[video playback]

0:00:15.8 Speaker 1: We'll hear argument first this morning in case 08-1498, Holder v. Humanitarian Law Project and the cross-petition.

0:00:25.3 Leon: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Holder v. Humanitarian Law Project. This case was brought by the law project to preemptively challenge a law that would make it illegal to provide material support or resources to groups that the US Government classifies as terrorist organizations. Sounds reasonable enough, but look a little closer and...

[video playback]

0:00:39.7 Speaker 1: They've written the law so broadly that it criminalizes pure speech, the core of what the First Amendment is designed to protect.

0:00:40.6 Leon: The result of the law is that lawyers cannot provide representation to organizations on the government's terrorism list, even when the lawyer's work is meant to push the groups towards more peaceful and legal solutions. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:02.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have destroyed our civil rights like an eclipse destroying Donald Trump's retinas. I'm Peter. I'm here with Michael.

0:01:18.1 Michael: Hey, everybody.

0:01:18.9 Peter: And Rhiannon.

0:01:19.8 Rhiannon: Hi. Not my retinas. I'm different.

0:01:22.4 Michael: Yeah.

0:01:22.5 Rhiannon: I listen to medical science and astronomical science as well.

0:01:29.1 Michael: Yeah.

0:01:30.5 Peter: This is not based on anything, but I do believe that he looked at this one, too. I believe that he looked at all of them.

0:01:35.8 Rhiannon: We don't have the hard evidence, we don't have the video at. Yeah. The White House of the president on the balcony staring up directly into the eclipse, but I believe in my heart that it did happen again.

0:01:46.5 Peter: My sincere belief is that he did it the first time. Everyone made fun of him. He did not have any adverse effects, and that convinced him that, in fact, common wisdom is wrong, and you can look at eclipses, and then he did it again this time even more.

0:02:01.3 Michael: Wait. So you think Trump did it again? Rhiannon, you think Biden did it as well?

0:02:05.7 Rhiannon: Oh, no. I meant Trump did it again, but from an obviously not at the White House. Yeah. I mean, I wouldn't put it past Biden. He's a dumb fuck, too.

0:02:15.5 Michael: Is that you, Jill? Staring directly at the eclipse.

0:02:19.7 Peter: He had a whole conversation with it.

[laughter]

0:02:23.0 Speaker 1: All right. Today's case, Holder v. Humanitarian Law Project. This is a case about the Patriot Act and terrorism and also free speech. As you probably know, the Patriot Act was a piece of legislation passed in the wake of 9/11, ostensibly to combat terrorism, though it is most famous for being a little white on its respect for civil liberties.

0:02:50.5 Rhiannon: Right. Yeah, you could say that.

0:02:52.0 Peter: So it's against the law to provide a material support to designated foreign terrorist organizations. And then the Patriot Act comes along and goes even farther than that and says that this includes providing training or expert advice or assistance to terrorist organizations. Now the Humanitarian Law Project and some other plaintiffs brought this to court on the grounds that it potentially violates the First Amendment.

0:03:20.2 Peter: "They pointed out that they provide material support," to the Kurdistan Workers' Party, the PKK, and the Liberation Tigers of Tamil Eelam or the Tamil Tigers, both designated terrorist organizations. But the support that they provide to those organizations is decidedly nonviolent. In fact, they are trying to train them on peaceful conflict resolutions, such as how to bring human rights violations before the UN.

0:03:47.7 Peter: So they're saying, "hey, we're not actually providing support to terrorism. We have a right to free speech and free association as long as we're not actually facilitating violence. So this law is unconstitutional." But the Supreme Court in a six to three decision says, no, terrorist groups are bad guys. And you can't be friends with bad guys.

0:04:10.5 Rhiannon: Yeah. Yeah.

0:04:11.6 Michael: Can't do anything with bad guys. That would make them less bad. That's crazy.

0:04:15.7 Rhiannon: If I say they're bad, they're bad. If you do anything with them, that means you're bad. We said no. But that's what this comes down to.

0:04:24.0 Peter: Right. We're not discussing this any further. Young man.

0:04:31.3 Rhiannon: Let's jump right in here. There's some terrorism. Let's jump right in here. Like Peter said, there's a lot happening in this case. The boys are laughing while I'm saying this because I started this sentence by saying this case was about terrorism.

0:04:48.1 Peter: Yeah It's terrorisms.

0:04:48.2 Rhiannon: It's about speech. Okay.

0:04:50.8 Michael: Rhi's cancelled. Out of here.

0:04:54.4 Peter: No, it is about me being terrorized by John Roberts in many ways.

0:04:58.6 Michael: Yes.

