he wants to meet with the people.

The New York Times didn’t meet with Hamas to tell them how great their editorial was.

David D. Cole:

–No, but it’s not about — it’s not about whether you meet with them.

It’s about whether you coordinate with them, and they’ve certainly coordinated with the Hamas spokesperson in editing and accepting and then publishing his editorial.

That is — that would be providing a service.

It would–

Antonin Scalia:

It depends on what “coordinating” means, doesn’t it?

And we can determine that in the next case.

David D. Cole:

–Well, let me — let me also answer it this way, Justice Scalia: If you look at the specific speech which our clients seek to engage in, it includes writing and distributing literature in conjunction with the Kurdistan Workers Party in the United States advocating their support.

How is that different from the New York Times?

Stephen G. Breyer:

Supposing that — what you say is you want to engage in political advocacy on behalf of the Kurds.

That’s your words.

All right.

Suppose — and these are two hypotheticals.

Stephen G. Breyer:

Hypothetical one, your clients, let’s say, or some other people, know that what the Kurds’ hypothetical plan is, is to pretend they’re a political advocacy organization, but to go around shooting the people who don’t agree with them.

Okay?

Case one, the hypothetical defendant knows it.

In case two, he doesn’t know it, but it’s true.

David D. Cole:

Well, I think — I think if you — if you specifically intend and know that your aid will further the group in its terrorist activities, then it’s not protected speech.

But if you’re — if you don’t know that and you don’t intend that, and in this case–

Samuel A. Alito, Jr.:

–And that goes for all forms of training?

No form of training or expert assistance can be prohibited unless the individual specifically intends to further — that the training will be used to carry out terrorist activities?

David D. Cole:

–Well, Justice Alito, this is an as-applied challenge.

So the question simply is whether training in what international human rights consist of, in how to advocate for international human rights, and how to advocate politically in Congress and other bodies.

That’s the speech that’s at issue here.

Samuel A. Alito, Jr.:

Well, just out of curiosity, I thought your position was that no form of training or assistance could be prohibited–

David D. Cole:

No, I was just–

Samuel A. Alito, Jr.:

–consistent with the First Amendment.

That’s not your position?

David D. Cole:

–No.

I think — I think, again, it depends upon the form of speech.

There may be some forms of training that are so closely connected to the — to the end that Congress seeks to — legitimately seeks to proscribe, like training in bombmaking or training in military exercises.

Antonin Scalia:

The end that Congress seeks to proscribe is the existence of these terrorist organizations.

And the theory of the legislation is that when you aid any of their enterprises you’re aiding the organization.

Hamas, for example, gained support among — among the Palestinians by activities that are perfectly lawful, perhaps running hospitals, all sorts of things.

David D. Cole:

Right.

Antonin Scalia:

But that is what fosters the terrorist organization and enables the terrorist activities.

Why isn’t that a reasonable connection?

Any assistance you provide to these organizations cannot be separated from assistance to their terrorist activities.

David D. Cole:

Right.

Well, Your Honor, that is precisely the argument that the United States made to this Court in Scales.

And here I’m quoting from the government’s brief:

“Active membership can be proscribed even though the activity be expended along lines not otherwise illegal, since active support of any kind aids the organization in achieving its own illegal purposes. “

That was with respect to an organization that Congress spent 10 years studying, made findings that it was an international conspiracy directed and controlled by the Soviet Union with the aim of overthrowing the United States by force and violence, using terrorism.

David D. Cole:

And, nonetheless, this Court in Scales held you’ve got to distinguish between that aid and support and membership which is furthering the lawful activities and that which is furthering the illegal activities; otherwise you are penalizing the exercise of lawful speech.

The Court said the same thing in De Jonge.

Ruth Bader Ginsburg:

Mr. Cole, as I remember, Scales upheld a conviction, wasn’t–

David D. Cole:

It did, Justice Ginsburg, but only because it interpreted the statute to be — to be limited to specific — to members — active membership that is specifically intended to further the illegal ends of the group, precisely–

Anthony M. Kennedy:

But it didn’t — it was not a statute which involves banning financial or other tangible support, and page 17 of your brief made — this is a difficult case for me.

And the second paragraph, page 17, you say:

“The narrow focus of plaintiffs’ claims in this Court means that the case does not involve the propriety of banning financial or other tangible support. “

David D. Cole:

–Right.

Anthony M. Kennedy:

Then you say:

“Nor does it involve speech advocating or teaching criminal or violent activity. “

But it does involve speech, let’s say arguendo, that is tantamount to material support.

David D. Cole:

Well, I — right, but–

Anthony M. Kennedy:

Suppose the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization.

David D. Cole:

–Well, two things in response to that, Justice Kennedy.

First, that is what the United States argued in Scales.

And, again, the Court, not only in Scales but in a host of cases striking down Communist Party statute, said you have to distinguish between aid that’s intended to further lawful activity and aid that’s intended to further illegal activity when it’s in the form of protected activity — association, here speech and association.

And, secondly–

John Paul Stevens:

In those cases, the real question was whether membership was enough, wasn’t it?

David D. Cole:

–Active membership–

John Paul Stevens:

Yes.

David D. Cole:

–which the government says constitutes more than mere nominal membership.

Anthony M. Kennedy:

And this is support.

It’s different.

David D. Cole:

Well, Your Honor, in De Jonge, one of these cases, one of this Court’s first First Amendment cases, the government argued that Mr. De Jonge aided the Communist Party in its illegal ends by conducting a meeting for them and being their lead speaker at the meeting.

And this Court said: We’ve got to look at what he did, and what — yes, he conducted the meeting; yes, he was a member of the Communist Party; yes, he solicited people to join the Communist Party.

But what did he do?

He advocated lawful peaceable activities.

And this Court said–

Anthony M. Kennedy:

But there wasn’t a statute on the books that prohibited material support–

David D. Cole:

–Well, I don’t think it would–

Anthony M. Kennedy:

–And here there is, and this is in aid of that prohibition.

