Holder v. Humanitarian Law Project

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2010 United States Supreme Court case

Holder v. Humanitarian Law Project

Supreme Court of the United States

Argued February 23, 2010
Decided June 21, 2010
Full case name| Holder et al. v. Humanitarian Law Project et al.
Docket no.| 08-1498
Citations| 561 U.S. 1 (more)

130 S. Ct. 2705; 177 L. Ed. 2d 355

Case history
Prior| Humanitarian Law Project v. Mukasey, 552 F.3d 916 (9th Cir. 2009)
Holding
The federal government may prohibit providing non-violent material support for terrorist organizations, including legal services and advice, without violating the free speech clause of the First Amendment. Ninth Circuit Court of Appeals reversed and remanded.
Court membership

Chief Justice
John Roberts
Associate Justices
John P. Stevens * Antonin Scalia
Anthony Kennedy * Clarence Thomas
Ruth Bader Ginsburg * Stephen Breyer
Samuel Alito * Sonia Sotomayor
Case opinions
Majority| Roberts, joined by Stevens, Scalia, Kennedy, Thomas, Alito
Dissent| Breyer, joined by Ginsburg, Sotomayor
Laws applied
U.S. Const. amend. I; 18 U.S.C. § 2339B

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), was a case decided in June 2010 by the Supreme Court of the United States regarding the Patriot Act's prohibition on providing material support to foreign terrorist organizations (18 U.S.C. § 2339B). The case, petitioned by United States Attorney General Eric Holder,[1] represents one of only two times in First Amendment jurisprudence that a restriction on political speech has overcome strict scrutiny.[2] The other is Williams-Yulee v. Florida Bar.

The Supreme Court ruled against the Humanitarian Law Project, which sought to help the Kurdistan Workers' Party in Turkey and Sri Lanka's Liberation Tigers of Tamil Eelam learn how to resolve conflicts peacefully.[3] It concluded that the US Congress had intended to prevent aid to such groups, even for the purpose of facilitating peace negotiations or United Nations processes because that assistance fit the law's definition of material aid as "training," "expert advice or assistance," "service," and "personnel." The finding was based on the principle that any assistance could help to "legitimate" the terrorist organization and free up its resources for terrorist activities.[4]

The court noted that the proposed actions of the Humanitarian Law Project were general and "entirely hypothetical" and implied that a post-enforcement challenge to the application of the "material support" provisions was not prevented.

## Reception

[edit]

Former President Jimmy Carter criticized the decision and argued:

> "The 'material support law' – which is aimed at putting an end to terrorism – actually threatens The Carter Center's 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."[5]

Élisabeth Decrey Warner, the president of the Swiss NGO Geneva Call, also expressed her disapproval by stating, "Civilians caught in the middle of conflicts and hoping for peace will suffer from this decision. How can you start peace talks or negotiations if you don't have the right to speak to both parties?"[6]

In January 2011, David D. Cole, a professor of law at Georgetown University Law Center, who argued the case for the Humanitarian Law Project, commented on developments since the decision. He noted that several prominent former officeholders, including Rudolph Giuliani and Tom Ridge, had spoken in support of the People's Mujahedin of Iran, an Iranian opposition group designated by the United States as a terrorist organization.[7] He stated that he supported their right to speak but that even nonviolent advocacy, such as urging a designation as "terrorist" to be revoked, was illegal under the Supreme Court decision. He also pointed to exemptions granted under the rubric of "humanitarian aid" that turned out to include products like cigarettes and chewing gum.[7] He stated, "Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees."[7]

The linguist Noam Chomsky criticized[8] the decision as an issue of freedom of speech and stated that it was "the first major attack on freedom of speech in the United States since the notorious Smith Act back around 1940."[9] He also stated that it had troubling legal implications since Humanitarian Law Project gave out advice to PKK to urge the group to pursue nonviolence.[10]

The magazine Mother Jones stated that "the Supreme Court ruled that even protected speech can be a criminal act if it occurs at the direction of a terrorist organization." It went on to say that people "could be convicted of materially supporting terrorism merely for translating a document or putting an extremist video online, depending on [their] intentions."[11]

Representatives of the International Red Cross and Red Crescent Movement stated that the ruling would probably not affect its operations or its relationship with the US government.[6]

## Implementation

[edit]

In September 2010, the FBI raided activists in Minneapolis and Chicago; seized computers, cellphones and files; and issued subpoenas to some targeted individuals to appear before a federal grand jury. The FBI agents were seeking evidence of ties to groups deemed by the US government to be foreign terrorist organizations, including the Revolutionary Armed Forces of Colombia and the Popular Front for the Liberation of Palestine.[12][13] Attorneys linked the raids to the Holder decision.[14][15]