0:04:58.7 Rhiannon: Absolutely. Yeah. This was terrorism to my brain to read this opinion. Absolutely. OK, so let's start out by taking us back to the mid '90s. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. That's AEDPA. It's known as AEDPA. And so AEDPA made it illegal to provide material support to foreign groups that are designated by the United States government as terrorist organizations.

0:05:26.9 Rhiannon: So who decides who's a foreign terrorist organization? That's the secretary of state. And the law says that giving material support to any of those foreign terrorist organizations is a crime. So what does material support mean? That is defined pretty broadly. And the Patriot Act, which was passed some years after AEDPA, expanded the definition of material support even more. Material support is defined as giving funds and tangible goods to an organization. Obviously, literally material support. But it also includes any, "service, expert advice or assistance, training and personnel."

0:06:07.9 Rhiannon: Now, we'll talk about all of this in a minute, but like a lot of those things can be applied to speech, right? Speech can be assistance. So under the law, individuals face up to 15 years in prison for providing any of this material support to foreign terrorist organizations, even if their work is intended to promote peaceful, lawful objectives. So enter the Humanitarian Law Project. This was a human rights organization, it's an American non-profit corporation founded in 1985 in Los Angeles. The organization's mission was to promote, "the peaceful resolution of conflict by using established international human rights laws and humanitarian law."

0:06:48.9 Rhiannon: So at the time AEDPA was passed, HLP had already been working with two organizations that would soon be designated as foreign terrorist groups by the United States. As Peter said, those were the Kurdistan Workers Party, the PKK, and the Tamil Tigers. So the Humanitarian Law Project provided various forms of support for the humanitarian and nonviolent political activities of these two groups. So for example, with the PKK in Turkey, HLP had been providing training and expertise on like dispute resolution, right, through peaceful and lawful means. It taught the PKK how to file human rights complaints before the United Nations. It helped them with advocacy for Kurdish human rights in Turkey.

0:07:34.0 Rhiannon: It assisted the PKK in making connections between the party and the Turkish government to convene peace talks. Stuff like that, right? This is non-violent work.This is the promotion of non-violence and the encouragement of diplomacy through lawful means. And to whatever extent some of the activities of these organizations like the PKK were unlawful or violent, that's not what HLP was supporting. But with AEDPA and the Patriot Act defining material support in the way that they did, including in the definition of material support, training and advice or assistance, the Humanitarian Law Project was worried that its activities were suddenly made illegal, right, and would expose them to criminal prosecution since it could count as material support to a foreign terrorist organization.

0:08:25.0 Rhiannon: So when the law was passed, but before it went into effect, HLP and other organizations that were doing similar work who had similar concerns, they sued in what's called a pre-enforcement challenge. You're suing to challenge the constitutionality of a new law before it's ever enforced, saying if it is enforced, this is going to be unconstitutional. So that's how this case makes its way to the Supreme Court.

0:08:50.6 Peter: Yeah. So the law makes it illegal to provide material support to organizations that the United States government has designated to be terrorist organizations. And that includes things like training and expert advice. And the Humanitarian Law Project wants to provide training and expert advice to the PKK and the Tamil Tigers, right? So they say, hey, this violates our First Amendment rights to free speech and association. We want to talk to these folks, convey perfectly legal, nonviolent information to them. And you are punishing that and you're punishing us for our association with them and nothing more. John Roberts writes the majority opinion.

0:09:30.9 Peter: First things first, there are some arguments about statutory interpretation and constitutional vagueness doctrines that we're going to skip because they're boring. And also, I want to focus on the core question of free speech. But before we do, I want to once again on this podcast state that John Roberts is the worst writer on the court.

0:09:52.4 Michael: He's so bad.

0:09:53.4 Peter: And maybe I don't want to say like the worst writer in Supreme Court history. I don't know whether that's true. I will say this. There is no writer that I enjoy reading less.

0:10:02.3 Michael: Yeah.

0:10:04.7 Rhiannon: Yeah.

0:10:07.6 Peter: And we've read a whole bunch of fucking opinions. I'll tell you that. At least 150 years ago, if you were a terrible writer, you only wrote like three pages. You know what I mean?

0:10:12.4 Michael: Yeah.

0:10:12.9 Peter: I'm going to do my best to articulate what I think Roberts is saying in this opinion. But I'm being honest when I say like I could not really locate a coherent thread of argument running through the opinion. I'm just sort of doing my best.

0:10:28.6 Michael: Reading this, I was struck by a thought, which is this opinion is from 2010. But if I didn't know that and you told me this was like I prompted chatGPT to write.

0:10:41.6 Rhiannon: Yes.

0:10:41.7 Michael: An Opinion and this is what it gave me, I would believe you. I would be like, yes, this has the hallmarks of AI bullshit. It's generally grammatically correct and it's got like a general good format, but it's nonsense. It's nothing underneath it.