David D. Cole:

–Right, but Your Honor, what would — if Congress came along after the Communist Party cases and said, okay, you’ve said we can’t make it a crime to criminalize membership in the Communist Party; we are now going to make it a crime to speak in conjunction with the Communist Party — do you think the decisions would have come out any differently?

I don’t think so, because this Court has said that speech is different from money, that it–

Antonin Scalia:

I think it’s very unrealistic to compare these terrorist organizations with the Communist Party.

Those cases involved philosophy.

The Communist Party was — was — was more than a — than an organization that — that had some unlawful ends.

It was also a philosophy of — of — of extreme socialism.

And — and many people subscribed to that philosophy.

I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.

David D. Cole:

–Your Honor, this — this Court accepted Congress’s findings.

Congress’s findings were not that this was a philosophical debating society, but that it was an international criminal conspiracy directed by our enemy to overthrow us through terrorism.

Antonin Scalia:

That may be, but people joined it for philosophical reasons.

David D. Cole:

Oh, sure–

Antonin Scalia:

They joined it for philosophical reasons.

These terrorist organizations have very practical objectives.

And the only reason for joining them or assisting them is to assist those practical objectives.

David D. Cole:

–Well, I don’t think that’s — I don’t think that’s fair, Justice Scalia.

The Humanitarian Law Project has no interest in furthering terrorism, but the Kurdistan Workers Party are the principal representatives of the — of the Kurds in Turkey.

They do have an interest in protecting the rights of the Kurds.

They do have an interest in encouraging the Kurdistan Workers Party to — to disavow violence and engage in lawful peaceful means of resolving their disputes–

Sonia Sotomayor:

Mr. Cole–

Ruth Bader Ginsburg:

–Mr. Cole, would you distinguish — I think this came up in the court of appeals.

There are a lot of groups on the list.

I think the Al-Qaeda was one instance that was mentioned, and, at least according to the briefs, you conceded that if you wanted to do just what you describe with respect to the Kurdish group or the Tamil group, the ban would be permissible, if the group — if the group were Al-Qaeda, and I’ll throw in the Taliban.

David D. Cole:

–Yes.

We didn’t actually concede that, Your Honor.

That’s a misstatement on the part of the government.

If you look at the–

Ruth Bader Ginsburg:

Well, then — then as — suppose the group is not the two that we have here–

David D. Cole:

–Right.

Ruth Bader Ginsburg:

–but Al-Qaeda and the Taliban?

David D. Cole:

Right.

What we said, for the record, is that it would pose a very different constitutional question.

And I think there are two reasons why it might pose a different constitutional question.

One is — and that was — I’m picking up on my question back to Mr. Chief Justice, is it during wartime or not?

And during wartime, Congress has broader powers pursuant to the treason–

John Paul Stevens:

But I want to be sure I understand that point.

You think the issue in this case would be different if we were at war?

David D. Cole:

–I think it might be different if we were at war with these groups.

John Paul Stevens:

And if that’s true, why aren’t we now at war, with regard to our opposition to these organizations?

David D. Cole:

Well–

John Paul Stevens:

What is the difference, as a practical matter?

David D. Cole:

–Well — well, two things, Your Honor.

With respect to — it might be different if you — if you’re talking about treason.

Tokyo Rose, for example, was engaged in speech, but she was doing so with — with the purpose of aiding the enemy and the specific intent of betraying the United States.

And that’s what’s required.

And what the Supreme Court has said is that the — the aid has to be to–

John Paul Stevens:

But my question that I want to be sure you are focusing on–

David D. Cole:

–Yes.

John Paul Stevens:

–but in the issues in this very case–

David D. Cole:

Right.

John Paul Stevens:

–would they be different if we were now at war?

David D. Cole:

I think it would depend, Your Honor, because the — what — what treason requires is aid to the enemy, and aid might be in the form of speech.

But it also requires a specific intent to betray the United States.

And when you aid someone with whom we are at war, there is an — there may well be an intent to betray the United States.

There is no betrayal of the United States here.

And, number two–

Antonin Scalia:

Well, in a way there is.

What about — what about aiding organizations that are acting criminally, killing innocent civilians, with regard to one of our allies?

And we’re seeking to gain the assistance of these allies against those terrorists who aim their terrorism at us, and yet–

David D. Cole:

–Right.

Antonin Scalia:

–we — we are supposed to allow our citizens to assist the terrorist organizations that are directing their violence against them?

David D. Cole:

Well–

Antonin Scalia:

Why isn’t that a sufficiently serious reason for the government to do what it’s done here?

David D. Cole:

–I think the question, Your Honor, is there — is there any realistic nexus between writing an op-ed, advocating before Congress, urging a group to use lawful nonviolent means to resolve its disputes, and killing Americans?

And there just isn’t.

John G. Roberts, Jr.:

Well, you’ve picked — you’ve picked hypotheticals that are very easy for you.

What about personnel?

Is there a connection between providing personnel that participate in legal activity on behalf of a terrorist organization, and the organization can then say, well, because you are providing this personnel, we can take them out and shift them to bombmaking?

David D. Cole:

Right.

And — and — and I guess my answer to that would be it would depend upon whether the — the — what is being prohibited is speech.

If what is being prohibited is speech, I’m not sure that it would be permissible for the government to say we’re going to criminalize your speech, even though it’s advocating lawful activities, because–

John G. Roberts, Jr.:

Well, one of the things that’s being prohibited here that you challenge is providing personnel.

David D. Cole:

–That’s right.

And — and that’s exactly what De Jonge was essentially charged with.

And the Communist Party was, again, found to be engaged in criminal activity, to be a criminal syndicate, essentially, by the Oregon statute.

The Court didn’t question that.

At that time it was illegal to even advocate illegal activity.

He was charged with providing his person, personnel, by conducting a meeting under the auspices of the Communist Party and providing the lead speech there.

And the Court said, even though the argument was–

John G. Roberts, Jr.:

Well, is your argument limited to personnel that engages in speech, or does it cover personnel that — a nurse at one of the — if there are any, Hamas hospitals?

