Supreme Court Upholds Criminal Ban on Teaching International Law

That’s a remarkable statement, but it actually is true. Yesterday the Supreme Court in Holder v. Humanitarian Law Project addressed the question of whether a federal statute criminalizing the provision of “material support” to terrorist organizations was constitutional. A humanitarian NGO group wanted to train members of two terrorist organizations, the PKK and the LTTE, to become more non-violent and use peaceful means to resolve their disputes. That included training them about international law.

But the Court—by a vote of 6 to 3—upheld the restriction, concluding that providing services of this nature contravened the statute and that that statute was constitutional.

Plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities…. [T]hose activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engag[ing] in political advocacy on behalf of Kurds who live in Turkey”; and (3) “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief.”…

The Court concluded that the statute was not unconstitutionally vague, because teaching international law clearly fell within the meaning of the words “training” and “expert advice or assistance.”

Most of the activities in which plaintiffs seek to engage readily fall within the scope of the terms “training” and “expert advice or assistance.” Plaintiffs want to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve dispute.”… A person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute’s definition of “training” because it imparts a “specific skill,” not “general knowledge.”

The Court also concluded that teaching international law to members of the PKK and the LTTE did not violate First Amendment free speech:

Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B depends on what they say. If plaintiffs’ speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge”—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred. On the other hand, plaintiffs’ speech is not barred if it imparts only general or unspecialized knowledge.

It seems odd, but any effort to train members of terrorist organizations to renounce their ways and pursue the path of peace is prohibited by federal statute.

Not surprisingly, Justice Breyer—joined by Justices Ginsburg and Sotomayor—wrote a scathing dissent, and singled out the criminalization of teaching international human rights law in particular:

[T]he majority discusses the plaintiffs’ proposal to “‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes.’” The majority justifies the criminalization of this activity insignificant part on the ground that “peaceful negotiation[s]” might just “bu[y] time . . . , lulling opponents into complacency.” And the PKK might use its new information about “the structures of the international legal system . . . to threaten, manipulate, and disrupt.” What is one to say about these arguments—arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try?…

The risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even informed) speculation. Hence to accept this kind of argument without more and to apply it to the teaching of a subject such as international human rights law is to adopt a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment.

I am not a First Amendment scholar, but I think the dissent has the better argument. Applying this statute to impose a criminal ban on teaching members of terrorist organizations about the rule of law, or international human rights, or the non-violent writings of the Sermon on the Mount, Mahatma Gandhi, or Martin Luther King, is just a remarkably inappropriate content-based restriction on speech.