0:10:58.3 Peter: Yeah. Each sentence on its own, you're like, okay, I think I get what he's saying. But you start stringing them together and you're like, what's happening?

0:11:07.0 Michael: Oh, God.

0:11:07.5 Rhiannon: Yeah.

0:11:07.8 Michael: Your brain starts like fraying.

0:11:09.8 Rhiannon: Right. I was reading a law review article in preparation for this episode. And this law professor says, "The key to understanding the majority opinion by Chief Justice Roberts is that it considers HLPs arguments through an as applied lens, emphasizing the particular actions that HLP proposed to undertake rather than engaging in an open ended review."

0:11:29.6 Rhiannon: The sentence goes on. And it's like if you have to say like this is how you can actually understand this opinion is if you do this kind of mental gymnastics. Right. Like it's just poorly written. It's just bad.

0:11:44.8 Peter: It's incoherent. It constantly bounces around. There are many times where I thought I had accidentally scrolled back in the opinion because I was like, didn't we do this? Anyway, let's just get into it.

0:11:57.5 Rhiannon: Yeah.

0:11:57.7 Peter: The first issue we're going to talk about here is free speech. Is this all unlawfully infringing on the speech rights of the Humanitarian Law Project? When the court analyzes a law that limits speech in this way, the way the analysis is done is by asking two questions.

0:12:13.0 Peter: First, does the law serve a compelling government interest in this case fighting terrorism, which everyone agrees is a compelling government interest? And second, if so, is the law narrowly tailored to that interest, which is a bit of legalese, but basically means the law has to be as targeted as possible. Right. The smallest amount of collateral damage to constitutional rights possible.

0:12:38.3 Rhiannon: Yeah.

0:12:38.5 Peter: This analysis is called the strict scrutiny analysis. And one of the things about this analysis is that laws almost never survive it. Almost every time this comes up, the law is struck down. In fact, before this case, no restriction on speech had ever survived the strict scrutiny analysis. This is the first time.

0:12:58.8 Rhiannon: Till 2010. Right.

0:13:00.1 Peter: And to give you a sense of how rigorous the strict scrutiny analysis is supposed to be, the Supreme Court has struck down laws that were meant to crack down on animal sacrifice and child pornography. By saying that they were not narrowly tailored enough. Right. This is an analysis that almost every law should fail because it's almost impossible to meet this burden. And that's the point. Like, that's supposed to be the point of the strict scrutiny analysis.

0:13:31.9 Michael: The idea is the court invokes strict scrutiny when they feel like a fundamental right is being infringed on. And they're saying, look, we don't think the government should be able to infringe on your fundamental rights. That's the whole point of the Constitution, unless it has a really, really good reason and does so really, really carefully.

0:13:55.2 Rhiannon: Right.

0:13:55.9 Peter: And this law really shouldn't survive this analysis because, like, everyone admits that it restricts the otherwise legal and protected speech of these organizations. Right.

0:14:09.7 Rhiannon: Yes.

0:14:10.4 Peter: They are trying to provide counsel to terrorist organizations. And we're going to say terrorist organizations all the time. And it feels very dramatic and shit. But we're just talking about the legal designation.

0:14:20.8 Rhiannon: Right. That's what the US Government has called them. Right.

0:14:23.8 Peter: They are not doing this in furtherance of any illegal activity. Right. But the law still says you can't do it. This should basically be the end of the discussion because, again, the law is supposed to be narrowly tailored, meaning that there is minimal collateral damage to protected speech. And pretty much everyone here has to accept that there is a ton of collateral damage to protected speech. The Humanitarian Law Project is trying to provide perfectly legal advice to these organizations, trying to push them toward peaceful avenues of conflict resolution. And the law says, no, you can't do that, which means that it infringes on harmless and legal speech, which means it's not narrowly tailored. It should be that simple.

0:15:06.5 Michael: Yeah.

0:15:06.6 Rhiannon: Right.

0:15:06.8 Peter: That really should be the end of it.

0:15:07.1 Rhiannon: Yeah.

0:15:07.3 Peter: But what Roberts says is that working with these terrorist organizations, even if everything you're doing is peaceful and lawful, could help legitimize them.

0:15:16.9 Michael: Yes.

0:15:17.3 Peter: And allow them to free up resources for terrorist activities. Now. This is an argument that the government made during their case, but they didn't offer any actual evidence to support it. They just sort of stated it. And it doesn't really make sense because how would giving legal advice to an organization free up its resources for terrorist activities?

0:15:40.2 Rhiannon: We've taught you how to make a complaint to the United Nations. Now you have lots of time for bombing or whatever. Like, that doesn't make sense.