David D. Cole:

–Right.

Our argument, Your Honor, is — again, this is an as-applied challenge with respect to the particular speech that our clients seek to engage in, so it would not — it would not require the Court to decide whether any nonspeech assistance could be proscribed.

In fact–

Sonia Sotomayor:

–When — but the way you define the speech that you want protected is speech that is advocating some lawful activity.

David D. Cole:

–Right.

Sonia Sotomayor:

So what’s unlawful about teaching people medicine and how to cure people from infection?

David D. Cole:

If — if that were what they were doing, Your Honor, if it was teaching, then it would be protected by the First Amendment.

But if — I took Chief Justice Roberts’s question–

Sonia Sotomayor:

So you see no difference — you’re not advocating a difference in this case between training that could reasonably be used in terrorist activities, because teaching people how to care for the ill could be used to teach people how to care for the wounded.

David D. Cole:

–Right.

Right.

Sonia Sotomayor:

All right?

And the political speech that your group is advocating, i.e., the petitioning — you’re not willing to draw a distinction?

David D. Cole:

No, no.

I–

Sonia Sotomayor:

You are saying to us the case stands and falls on whether or not we accept that this statute regulates conduct as opposed to speech?

David D. Cole:

–No.

Justice Sotomayor, what I’m suggesting is, number one, the statute regulates speech.

It regulates speech because of what it conveys.

Therefore, the–

Sonia Sotomayor:

No, it regulates training.

And what — the question I asked you–

David D. Cole:

–Yes.

Sonia Sotomayor:

–was whether there was a way in your challenge, or whether you are advocating any difference in the nature of the speech, that it’s — this is an as-applied challenge.

David D. Cole:

Yes.

Exactly.

And that’s–

Sonia Sotomayor:

And so the question — because the only answer you have given us is if it’s lawful speech, it’s protected.

David D. Cole:

–No, I — I think — I think, Your Honor, that the answer — maybe I wasn’t clear in responding to Justice Alito.

But with respect to speech advocating solely lawful activity of the type at issue here, I think the connection between the government’s–

Sonia Sotomayor:

So give me an analytical framework to address that question.

David D. Cole:

–All right.

Well, I–

Sonia Sotomayor:

The government says under O’Brien even the speech that you want — forget about the tsunami aid speech.

Let’s just talk about the political petitioning speech, the petitioning for–

David D. Cole:

–Right.

Sonia Sotomayor:

–Is there a difference and under what analytical framework would we reach it?

David D. Cole:

Well, I think the question — the question at the — at the — at the bottom would be whether there is a sufficient connection between the speech which is being expressed and the government’s compelling interest.

And if — certainly there would be if it’s — meets Brandenburg.

David D. Cole:

I think there might be if it is specifically intended or known that it will further terrorist activity.

But where — with respect to our speech, there’s really no realistic likelihood that the speech that’s being expressed here will further–

Anthony M. Kennedy:

We have to be conscious of the white light.

I have just one — one question.

The old equity rule was that you don’t enjoin a criminal statute; you wait until something happens.

And the reason is then we have specific facts.

And if we said that here, you would say, oh, you’re chilling speech.

What’s your best case in the precedents of this Court for our entertaining an challenge that — this is not really — we usually talk about as-applied after the fact.

Coates, there was a conviction.

David D. Cole:

–Right.

Federal Election–

Anthony M. Kennedy:

What’s your — what’s your best case?

David D. Cole:

–Federal Election Commission v. Wisconsin Right to Life was a pre-enforcement, as-applied challenge to the provisions of the BCRA.

If I could reserve the rest of my time.

Ruth Bader Ginsburg:

Do you want to give an answer to the Taliban and the Al-Qaeda?

David D. Cole:

Oh, I’m sorry — I’m sorry, Justice Ginsburg.

I thought I was, and maybe — but the answer would be we are in a military conflict with the Al-Qaeda and the Taliban.

This Court has recognized that.

It’s authorized by the authorization to use military force.

Therefore, treason law might be applicable, number one.

Number two, it’s not clear that the Al-Qaeda engages in any lawful activities at all, and the — the principle this Court established with respect to the Communist Party, a group that clearly engaged in illegal activities of a very, very dangerous kind, but also engaged in lawful activities, is that that’s — that that the group has to be a dual-purpose group.

And here there’s absolutely no dispute that the Kurdistan Workers Party and the LTTE engage in a wide variety of lawful activities and that all our clients seek to do is support those lawful activities.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Cole.

General Kagan.

Elena Kagan:

With your permission, Mr. Chief Justice.

This may take some time.

[Laughter]

I’m sure it will on the other side, too.

Mr. Chief Justice, and may it please the Court: The material support statute is a vital weapon in this nation’s continuing struggle against international terrorism.

Elena Kagan:

The statute prohibits, in terms that ordinary people can understand, the provision of material resources, material resources of all kinds, to foreign groups that engage in terrorist acts that threaten the security of the United States or its citizens.

The statute does not prohibit in any way Petitioners’ independent advocacy.

Petitioners can say or write whatever they wish about the PKK or the LTTE, and all their activities both legal and illegal.

What Petitioners–

Sonia Sotomayor:

If a terrorist was arrested in the United States from one of these groups, would they be barred under the statute from serving as their attorney in a U.S. court?

Elena Kagan:

–Justice Sotomayor, if — if there are–

Sonia Sotomayor:

Isn’t that material support under the definition that you have been advocating?

Elena Kagan:

–Justice Sotomayor, I believe that that would be excluded from the statute — should be excluded from the statute, and indeed even Petitioners have never suggested–

Sonia Sotomayor:

No, but I’m asking you why.

Elena Kagan:

–Because I think that there the canon of constitutional avoidance would clearly come into play.

If there is a criminal defendant, even a civil defendant where there may be Sixth Amendment issues, where there may be due process issues, it would–

Sonia Sotomayor:

And so can I — can I ask you something?