## See also

[edit]

* Anti-terrorism legislation
* Freedom of speech in the United States
* Incitement to terrorism
* List of United States Supreme Court cases, volume 561

## References

[edit]

1. ^ Unknown author, (Aug 4, 2012) Holder v. Humanitarian Law Project, The Oyez Project at IIT Chicago-Kent College of Law, retrieved August 7, 2012
2. ^ "Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)". Justia. "[T]he Court found that a restriction on political speech was valid under strict scrutiny for the first time in its history."
3. ^ Adam Liptak, Court Affirms Ban on Aiding Groups Tied to Terror, The New York Times, June 21, 2010.
4. ^ Liptak, Adam (February 23, 2010). "Before the Supreme Court, First Amendment and Aid to Terrorists". The New York Times. ISSN 0362-4331. Retrieved April 4, 2019.
5. ^ American Civil Liberties Union (June 21, 2010). "Supreme Court Rules "Material Support" Law Can Stand". Retrieved September 26, 2010.
6. ^ a b Marcus Berry (July 14, 2010). "Supreme Court ruling threatens Swiss NGO efforts". Archived from the original on July 16, 2010. Retrieved September 26, 2010..
7. ^ a b c David D. Cole (January 2, 2011). "Chewing Gum for Terrorists". The New York Times. ISSN 0362-4331. Wikidata Q130817298.
8. ^ Noam Chomsky Videos (April 20, 2014), Noam Chomsky on "Freedom of Speech and Anti Fascism", retrieved May 16, 2017
9. ^ Chomsky, Noam (January 16, 2011). "Chomsky on Obama vs. Free Speech". YouTube. Archived from the original on December 15, 2021.
10. ^ "Democracy Uprising" in the U.S.A.?: Noam Chomsky on Wisconsin's Resistance to Assault on Public Sector, the Obama-Sanctioned Crackdown on Activists, and the Distorted Legacy of Ronald Reagan. Democracy Now!, February 17, 2011
11. ^ Adam Serwer, Does Posting Jihadist Material Make Tarek Mehanna a Terrorist?, Mother Jones, December 16, 2011.
12. ^ Colin Moynihan, F.B.I. Searches Antiwar Activists’ Homes, New York Times, September 24, 2010
13. ^ Search warrant Archived 2010-10-08 at the Wayback Machine and subpoena Archived 2010-10-08 at the Wayback Machine (Indymedia)
14. ^ Sheila Regan, FBI raids activist homes in Minneapolis, Chicago, Twin Cities Daily Planet, September 24, 2010.
15. ^ Activists to Protest Recent FBI Raids on Anti-War Members, Associated Press, September 24, 2010.

## Further reading

[edit]

* Barak-Erez, Daphne; Scharia, David (2011). "Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law" (PDF). Harvard National Security Journal. 2. Archived from the original (PDF) on February 6, 2020. Retrieved May 19, 2020.

## External links

[edit]

* Text of Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) is available from: CourtListener Justia Oyez (oral argument audio) Supreme Court (slip opinion) (archived)
* The Supreme Court goes too far in the name of fighting terrorism (Washington Post)
* What Counts as Abetting Terrorists? (NYT)
* Andrew F. March, "A Dangerous Mind?" New York Times Sunday Review, April 22, 2012

* v
* t
* e

Case law related to the War on Terror

Guantanamo Bay and habeas corpus|

* Rumsfeld v. Padilla (2004)
* Rasul v. Bush (2004)
* Hamdi v. Rumsfeld (2004)
* Hamdan v. Rumsfeld (2006)
* Munaf v. Geren (2008)
* Boumediene v. Bush (2008)
* al-Marri v. Spagone (2009)
* Kiyemba v. Obama (2010)
* United States v. Zubaydah (2022)

Domestic|

* United States v. Ressam (2008)
* Ashcroft v. Iqbal (2009)
* Holder v. Humanitarian Law Project (2010)
* Snyder v. Phelps (2011)
* Ashcroft v. al-Kidd (2011)
* Clapper v. Amnesty International USA (2013)
* Ziglar v. Abbasi (2017)
* Tanzin v. Tanvir (2020)
* Federal Bureau of Investigation v. Fazaga (2022)
* Federal Bureau of Investigation v. Fikre (2024)

Others|

* Republic of Iraq v. Beaty (2009)
* Republic of Sudan v. Harrison (2019)
* Opati v. Republic of Sudan (2020)