0:15:47.7 Peter: It's not like you're giving them a thousand dollars.

0:15:49.7 Michael: Johnny over there is our bomb maker, but we're going to send him to a UN Complaint seminar to learn how to file complaints with the United Nations.

0:16:02.2 Peter: That can't even be it, because then you have less time for bomb making.

0:16:05.3 Rhiannon: Right. Right.

0:16:09.4 Peter: It's so fucking stupid. And yet Roberts buys it. He says, look, the government says that they think any advice given to these groups facilitates terrorism. And I believe them. Right. No need to present evidence or anything as if this were some sort of court.

0:16:24.3 Michael: Or even like a logical train of thought. You could follow a hypothetical. Give us a hypothetical.

0:16:31.2 Peter: I would love a hypothetical of how learning how to file a human rights complaint before the UN Could somehow allow you more room to do terrorism. I would love someone to just shoot us that hypothetical on fucking Twitter or whatever. Either way, I feel like the government should have to make some kind of cogent argument. But they don't. And yet Roberts seems to buy it. Now, I also want to be clear that, like, if this is the law, then you can sort of make the argument that it should be illegal to talk to, like, any criminal yes or that it could be illegal to talk to, like, any criminal. Right. You're legitimizing them. So you can't talk to gang members.

0:17:10.1 Peter: That's illegal now. No one would think that that's a serious argument. But that is the same basic train of thought here.

0:17:16.7 Rhiannon: Yeah. And that's exactly the problem with the train of thought and with this holding is that, you know, freedom of speech, freedom of association. It means that you are allowed to associate yourself. You are allowed to state political beliefs, right, that are unpopular, that someone might say are dangerous to them and their worldview. Right. You're allowed to associate with a group, in fact, form groups and associate with them over the long term in ways that might legitimize those groups, like in terms of their membership. Right. But you still have freedom of association. It's in spite of the downstream effects of association that, you know, a group might be legitimized or something. Right.

0:18:02.4 Rhiannon: That your freedom of association is still supposed to be constitutionally protected, like just because you are associating with an unpopular group, a group that does things the United States government doesn't agree with. Right. That's really, really not the reason why your First Amendment rights should be limited.

0:18:18.5 Peter: Right. So again, the Humanitarian Law Project is trying to teach these organizations various legal avenues for vindicating their concerns. Roberts says, "A foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate and disrupt."

0:18:37.3 Michael: Yeah.

0:18:38.7 Peter: This possibility is real, not remote. Now, he presents no actual evidence of this.

0:18:47.1 Rhiannon: Correct.

0:18:47.7 Peter: Which, again, I do think you should need. Also, it's weird to say this possibility is real when what you actually mean is this possibility is a purely hypothetical thing I just made up. Like, it's not like he cites a specific example of like PKK doing this or Whatever.

0:19:07.0 Rhiannon: And also abstraction is baked in there, the possibility is real. Well, sure every possibility is real, but the actuality is not real.

[laughter]

0:19:16.6 Peter: What is possibility, if not the chance that something is real?

[laughter]

0:19:21.8 Michael: Yeah. It's not even the possibility of violence is real. It's the possibility of obstruction, of delay.

0:19:31.9 Rhiannon: Of a law at the UN or something. What are talking about?

[laughter]

0:19:34.2 Peter: He's like dude, you dunno. You dunno what they could do. It's real. With a little bit of knowledge at the UN, they could really slow the UN down here, notoriously nimble organization, the United Nations. Okay.

[laughter]

0:19:51.6 Peter: Yeah.

0:19:52.6 Rhiannon: Brought to its knees by...

[laughter]

0:19:55.4 Michael: Brought to its knees.

0:19:56.9 Rhiannon: By the Tamil Tigers [laughter] submitting a complaint.

[laughter]

0:20:01.3 Michael: The fluency in their bureaucratic processes because of the Humanitarian Law Project. [laughter], oh my gosh.

0:20:10.0 Peter: I'm trying to think of like a brutal terrorist attack conducted by the Tamil Tigers and there's an investigation and they somehow trace it back to them learning the procedures of the UN.

[laughter]

0:20:22.3 Peter: Alright. Well, so anyway, I wanna just zoom out for a second. Again, the court is supposed to be doing this demanding strict scrutiny analysis where they make sure that the law is justified and that it doesn't infringe on more constitutional rights than absolutely necessary. But what they actually do is say that the government can infringe on speech rights as long as there's some hypothetical justification made up by John Roberts. Which by the way, if you wanna be a real nerd about this is actually the rational basis review analysis and not the strict scrutiny analysis. But leave that one to the 1L nerds [laughter], to ponder. So before we move on, I do wanna point out that none of this lines up with the precedent on free speech cases. The way that speech rights are analyzed under the precedent is that if the government wants to infringe upon them, they generally need to show some immediate threat of violence. Right. That's been the rule since Brandenburg v. Ohio in 1967. But here you see them basically abandoning that and allowing the government to prohibit speech based on some vague hypothetical threat of violence, which is really just completely antithetical to the existing precedent.