I mean, part of the First Amendment is the right for the — to petition the government for redress of grievances.

Putting aside all of the other aid they are claiming, the tsunami aid, the training and other things, can the statute constitutionally be read to bar them from petitioning legitimate agencies, legitimate government agencies, to peacefully, using the words of the Constitution, to effect legal change?

Elena Kagan:

–It can–

Sonia Sotomayor:

And that — that’s part of what they’re claiming their speech involves–

Elena Kagan:

–The statute–

Sonia Sotomayor:

–training and doing that.

Elena Kagan:

–The statute cannot legitimately be read to — to include their independent advocacy.

But the statute, in fact, does not cover their independent advocacy.

Judge Fertig and all the rest of the Petitioners can lobby Congress, can lobby international organizations–

Sonia Sotomayor:

But that doesn’t–

Elena Kagan:

–as they see fit.

Sonia Sotomayor:

–answer — what is the right of the people peaceably to assemble?

Now, mind you, I understand this is the right of U.S. citizens in the United States.

But what in the First Amendment or even in this statute could justify Congress from barring individuals to petition peacefully United — world agencies or even U.S. agencies–

Elena Kagan:

Again, the statute–

Sonia Sotomayor:

–for the recognition of a — of a legitimate goal?

Elena Kagan:

–Again, the statute does not prohibit the Petitioners from petitioning peacefully.

What the statute does is to prohibit Petitioners from giving support to foreign terrorist organizations in their ability to petition international organizations.

Elena Kagan:

And that’s a very different thing.

It’s a different thing for several reasons.

First, remember that these are foreign organizations, and as several of you have suggested, the ability of Congress and of the Executive Branch to regulate the relationships between Americans and foreign governments or foreign organization has long been acknowledged by this Court.

It was acknowledged in cases like Regan and Zemel and others, not only with respect to nations with which we are at war, but with respect to foreign nations and other entities as well — foreign nationals.

And in fact, the Petitioners’ supposed First Amendment claims really are not speech claims at all.

They are all association claims.

Petitioners can do whatever independent advocacy they wish.

What Petitioners cannot do is to provide support to a foreign terrorist organization.

And there, indeed, the government’s position is that the Association Clause does not extend that far to give Americans, American citizens, the ability to deal in whatever way they wish with foreign nations–

Ruth Bader Ginsburg:

But it isn’t–

Elena Kagan:

–or foreign organizations.

Ruth Bader Ginsburg:

–whatever way they wish.

They’re making clear that it’s only in connection with lawful activity of the group, and indeed it’s to train them in using lawful means to achieve their end.

And I thought you went further than saying there has to be strictly independent advocacy.

You recognized in your brief that they could meet with members of these terrorist organizations.

They could meet and communicate with them, but they can’t communicate advice on how to pursue their goals through lawful means?

Elena Kagan:

Justice Ginsburg, you’re exactly right that, in addition to engaging in independent advocacy, Petitioners can meet with members of the foreign terrorist organizations, can join the foreign terrorist organizations, that membership is not prohibited by the statute.

What the statute does prohibit is active support of all kinds, both material–

Anthony M. Kennedy:

Can they — can they advocate to the association?

There are many kinds of advocacy.

You can advocate to the world that they are right.

Can you advocate to the association that you should change your ways, that you should use Lexis to find international law precedents, et cetera?

Elena Kagan:

–Absolutely, Justice Kennedy.

If — if Judge Fertig or the other Petitioners wanted to say to these organizations, you should change your ways, nothing in the statute–

Anthony M. Kennedy:

And suppose the organization’s board of directors agrees with that and wants them to address the general membership on that point, and they are doing it with the blessing of the organization.

Elena Kagan:

–Justice Kennedy, I want first — I’m going to answer your question, and I’m going to say that that’s still not covered, but I want also to make a general point, which is that this Court can exhaust all the hypotheticals that it has in this case, and it will be irrelevant to the case at hand, and that would be so for two reasons.

First, because with respect to overbreadth, all of those uncertain or even unconstitutional applications will be but a thimbleful, compared to the ocean full of completely legitimate applications of this statute.

And, second, because those hypotheticals have nothing to do with this case.

Mr. Cole said several times, I heard, this is an as-applied challenge, this is an as-applied challenge.

And to the extent that the Court thinks that there are certain categories of activity that the statute could not prohibit that would raise serious constitutional concerns — which I must say I — I disagree with, but there may be some.

Elena Kagan:

To the extent that that’s true, the Court can — can put those off to another day, another–

Stephen G. Breyer:

Well, wait.

They want to apply.

They want to do–

Elena Kagan:

–I’m sorry.

Stephen G. Breyer:

–They say in this case that they want to provide training in the issue of humanitarian international law, and they want to provide training and expert advice and assistance in respect to how you petition the UN.

Now focusing on those two things, and going back to Justice Sotomayor’s question, why — what is the government’s interest in the following?

Under O’Brien or any other test, you look at it and say, does teaching have a First Amendment interest — training?

And what about teaching about advocacy?

That’s what they are doing, teaching about a certain kind of advocacy.

Yes.

Therefore there is a First Amendment interest implicated, seriously.

Now, when that is seriously implicated, there is also a government interest, on the other side, in not having terrorism.

But there is a less restrictive alternative which they suggest, that in that situation, what they’re entitled to read this statute as saying is that, if they believe and a person reasonably would believe that their teaching, assistance, training, would not significantly aid this organization in its unlawful ends, then they are not guilty.

Now, what is the government’s interest in not accepting that interpretation?

The First Amendment is hurt; there is an interest; but there is what they describe as — and what I have narrowed — a less restrictive way of going about it.

And they have to be reasonable in what they think.

Now, what’s the objection to that?

Elena Kagan:

Justice Breyer, I think the objection is exactly what Justice Kennedy suggested with his hypothetical, because his hypothetical is actually perfectly aligned with this case.

You can’t give tsunami aid, but the question is: Can you instruct these organizations about how to get tsunami aid?

