Ken Klukowski

Can the government forbid you from talking with terrorists? The Supreme Court heard arguments in an antiterrorism case presenting this First Amendment issue. The War on Terror just met the Bill of Rights, and now the justices need to sort them out.

On February 23 the Court heard arguments in Holder v. Humanitarian Law Project (HLP). At issue is a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA) that makes it a federal felony for any American to provide “training,” “expert advice or assistance,” or “service” to any group that the U.S. government designates as a terrorist organization. This case turns on what exactly that law means.

As its name suggests, HLP is a liberal organization focusing on international law, opposing military action, and human rights. It wants to open a dialogue with a group that the U.S. labels terrorist. But to its credit, rather than break the law, HLP had the good sense to bring a lawsuit asking a federal court to strike down the relevant part of AEDPA.

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HLP argues that the law is “void for vagueness.” If a law is so vaguely-worded that a person who does due diligence and obtains legal advice still can’t tell exactly what the law makes illegal, then it’s a violation of due process to punish that person. In other words, the Constitution doesn’t allow the government to punish a person for breaking the law when the person did everything a responsible person should do to figure out what the law is, but the law is worded so vaguely that people can’t figure out what it means.

In the oral arguments, not a single justice seemed to buy HLP’s argument that talking with this terrorist group constitutes “political speech” such that it would receive the highest protection of the First Amendment (like the speech at issue in Citizens United v. FEC, which the Court decided in January).

Justice Antonin Scalia rejected that argument, saying Congress “hasn’t criminalized speech. It has criminalized providing aid and assistance to these organizations. Most of that … is not in the form of speech, but it happens to include speech ….”

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.