0:21:34.6 Rhiannon: Yeah. 'cause it's not even a vague threat of violence. Roberts is putting forth this real possibility or whatever of obstruction of procedures at the United Nations. Right. Brandenburg v. Ohio is a case that says, I mean, what you said Peter, that like you basically have free speech up until the point that you are inciting a riot. Right. Calling on immediate, dangerous or violent acts to occur, imminently. Right.

0:22:07.1 Michael: Right. If you went on in the eclipse and we're going to the capitol. Right.

0:22:09.8 Rhiannon: [laughter] Right. Exactly.

0:22:11.8 Michael: To obstruct the vote.

0:22:12.1 Rhiannon: Exactly.

0:22:12.6 Michael: That's a good example of what incitement might look like.

0:22:15.7 Rhiannon: Yeah. Absolutely.

0:22:16.2 Peter: You can't just say eclipse anymore, by the way. You have to be specific. Do you mean the one in DC or do you mean...

0:22:23.0 Michael: I'm referring specifically to the January 6th riot incited by former president Donald.

[laughter]

0:22:28.7 Peter: Clear.

[laughter]

0:22:29.8 S6: It's an ellipse.

0:22:30.6 Peter: Oh, oh yeah, yeah ellipse.

0:22:33.1 Michael: Ellipse. I got eclipse on the brain.

0:22:34.2 Peter: Leave this all in [laughter] Leave this all in.

[laughter]

0:22:38.5 Rhiannon: So yeah. The conduct here, the speech here, the association here that the Humanitarian Law Project is doing or engaging in, that's just not anywhere near where the line was drawn in Brandenburg. It's far afield of what actually counts as speech that's so dangerous that the government can actually infringe on your, on your freedom of speech.

0:22:58.0 Michael: Yeah.

0:23:00.9 Peter: By the way, there's a point in this opinion where John Roberts is like, well this isn't pure speech. This is material support for terrorism that's composed of speech.

[laughter]

0:23:18.9 Peter: Like what?

0:23:19.7 Rhiannon: It's an ingredient. [laughter],

0:23:20.2 Peter: It's like, is it cake for speech.

[laughter]

0:23:25.9 Peter: You cut into that material support and you're like, oh my god.

0:23:29.3 Rhiannon: Speech.

0:23:30.3 Peter: Speech.

[laughter]

0:23:31.0 Peter: It's all speech.

[laughter]

0:23:39.0 Peter: Oh shit. All right. So we've touched on this a bit, but there is a separate argument here. What is technically a separate argument that this also infringes on their right to association. The court has held that part of your first amendment rights include the right to freely associate with whomst you please. [laughter] So they're saying, yeah, we wanna associate with these groups. That is our right. Let us do it, right. Roberts barely addresses this argument, which honestly thank God 'cause I don't think I could take any more at this point [laughter], but he says the law doesn't ban "mere association," it bans material support, which is different, but it's not actually different because the court pretty freely admits that everything the Humanitarian Law Project is doing would be legal if it was done in association with a different group. So it is in fact the mere association with the designated terrorist groups that's being punished here. And that's assuming, you know what mere association even means, which I'm not sure that I do.

0:24:39.4 Michael: I know what mere disassociation means. It's the feeling I get when I read a John Roberts opinion.

[laughter]

0:24:47.3 Rhiannon: Me every day.

[laughter]

0:24:50.5 Peter: So look, the whole mere association concept is not actually supposed to be part of this analysis. The court created a test for these situations back in the early '60s in a case called Scales v. United States. The test is that the government can't punish your association with a group unless it can show that you are trying to further the illegal goals of that group. Right. So if you're just friends with some people in a criminal gang, that is protected by the constitution, but if you are furthering their criminal activities, that can be illegal. Right.

0:25:26.4 Michael: Yeah. This came up like after the government said the communist party was essentially engaged in trying to overthrow the government by illegal means. It still wasn't, you couldn't criminalize simply being a member of the communist party. If you were, well I think we should try to do communism by a democratic means or whatever that is protected activity. That is in a protected association you can have. Which is a very on point metaphor here. [laughter]

0:25:58.9 Peter: Yeah. Right. Yeah. So here there's no evidence that the Humanitarian Law Project is furthering illegal activities. So this should be protected under their right to free association. Roberts doesn't address this analysis at all. All he does again, is say that it's more than mere association that the law impacts. Marking the second time in this case that he has just completely ignored the actual test that's supposed to be applied in favor of just several paragraphs of words, is the best way to describe it.