* v
* t
* e

U.S. Supreme Court Freedom of Speech Clause case law

First Amendment to the United States Constitution

Unprotected speech

| Clear and present danger
and imminent lawless action|

* Schenck v. United States (1919)
* Debs v. United States (1919)
* Abrams v. United States (1919)
* Gitlow v. New York (1925)
* Whitney v. California (1927)
* Fiske v. Kansas (1927)
* Dennis v. United States (1951)
* Communist Party v. Subversive Activities Control Bd. (1955; 1961)
* Yates v. United States (1957)
* Bond v. Floyd (1966)
* Brandenburg v. Ohio (1969)
* Hess v. Indiana (1973)

|

Defamation and
false speech|

* New York Times Co. v. Sullivan (1964)
* Hustler Magazine v. Falwell (1988)
* United States v. Alvarez (2012)
* Susan B. Anthony List v. Driehaus (2014)

Fighting words and
the heckler's veto|

* Cantwell v. Connecticut (1940)
* Chaplinsky v. New Hampshire (1942)
* Terminiello v. City of Chicago (1949)
* Feiner v. New York (1951)
* Gregory v. City of Chicago (1969)
* Cohen v. California (1971)
* Nat'l Socialist Party v. Village of Skokie (1977)
* R.A.V. v. City of St. Paul (1992)
* Snyder v. Phelps (2011)

True threats and
threatening the President
of the United States|

* Virginia v. Black (2003)
* Elonis v. United States (2015)
* Counterman v. Colorado (2023)

Obscenity|

* Rosen v. United States (1896)
* Roth v. United States (1957)
* One, Inc. v. Olesen (1958)
* Smith v. California (1959)
* Marcus v. Search Warrant (1961)
* Manual Enterprises, Inc. v. Day (1962)
* Jacobellis v. Ohio (1964)
* Quantity of Books v. Kansas (1964)
* Ginzburg v. United States (1966)
* Memoirs v. Massachusetts (1966)
* Redrup v. New York (1967)
* Ginsberg v. New York (1968)
* Stanley v. Georgia (1969)
* United States v. Thirty-seven Photographs (1971)
* Kois v. Wisconsin (1972)
* Miller v. California (1973)
* Paris Adult Theatre I v. Slaton (1973)
* United States v. 12 200-ft. Reels of Film (1973)
* Jenkins v. Georgia (1974)
* Erznoznik v. City of Jacksonville (1975)
* Young v. American Mini Theatres, Inc. (1976)
* People v. Freeman (Cal. 1988)
* United States v. X-Citement Video, Inc. (1994)
* Reno v. ACLU (1997)
* United States v. Playboy Entertainment Group, Inc. (2000)
* City of Los Angeles v. Alameda Books, Inc. (2002)
* Ashcroft v. American Civil Liberties Union (2002)
* United States v. American Library Ass'n (2003)
* United States v. Williams (2008)
* United States v. Stevens (2010)
* Brown v. Entertainment Merchants Ass'n (2011)
* FCC v. Fox Television Stations, Inc. (2012)
* Free Speech Coalition v. Paxton (2025)

Speech integral
to criminal conduct|

* New York v. Ferber (1982)
* Osborne v. Ohio (1990)
* Ashcroft v. Free Speech Coalition (2002)
* United States v. Hansen (2023)

Strict scrutiny

* Holder v. Humanitarian Law Project (2010)
* Williams-Yulee v. Florida Bar (2015)

Overbreadth and Vagueness doctrines

* Smith v. Goguen (1974)
* Board of Airport Commissioners v. Jews for Jesus (1987)
* Minnesota Voters Alliance v. Mansky (2018)

Symbolic speech versus conduct

* Stromberg v. California (1931)
* United States v. O'Brien (1968)
* Cohen v. California (1971)
* Spence v. Washington (1974)
* Clark v. Community for Creative Non-Violence (1984)
* Dallas v. Stanglin (1989)
* Texas v. Johnson (1989)
* United States v. Eichman (1990)
* Barnes v. Glen Theatre (1991)
* City of Erie v. Pap's A. M. (2000)
* Virginia v. Black (2003)

Content-based restrictions

* Lamont v. Postmaster General (1965)
* Metromedia, Inc. v. San Diego (1981)
* Boos v. Barry (1988)
* Simon & Schuster, Inc. v. Crime Victims Board (1991)
* R.A.V. v. City of St. Paul (1992)
* Reed v. Town of Gilbert (2015)
* Barr v. American Association of Political Consultants (2020)
* City of Austin v. Reagan National Advertising of Austin, LLC (2022)