And then these organizations get tsunami aid, and they, in fact, use that aid in such a way that they also have more money to–

Stephen G. Breyer:

I’m sorry.

I’m not talking about tsunami aid.

I am talking about the instance where the teaching is itself teaching about how to do something, and that something is the kind of thing that the First Amendment protects.

Elena Kagan:

–Well, that something, which is the teaching the foreign terrorist organization how to petition international bodies in order to get various kinds of support, financial or otherwise, that will strengthen those organizations in everything that they do.

What Congress decided–

Stephen G. Breyer:

Fine, and if a reasonable person would know that, that it’s going to help them, then it is unlawful, if it’s going to help them and a reasonable person would think it was going to help them in their unlawful activities.

But we’re not–

Elena Kagan:

–Congress was the reasonable person here.

And Congress reasonably decided that when you help a terrorist — foreign terrorist organization’s legal activities, you’re also helping the foreign terrorist organization’s illegal activities.

Elena Kagan:

Hezbollah builds bombs.

Hezbollah also builds homes.

What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.

That’s the entire theory behind this statute, and it’s a reasonable theory for exactly the kinds of reasons that Justice Kennedy was suggesting by that hypothetical.

Samuel A. Alito, Jr.:

And doesn’t that lead to — kind of logically lead to the conclusion that mere membership could be prohibited?

Could you explain how someone could be a member of one of these organizations without providing a service to the organization?

Simply by lending one’s name as a member — that might be regarded as a service.

If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you’d be providing a service to the organization.

Elena Kagan:

I — I actually don’t think — I mean, Congress clearly did not mean to include that.

And I think that the normal words that Congress used make that pretty clear.

When you think about personnel, when you think about training, when you think about expert advice and assistance, even when you think about service, you — the notion that I am serving a terrorist organization simply by the act of membership I think would not be correct.

And–

Antonin Scalia:

Why do you say Congress clearly did not intend that?

You know, I would have guessed that you are providing a service or personnel when you make yourself a member of the organization.

Why do you say Congress clearly did not intend it?

Elena Kagan:

–That is certainly not the way the government reads the statute, and that’s not the way the government has ever read the statute.

And, indeed, the government, as we discussed in our brief, believes that there are certain kinds of joint activities that would be allowed by the statute.

Now, that’s not to say that Congress could not have gone farther.

In this specific context, where one is regulating dealings with a foreign organization, it’s possible that Congress could have gone further.

But we understand the statute and — and I think there’s a — I think, quite reasonably, as providing only material support, a true service, something that will help the foreign organization in whatever it does.

Stephen G. Breyer:

–Well, but petitioning the United Nations — and that’s what you are teaching them — does not, on its face, seem to me to be something that reasonably you would think was going to aid them in their unlawful objectives, but for the realm of ideas.

Now–

Elena Kagan:

This would be–

Stephen G. Breyer:

–and then Congress put a thing in here which says: Don’t construe this statute in a way that will abridge First Amendment rights.

So it’s aware of the problem of First Amendment rights.

Elena Kagan:

–And I think you are exactly right about that.

Stephen G. Breyer:

And is there any evidence that something like that would, in fact, but for the realm of ideas, help this organization commit its terrorist acts?

Elena Kagan:

Justice Breyer, I believe that the legislative record is quite clear that Congress thought that various kinds of aid given to the legal and legitimate activities of the terrorist organization, in fact, further the aims of the — in fact, further the illegal and illegitimate goals.

Congress made findings about the fungibility of these resources.

Congress said over and over that these organizations have no firewalls, no organizational firewalls–

Ruth Bader Ginsburg:

But you — but you–

Elena Kagan:

–no financial firewalls.

Ruth Bader Ginsburg:

–You say that the — not only the membership, but they can meet and they can discuss.

And I don’t understand the line between meeting with these terrorist organizations, discussing things with them, and instructing them on how they can pursue their goals through lawful means.

Elena Kagan:

Justice Ginsburg, I agree with you that there may be some hard cases that are at the borderline between the two, as there are in most statutes; that there may be hard cases.

This is not one of them.

And I think it would — it’s very instructive for the Court — I’m sure you’ve all done this — but to actually go back and look at the Petitioners’ complaints in this case and look at Judge Fertig’s declarations in this case, because what they show is the extensiveness of the activities that they — of the services that they wish to offer to these foreign terrorist organizations and the value that those services are going to give those foreign terrorist organizations.

John G. Roberts, Jr.:

General, you’ve talked about — there has been a lot of discussion about the legitimate activities allowing — facilitating illegitimate activities by freeing up personnel and all that, and legitimizing the group.

Is that an argument you’ve made before this Court or below?

I looked at your briefs, and I thought it’s almost all about: This is O’Brien, this is conduct, this is not speech.

I didn’t see the argument that we’ve spent a lot of time talking about, which is the legitimate activities allow the illegitimate activities to take place.

Elena Kagan:

No, I believe we — we have, Mr. Chief Justice, although if we didn’t emphasize it enough, I — I will plead error, because I think that it is an — a crucial point to this case.

But I think in the part of our brief–

John G. Roberts, Jr.:

Do you have — I don’t mean to — do you have particular references to where in your brief you made the argument?

Elena Kagan:

–Yes.

In the part of our brief where we discuss the application of the O’Brien standard, and we say what are the governmental interests there.

John G. Roberts, Jr.:

Yes, I know.

It seems to me your case is all about O’Brien.

I’m not sure you have an answer to whether or not strict scrutiny is satisfied.

If we disagree with you and think that some of this activity is speech, I don’t see the argument that you’ve presented on strict scrutiny.

Elena Kagan:

I think that that’s right, Mr. Chief Justice, that we have not specifically addressed the strict scrutiny argument.

I think this would pass a strict scrutiny standard, but I actually think that to the extent that the Court thought a strict scrutiny standard were appropriate, a remand might be in order, that no Court has ever actually gone off on that ground, that–

Samuel A. Alito, Jr.:

Why is O’Brien the correct standard?