0:26:29.8 Michael: Yeah. So there is a descent Breyer writes it and he's joined by Ginsburg and Sotomayor. He hits a lot of the points we've already hit, but, he starts by saying, look, this is core political speech, which historically is the most protected part of the First Amendment. Right. First and foremost, we have to make sure people can have political parties and the free exchange of ideas so that our democracy functions freely and it gives, meaning to our elections and our choice and our political economy. So we should be very careful about restricting it. He says, all the usual markers point to this being protected speech. It's advocating lawful activity, not illegal activity. There's no imminent illegal activity. They're doing this for political ends. So strict scrutiny should apply and I thought this discussion was pretty good when he talks about, the government's arguments about why this is narrowly tailored. The government makes two arguments. The first is about fungibility, that aid to terrorist organizations can be fungible and that this is something congress was concerned about. And he goes through it and he is like, yeah, but when you read these, it's, they're talking about money [laughter], if you give someone 20 bucks and say, you know...

0:27:55.1 Peter: Use this on something good.

0:27:55.2 Rhiannon: [laughter] Yeah.

0:27:56.0 Michael: Right. They don't have to use it. So.

0:27:57.9 Peter: Don't use this on terrorism.

[laughter]

0:28:00.5 Michael: Right. [laughter] They don't have to. They could go use it on terrorism. But also if you give them gasoline that maybe money they don't have to spend on gasoline for their cars could go to terrorism or they could put it in bombs or something. But he is like, how is training someone to file UN complaints fungible. What is the, how It doesn't make any sense. He's like, actually he is like, if you think about this for two seconds, it's nonsense. And the legitimacy argument that Peter mentioned and that Roberts swallows in full. And I thought his best line was about this. He says, "it is inordinately difficult to distinguish when speech activity will and when it will not initiate the chain of causation. The court suggests a chain that leads from peaceful advocacy to "legitimacy" to increased support for the group to an increased supply of material goods that support its terrorist activities."

0:28:57.1 Michael: Again, this is supposed to be, the name for this part of the test is narrowly tailored. And this is a several step chain of causation. Each one more speculative than the last. It's pretty good, but it goes on too long. 'cause Breyer's long-winded and yeah, Breyer does say something. This is a pretty good illustration of both his strengths and weaknesses. I think he has this paragraph where he says, "what does 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 negotiate might be faked. So let's not teach him how to try." and it's like this rhetorical question, what is one to say about these arguments? And I was like, all right, this is a pretty good windup. Well then he just leaves it. I'm like, what is one to say about it? And he's like, [laughter] in my view. And he moves on and it's just like, come on man. You just wound up for a haymaker. And then just walked away.

0:30:00.2 Rhiannon: Right. Why hide the ball here? Just say it.

0:30:03.2 Michael: Yeah.

0:30:04.1 Peter: Before we go on, we should talk about maybe John Paul Stevens, he joins the majority. I don't have a ton of thoughts about this. He's usually good including on war, on terrorist stuff, but he does have a flag salute and streak.

0:30:18.7 Rhiannon: Yeah.

0:30:19.0 Michael: Yeah.

0:30:19.5 Peter: The flag burning case, notoriously a big sucker in that one. And every now and then you can just get him on some of this national security stuff 'cause he was a Navy boy, I think. I forget exactly.

0:30:29.8 Michael: Yes. He was...

0:30:31.2 Peter: But he's like, this is a time of war or whatever the fuck. I don't know. But that presumably is why he's there. You might ask where Kagan was not on the court yet. She was the solicitor general arguing for the United States government in this case.

0:30:43.5 Rhiannon: Yeah. That's right. And alongside her, Michael, you discovered this today. Neal Katyal also arguing this case for the US government.

0:30:56.0 Peter: And that reminds me of something that's not exactly about the case itself, but whenever lawyers are criticized for representing some fucking oil company or whatever, you get people who act like it's the highest calling on earth to represent someone who is accused of wrongdoing and that everyone deserves representation and therefore there was nothing morally wrong with representing ExxonMobil or whatever for $2,000 an hour. Fine. But you don't get any outcry from the bar when there's legislation like this, which effectively says that there are clients you cannot provide services to. Even if those services are perfectly safe, purely nonviolent, purely humanitarian. Right.

0:31:33.7 Rhiannon: Really good point.