How can you argue that training and providing advice is not speech?

Elena Kagan:

–Justice Alito, I think that the — the training and advice clauses are, of course, part of a statute which regulates material support and resources of all kinds, and to the extent that what you’re saying is, you know, training and advice, those are always speech restrictions if you find them in a statute, I think that that’s not right.

I mean, if you think about the range of things that training can involve: Training how to build a bomb, training how to fly a plane, training how to use sophisticated communications equipment, and training how to engage–

Sonia Sotomayor:

How about training to–

Ruth Bader Ginsburg:

What’s involved here — I think they said that they want to train them how to do lawful things, how to pursue their goals in a lawful, rather than a terrorist, way.

And that is speech.

It is not conduct.

Ruth Bader Ginsburg:

They want to engage in advocacy of peaceful means of achieving the goals of these groups.

Elena Kagan:

–Congress, of course, allowed them to engage in all the advocacy that they wish on behalf of these groups.

Indeed, Congress did not prohibit–

Ruth Bader Ginsburg:

But they want to communicate, and you say they can communicate.

And I still am having trouble with the line of what they can communicate and what they can’t.

Elena Kagan:

–Well, I think if they are engaged in just discussion of ideas, this statute does not prohibit that.

What the statute prohibits is the provision of actual support, services to the organizations that the organization can use in its activities, both legal and illegal.

Anthony M. Kennedy:

Do you stick with the argument made below that it’s unlawful to file an amicus brief?

Elena Kagan:

Justice Kennedy–

Anthony M. Kennedy:

I think I’m right in saying it that that was the argument below.

Elena Kagan:

–Yes, I think that would be a service.

In other words, not an amicus brief just to make sure that we understand each other.

The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

That’s the kind of service that–

John Paul Stevens:

Then it seems to me that your opponent’s argument here today is prohibited.

Elena Kagan:

–No, no, no, because Petitioners here are arguing for themselves.

What I’m suggesting is Petitioners can do all the advocacy they want, can engage in courts in any way they wish.

The only thing that’s prohibited is if the PKK hired a lawyer to write an amicus brief on its behalf.

At that point–

Sonia Sotomayor:

–General, I understand, I could be wrong, that many petitioners or respondents go out to the industry and say we need some amicus briefs, and they flood in from all sides.

Would that be illegal?

Because the — the organization–

Elena Kagan:

–Well, if the PKK–

Sonia Sotomayor:

–came out and said we need a brief — amicus briefs from law professors?

From–

Elena Kagan:

–If — if the PKK or the LTTE or Al-Qaeda or any of the other organizations on this list said we want amicus briefs, and somebody provided an amicus brief–

Sonia Sotomayor:

–Without pay.

Elena Kagan:

–for themselves — for themselves, there would be no problem.

The only problem is if somebody drafted an amicus brief–

Sonia Sotomayor:

How can we can ever separate–

Elena Kagan:

–for the PKK itself.

Sonia Sotomayor:

–Under the definition of this statute, teaching these members to play the harmonica would be unlawful.

You are teaching — training them in a lawful — in a specialized activity.

So how do we — there has to be something more than merely a congressional finding that any training is bad.

Elena Kagan:

Well, I think here we have the congressional definition of what kind of training is bad, and that definition focuses on training in specialized activities.

Now, you say, well, maybe training a — playing a harmonica is a specialized activity.

I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.

Antonin Scalia:

Well, Mohammed Atta and his harmonica quartet might tour the country and make a lot of money.

Right?

Elena Kagan:

I’m sorry.

I–

[Laughter]

But I don’t mean to make fun of the hypothetical at all, Justice Sotomayor, because I think you’re raising an important point, but it’s really a point that goes to how to sensibly read a statute.

What Congress did, when in response to some lower court decisions, it further clarified and defined the word “training” and the word “expert advice and assistance”, I have to say I think that Congress’s own responses here — I mean, they — Congress was both responsive and responsible, that it really took into account court decisions and tried to go back to the statute and–

Stephen G. Breyer:

Well, in that — on the — just forget the harmonica for a second; I’m more worried about the lawyer.

You’re saying that a — a group abroad which may have some American citizens in it — let’s assume they do — want to hire a lawyer.

And this lawyer is supposed to file some amicus briefs and do other activities.

You’re saying Congress has forbidden that in this statute, and that’s constitutional?

Elena Kagan:

–Well, first of all, Justice Breyer, I want to sort of repeat the — what I — what I said about the need to find a substantial amount of uncertain or unconstitutional applications, or with respect to any kind of facial challenge or with respect to this challenge–

Stephen G. Breyer:

But I want to know if that’s what you’re saying, what I just said: that an organization has American citizens, engages in terrible stuff, but they are not entitled under the Constitution to have a lawyer in the United States who does legal work like filing amicus briefs.

Elena Kagan:

–To the extent that there is any constitutional claim that they would be entitled to representation, whether it’s a Sixth Amendment claim or a due process claim that might exist in criminal cases, that might exist in habeas cases, that might exist in civil cases, then the government believes that the statute should be read so as not to include that.

Antonin Scalia:

Why do these hypotheticals make any difference?

This is an as-applied challenge.

We should look to the activities that this organization wants to conduct, unless — unless you think that there is an overbreadth problem.

And that seems to me — I’m not even sure that the Petitioners assert that here.

Clearly, the — the broad scope of this statute is — is constitutional, and whatever aspects of speech it may run afoul of are — are minimal.

That being the case, of what relevance are these hypotheticals?

It’s a lot of fun, and it’s very interesting, but we can deal with all of that when the situations arise, can’t we?

Elena Kagan:

Well, I — I do think that the answer to that is yes, Justice Scalia.

Ruth Bader Ginsburg:

The answer on the other side is: All we want to do is speak about lawful activities.

Ruth Bader Ginsburg:

We’re not supplying any guns, any communication equipment.

We just want to speak about lawful activities.

And I go back to my failure to understand your line between, yes, you can communicate with these people, but you can’t communicate about going about their aims through peaceful means.

Elena Kagan:

No, I think my line is you can communicate, but you can’t provide material support.

You can’t make a donation, whether it’s tangible or intangible.

John G. Roberts, Jr.:

I’m sorry.

You can communicate on — I don’t mean to interrupt.

But you can communicate on your own, but you can’t communicate with them?

Elena Kagan:

No–

John G. Roberts, Jr.:

Oh, okay.

Elena Kagan:

–you can communicate with — on your own, for sure.

Independent advocacy of all kinds is not touched by this statute.

In addition to that–

Anthony M. Kennedy:

But Justice Ginsburg’s question is: Can you advocate peaceful means?

And let’s assume that if they embrace peaceful means, they get more interest in their organization, the organization becomes stronger for all purposes.

Can you do that?

That was Justice Ginsburg’s question.

Elena Kagan:

–Can you say to an organization: Look, you guys really should lay down your arms.

And two things–

Anthony M. Kennedy:

And here’s how to do it.

And here’s how to go to the U.N., and here’s how to apply for aid, and here’s how to file an amicus brief.

Elena Kagan:

–Well, now you can’t, because when you tell people here’s how to apply for aid and here’s how to represent yourself within international organizations or within the U.S. Congress, you’ve given them an extremely valuable skill that they can use for all kinds of purposes, legal or illegal.

And it’s not sufficient for the Petitioners–

Ruth Bader Ginsburg:

So you can — you can communicate, but the communications are censored.

That’s — you said you can meet with — you can be a member, you can attend meetings, you can discuss things, but there are only — there’s a certain point at which the discussion must stop, right?

Elena Kagan:

–The discussion must stop when you — when you go over the line into giving valuable advice, training, support to these organizations.

At that point–

John Paul Stevens:

May I ask a sort of basic question that I’ve had trouble with throughout the whole argument?

We’re talking about whether this is an as-applied challenge or on its face.

And what the district judge did was hold part of the statute unconstitutional as being too vague: the words “training” and “advice”, et cetera.

John Paul Stevens:

Why isn’t that a facial decision?

Elena Kagan:

–Well, the — both the lower courts — I think the district court and the court of appeals, I think, had a kind of confused analysis here, which is that they said, well, it’s vague as applied.

The court of appeals specifically said it’s not vague on its face, and there is no facial vagueness claim here, and yet they appeared to incorporate aspects of overbreadth analysis into their as-applied claim.

I think–

Antonin Scalia:

Unless you’re in an overbreadth situation, a vagueness challenge can be an as-applied challenge.

A statute can be vague as applied to certain conduct, although the core conduct that it covers is clearly covered.

Elena Kagan:

–No, that’s–

Antonin Scalia:

We have cases like that.

Elena Kagan:

–That’s exactly right, Justice Scalia, and — and — and with respect to the as-applied vagueness claim, the government’s position is there’s — there’s — there — it’s not vague, because you can go through these declarations, you can go through these complaints, and you can know exactly what’s included within–

Anthony M. Kennedy:

But — but I have the same–

Elena Kagan:

–the statute and what’s not.

Anthony M. Kennedy:

–I had the same question as Justice Stevens.

It’s a very odd as-applied challenge because there hasn’t been a prosecution.

And vagueness as applied, I think as Professor Cole can answer, is, it seems to me, if, you know, that it applies, it isn’t vague.

I don’t understand that, but–

Elena Kagan:

Well, it–

Anthony M. Kennedy:

–I — I can’t — I can’t think of a case in which the Court, pre-prosecution in a declaratory judgment, has said that it’s improper as applied to certain things.

Or maybe I’m wrong.

Maybe I am missing some case.

Elena Kagan:

–No, I — I — I don’t think you are wrong, Justice Kennedy, and especially with respect to a case where all the activity is — clearly fits in one box or the other.

In other words, you can go through the complaints, you can go through the declarations, and know exactly what is covered and what’s not covered.

All the independent–

John G. Roberts, Jr.:

Well, but that’s — I’m not — I’m not sure that’s right.

I mean, expert advice or assistance — I don’t know sitting down that I could tell, you know, how to advocate for peaceful, you know, resolution or whatever.

Is that expert advice?

Is that specialized knowledge?

And I understand training, service, personnel, but that one’s a little hard to–

Elena Kagan:

–Well, as I said, Mr. Chief Justice, there will be some hard cases, there always are when it comes to applying statutes.

The question is never are there hard cases.

John G. Roberts, Jr.:

–No, my — my point is that this–

Elena Kagan:

The question is the indeterminacy.

John G. Roberts, Jr.:

–Yes.

My point is that even knowing what they intend to do, it’s kind of hard to decide whether that’s based on specialized knowledge or not.

Elena Kagan:

I think it — it actually is pretty clear in this case.

If you read the declarations, if you read the complaints, the expertise of these parties actually shines through.

Judge Fertig is proud of his expertise, justifiably so.

He has–

Ruth Bader Ginsburg:

Does this — what — what these plaintiffs are seeking to do — does it have any resemblance to the 150 prosecutions that you have brought under this Act?

It was my understanding that those were for supplying weapons, supplying other equipment.

Are there any prosecutions that are — that aim at training to pursue the organization’s aims through peaceful means?

Elena Kagan:

–Justice Ginsburg, I think that this is not the typical case.

This is, of course, a case that might never have reached this Court, except that it was brought as a declaratory judgment action.

For the most part, what the government prosecutes are cases which involve a wide variety of support to foreign terrorist organizations.

John Paul Stevens:

Specifically, does this particular man have to be prosecuted?

Elena Kagan:

I’m sorry?

John Paul Stevens:

Is this particular individual in risk of being prosecuted if he makes the speech to the United Nations?

Elena Kagan:

Justice Stevens, I do believe that this individual can make whatever speeches he wants at the United Nations.

To the extent that he is acting as a representative or as an agent of the PKK, he does fall within the contours of the statute.