0:31:33.8 Peter: Neal Katyal got flack recently a few years ago for representing Nestle when they were accused of aiding and abetting child slavery. And he and his allies all stood up to say, hey, representing people accused of wrongdoing is the backbone of the system. This is how it works, this is what our job is. And here he is in this case, arguing for the government who wants to make it illegal to teach the PKK to bring human rights claims before the UN. Right. These people are drenched in immorality.

0:32:05.9 Rhiannon: Yeah. That's it. That's the principle.

0:32:08.1 Peter: Right. So to talk about the fallout of this case a little bit shortly after the case drops, the FBI used it as leverage to raid the homes of anti-war activists who had allegedly coordinated with designated terrorist groups. We don't have much information on what exactly the concerns were, but it's safe to say that these people were not facilitating actual violence or else the FBI wouldn't have had to wait until after this case came down to do the raids. Also worth noting that that was, 14 years ago and they never brought charges. So if I had to guess I'd say the FBI was fucking around.

0:32:48.3 Rhiannon: That's right. Yeah. As they do basically their top mission, former president Jimmy Carter spoke out against this Supreme Court decision when it came down. He was the founder of the Carter Center, which did lots of work to promote peace, further human rights, alleviate human suffering around the world. And Carter released a statement in response to this ruling saying, "we are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The material support law, which is aimed at putting an end to terrorism, actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."

0:33:38.1 Peter: To give a little color on the Carter Center, they were in the late aughts trying to meet with Hezbollah, a designated terrorist organization to facilitate peace talks and help them learn how to monitor elections for free and fair elections in Lebanon. Right. Just stuff that's unequivocally part of the peace process. And this case makes that illegal. It's one of those situations where if you wanted organizations to step into these peace processes, they're going to need to communicate with designated terrorist organizations. And the law now says you can't do that. And the Supreme Court says that's okay.

0:34:20.8 Rhiannon: Yeah. That's exactly right. And so, yeah, Lots of organizations implicated here because of the over broadness of the law and because of the Supreme Court obviously saying this is fine. Right. But it all goes back, I think, to allowing material support for terrorism, allowing these definitions to be as expansive as they are in the law. Whether that's the definition of material support, what counts, if assistance can count, if providing expertise and advice can count legal support, what have you. If all of that counts as material support, then that is overbroad and definitely infringes on people's first amendment rights. And then the other over expansive definition in the law here is what counts as a foreign terrorist organization.

0:35:10.4 Rhiannon: Right. So, if the Secretary of state, of the United States government has the discretion to designate as a foreign terrorist group, any foreign group that engages in any unlawful activity against a person or property, and then is said to also be working against the economic interests of the United States, that definition and that discretion is ripe for abuse. Right. That amount of discretion plainly sets up that these decisions are made about who counts as a terrorist organization and who doesn't in ways that are extremely politically motivated. Right. All of us can imagine organizations right now that enact mass violence, that do mass violence on people that meet this definition that could be designated as foreign terrorist organizations under these very definitions. I'm thinking about the IDF I'm thinking about.

0:36:09.6 Peter: No too easy. Too easy. [laughter] Yeah. This is what I said during prep when Michael was like, IDF, it's like, no, that's a layup...

[laughter]

0:36:15.5 Rhiannon: Right. That's... Yeah.

0:36:16.9 Peter: It's time to get creative. I've got one. What about Russia? Because this lines up with the US' current posturing. This is a quote from a senior military official that is posted on the defense department website. He says, "we assess that Russia has deliberately struck civilian infrastructure and non-military targets with the purpose of needlessly harming civilians and attempting to instill terror among the Ukrainian population." So why not Russia?

0:36:47.4 Rhiannon: Right. Probably has to be a non-governmental body, right?

0:36:49.5 Peter: It does not because the Iranian revolutionary guard has been on the list for five years.

0:36:57.7 Michael: Yeah.

0:36:58.5 Rhiannon: There you go. And look, they're not a foreign group, But fucking NYPD meets this definition, right?

0:37:04.8 Michael: Oh yeah, for sure.

0:37:04.9 Peter: That's a good answer. That's what I'm talking about.

0:37:07.4 Michael: They're foreign in the sense that they all live on Staten Island.

[laughter]

0:37:12.8 Rhiannon: There's that. Yeah. So, just taking a step back, I feel like in the current, let's say state of affairs, state of international geopolitical crises right now, I have felt over the past six months, very tired and sometimes on 5-4, I'm not focused on what I wanna be focused on or this is such a narrow focus of this podcast in that we're only talking about the US Supreme Court and these cases one after the other, after the other just seem so disconnected and silly and stupid. But you get a case like this, And this is exactly the demonstration of all of this unfairness, all of this racism, all of this prioritization of what "violence" matters to the US government and when, right? And you see it enacted in our very legal institutions, I feel like I see in this case a real demonstration, an exemplar of exactly the things that I've been trying to express.