That’s a different thing.

John Paul Stevens:

And is there evidence that he would be prosecuted if he–

Elena Kagan:

Of course, that’s a different thing as to how prosecutorial judgment is used to decide which are the high-priority cases and which are the low-priority cases.

John Paul Stevens:

–But in essence, this is an action to enjoin a potential prosecution against somebody for making a potential speech?

That’s really what we are fighting about, I think.

Elena Kagan:

Again, the government did not bring this action.

Judge Fertig and the Petitioners brought this action to try to get a declaratory judgment.

As applied to them, the statute indeed covers their various efforts or proposed activities of being an agent of, of representing the PKK and the LTTE, that falls within the statute and I think makes the as-applied claim here not vague at all.

John G. Roberts, Jr.:

Thank you, General.

Mr. Cole, we’ll give you 5 minutes.

David D. Cole:

Thank you, Mr. Chief Justice.

I want to start by addressing the question of strict scrutiny.

David D. Cole:

The — the — Justice Kennedy, you asked, and a number of the Justices asked, doesn’t it make a difference that what they’ve done is prohibited a wide range of conduct and just some of that is speech?

Well, that’s precisely an accurate description of the breach of the peace statute in Cohen v. California.

It forbade breaches of peace through loud noises, through horse racing in the streets, through any kind of offensive conduct.

But when California applied that statute to the words on Mr. Cohen’s jacket and then argued because we are not interested in the words on his jacket, we are interested in preserving the peace, however it’s breached, O’Brien should apply, the Court said no.

We deal here with the conviction resting solely upon speech, not upon any separately identifiable conduct.

Anthony M. Kennedy:

I — I agree.

And that was as applied to a conviction.

David D. Cole:

That’s right.

Anthony M. Kennedy:

I just haven’t seen an as-applied challenge on declaratory relief.

The government doesn’t seem to object to that procedure.

David D. Cole:

No.

Well, the government doesn’t object because there are actually many cases, and FEC v. Wisconsin Right to Life is only the most recent.

But, again, the notion is somebody who is told you can meet with a group, you can discuss with a group — in fact, the House report says that you are free to speak with and on behalf of a designated group.

But then you have a statute that says, if you advocate in any coordinated way, if you tell them anything that’s derived from specialized knowledge, if you tell them anything of specific skill, you’re — you’re engaged in a crime and you could go to jail for 15 years.

That’s why the Humanitarian Law Project came to me.

They said: We’ve been doing this kind of lawful activity.

We think it’s our right, but we’re not going to risk going to jail for 15 years to do it.

The government has spent a decade arguing that our clients cannot advocate for peace, cannot inform about international human rights.

Sonia Sotomayor:

If O’Brien applies, what remains of your case?

David D. Cole:

If O’Brien applies, then I think the Court would still be applying the scrutiny that asks, is there a reasonable fit — is there a reasonable fit between the specific speech that’s at issue here, speech on issues of public concern, advocating only lawful activity, and the — and that the government legitimately seeks to further, which is stopping support for terrorism?

Now–

Sonia Sotomayor:

That analysis of the activities that you are proposing has not been done by the lower courts, correct?

David D. Cole:

–Well, the lower courts struck–

Sonia Sotomayor:

They — they haven’t — they struck it on vagueness grounds, but none–

David D. Cole:

–Right.

The–

Sonia Sotomayor:

–none of the courts either subjected this to strict scrutiny or the reasonable fit–

David D. Cole:

–No, and, in fact, the government has never even attempted to defend the statute under strict scrutiny, because I think it clearly could not satisfy strict scrutiny.

And under this — under Cohen, strict scrutiny is what must be applied here.

In addition–

John G. Roberts, Jr.:

Well, why don’t — why don’t we remand it to the lower courts to apply strict scrutiny if we agree with you that O’Brien doesn’t apply here?

David D. Cole:

–I think it would be appropriate to remand for — for application of strict scrutiny if you read it that O’Brien doesn’t apply.

O’Brien also doesn’t apply if the statute is not content neutral.

This is a statute that doesn’t bar all aid; it doesn’t even bar all speech.

It permits unlimited provision of religious materials, even if they advocate jihad, but proscribes any secular material, even if they are advocating peace.

So — so there are — the — the lower court, again, found that the statute was vague, that our clients were reasonably chilled, that they had a right to engage in this activity.

I think you can reach that result either through vagueness, or you can reach it by applying strict scrutiny, or I think because the fit is so poor here, and because — and the vagueness, in fact, undermines the fit, because people are chilled from engaging even in speech that the government doesn’t want to prohibit.

All right, if I am told you — you — you’ll go to jail if you tell them anything that’s derived from special–

Sonia Sotomayor:

–Mr. Cole, there were congressional findings that money is fungible first for terrorist groups, like — that if you give them money for legitimate means, that it’s going to be siphoned off and used for illegitimate means.

David D. Cole:

–Right.

Sonia Sotomayor:

So, why isn’t that enough, either under strict scrutiny or a lesser standard, reasonable fit standard, to say that you can’t teach these groups how to get money?

David D. Cole:

Right.

Well, one — well, we’re not — we’re not teaching them how to get money.

We’re seeking to teach them how to advocate for lawful human rights or–

Sonia Sotomayor:

No, one of your — one of your stated aims, at least of one of the groups is to teach them how to get aid for tsunami relief.

David D. Cole:

–Right.

That — that claim has been mooted because the LTTE is no longer — has no role in Sri Lanka.

So what’s left is solely — has nothing to do with money.

Secondly, Congress only made a finding about money.

At the same time that it made a finding that money is fungible, it said this is a statute — and this is from the House report — only affects one’s contribution of financial and material resources and does not prohibit speaking in concert with and on behalf of designated groups.

Well, that suggests that Congress thought that what our clients want to do is — should be protected.

John G. Roberts, Jr.:

Thank you, counsel.

David D. Cole:

And we have suggested that you should, therefore, interpret the statute in — consistent with that.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.