0:38:20.1 Rhiannon: It's just like one little example, one little output of this system. The perfect, put a bow on it example of the way the US government allows itself, builds a system within and outside of itself in the international world order in which it decides what groups it likes and doesn't like. And in which it decides who gets targeted for being associated with whom no matter what the actual real tangible effects of that work or association are. And how the designation as a terrorist organization means such and such leads to such and such consequences. That are grave and important and material to thousands if not millions of people around the world. And here you have the Supreme Court being the fucking Supreme Court, which is to say idiotic not analyzing anything on any deep level at all. Green lighting, the dumbest shit and just perpetuating the whole machine.

0:39:22.3 Peter: Yeah. This case is the manifestation of a lot of our national pathologies. The foreign terrorist organization list, it's the output of a bunch of political and ideological and diplomatic bullshit which only loosely maps onto how dangerous any of these groups actually are. Which underscores how flimsy the government's fundamental claim here is. They are saying that their concern is to combat terrorism and that this is narrowly tailored to that end. The Taliban isn't on the list of foreign terrorist organizations because the US has basically long thought that it would inhibit diplomatic relations, with the Afghan government. Right. There's nothing particularly consistent about this. And not only does it undermine the government's argument in this case, but you could see a world where someone brings the obvious claim, which is that the foreign terrorist organization list is plainly discriminatory. [laughter]

0:40:25.4 Michael: Right.

0:40:25.5 Peter: It's go fucking Google it, go through it and tell me it's not just targeting Islamic terror groups.

0:40:31.0 Rhiannon: Exactly.

0:40:32.5 Peter: Right. All of that is just taken for granted by the court. And I don't think that they should be in the business of negotiating who is and who is not on the FTO list. I just wanna point out that we are downstream of an enormous amount of bullshit. You said Rhi, Russia's state actor and there are state actors on the list, but more importantly, there are situations like in Gaza where there is no state. Right. Or you have pseudo state actors like Hezbollah. And these laws take advantage of that ambiguity such that if you want to coordinate aid in Gaza, you need to coordinate to some degree with Hamas or at least organizations that someone could argue are tied to Hamas. Right. Which means that someone could hold you in violation of this law, which would effectively be an allegation that you support terrorism for sending any aid to Gaza. That is the regime that this law creates.

0:41:35.1 Rhiannon: Which is exactly how [0:41:36.7] ____ UNAOC just got fucked. Right. It's a United Nations agency, long established, been there for decades, but an allegation that there's any connection to Hamas and now the US doesn't fund it anymore.

0:41:47.4 Michael: Right.

0:41:48.3 Peter: Maybe one last thing to say here is, I do think we can situate this in a tradition of Supreme Court cases that starts shortly after the War on terror in 2004 or so. These cases start popping up Rasul, I get Hamdan, Iqbal mostly about the treatment of detainees at Guantanamo. Right. And the court is for the most part being like, yeah, do whatever. We're not gonna get in the way of the government on this. Not at a time like this. You see this continue clapper, the NSA case in like 2012 or so. So in 2010 we're at the tail end of this. In some ways you might just view this as a weird outlier free speech case where the court is less deferential toward free speech rights than it has ever been. But I don't really think it's a free speech case.

0:42:49.1 Peter: It's a war on terror case. Right. It is a case that fits into this tradition of extremely high deference to the post 9/11 anti-terrorist regime that the Supreme Court took on and never entirely abandoned, although, it has fallen out of favor to some degree. But basically the decade and change after 9/11 was defined by these cases just challenges to this new government regime and the court being like, look, we're not gonna get in the way of this. We don't have the balls basically, exactly. To get in the way of this.

0:43:24.9 Rhiannon: Yeah, exactly.

0:43:25.9 Peter: That's where this case slots in. It's not a free speech case. Right. It's a war on terror case.

0:43:30.7 Michael: That's right.

0:43:35.7 Peter: Alright, next week. Should Sonia Sotomayor retire? This is a hot topic among people who don't understand politics and have never learned a lesson in their life.

0:43:48.5 Rhiannon: Yeah.

[laughter]

0:43:49.2 Peter: And even though we were calling for her retirement a year and a half ago, we are now gonna wade back into it to reiterate that Sonia and ideally everyone else on the court should retire immediately such that they can be replaced by a 12-year-old communist [laughter] or whatever works. Follow us on social media @fiveFourPod support us on patreon, patreon.com/fivefourPod all spelled out. If you wanna hear us drop premium content like our Sotomayor episode, get access to our Slack special events, all sorts of shit. We'll see you next week.

0:44:28.8 Michael: Bye-Bye everybody. 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks at ChipsNY and our theme song is by spatial relations.