Content-neutral restrictions

* Schneider v. New Jersey (1939)
* Renton v. Playtime Theatres, Inc. (1986)
* City of Ladue v. Gilleo (1994)
* Packingham v. North Carolina (2017)
* TikTok, Inc. v. Garland (2025)

| In the
public forum|

* Davis v. Massachusetts (1897)
* Hague v. CIO (1939)
* Thornhill v. Alabama (1940)
* Martin v. City of Struthers (1943)
* Niemotko v. Maryland (1951)
* Edwards v. South Carolina (1963)
* Cox v. Louisiana (1965)
* Brown v. Louisiana (1966)
* Adderley v. Florida (1966)
* Carroll v. Town of Princess Anne (1968)
* Coates v. City of Cincinnati (1971)
* Org. for a Better Austin v. Keefe (1971)
* Clark v. Community for Creative Non-Violence (1984)
* Frisby v. Schultz (1988)
* Ward v. Rock Against Racism (1989)
* Burson v. Freeman (1992)
* Madsen v. Women's Health Center, Inc. (1994)
* Schenck v. Pro-Choice Network of Western New York (1997)
* Hill v. Colorado (2000)
* McCullen v. Coakley (2014)

|

Designated
public forum|

* Widmar v. Vincent (1981)
* Rosenberger v. Univ. of Virginia (1995)
* Uzuegbunam v. Preczewski (2021)

Nonpublic
forum|

* Lehman v. Shaker Heights (1974)
* Perry Education Association v. Perry Local Educators' Association (1983)
* Cornelius v. NAACP Legal Defense Fund (1985)
* Arkansas Educational Television Commission v. Forbes (1997)
* Minnesota Voters Alliance v. Mansky (2018)

Compelled speech

* Minersville School District v. Gobitis (1940)
* West Virginia State Board of Ed. v. Barnette (1943)
* Miami Herald Publishing Co. v. Tornillo (1974)
* Wooley v. Maynard (1977)
* Pruneyard Shopping Center v. Robins (1980)
* Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
* Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
* Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006)
* National Institute of Family and Life Advocates v. Becerra (2018)
* 303 Creative LLC v. Elenis (2023)
* Moody v. NetChoice, LLC (2024)

Compelled subsidy of others' speech

* International Ass'n of Machinists v. Street (1961)
* Abood v. Detroit Board of Education (1977)
* Minnesota Board for Community Colleges v. Knight (1984)
* Communications Workers of America v. Beck (1988)
* Keller v. State Bar of California (1990)
* Lehnert v. Ferris Faculty Ass'n (1991)
* Board of Regents of the Univ. of Wisconsin System v. Southworth (2000)
* Johanns v. Livestock Marketing Ass'n (2005)
* Davenport v. Washington Education Ass'n (2007)
* Locke v. Karass (2008)
* Knox v. SEIU, Local 1000 (2012)
* Harris v. Quinn (2014)
* Friedrichs v. California Teachers Association (2016)
* Janus v. AFSCME (2018)

Government grants and subsidies

* Regan v. Taxation with Representation of Washington (1983)
* Rust v. Sullivan (1991)
* National Endowment for the Arts v. Finley (1998)
* Legal Services Corp. v. Velazquez (2001)
* USAID v. Alliance for Open Society International I (2013)
* USAID v. Alliance for Open Society International II (2020)

Government speech

* Pleasant Grove City v. Summum (2009)
* Walker v. Texas Div., Sons of Confederate Veterans (2015)
* Matal v. Tam (2017)
* Iancu v. Brunetti (2019)
* Houston Community College System v. Wilson (2022)
* Shurtleff v. City of Boston (2022)
* Vidal v. Elster (2024)

Loyalty oaths

* American Communications Ass'n v. Douds (1950)
* Garner v. Board of Public Works (1951)
* Speiser v. Randall (1958)
* Keyishian v. Board of Regents (1967)
* Communist Party of Indiana v. Whitcomb (1974)

School speech

* Minersville School District v. Gobitis (1940)
* West Virginia State Board of Education v. Barnette (1943)
* Tinker v. Des Moines Ind. Community School Dist. (1969, substantial disruption)
* Healy v. James (1972)
* Island Trees School District v. Pico (1982)
* Bethel School District v. Fraser (1986)
* Hazelwood School District v. Kuhlmeier (1988)
* Westside Community Board of Ed. v. Mergens (1990)
* Rosenberger v. Univ. of Virginia (1995)
* Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001)
* Morse v. Frederick (2007)
* Uzuegbunam v. Preczewski (2021)
* Mahanoy Area School District v. B.L. (2021)

Public employees

* Pickering v. Board of Education (1968)
* Perry v. Sindermann (1972)
* Arnett v. Kennedy (1974)
* Elrod v. Burns (1976)
* Mt. Healthy City School Dist. Board of Ed. v. Doyle (1977)
* Givhan v. Western Line Consol. School Dist. (1979)
* Connick v. Myers (1983)
* Rankin v. McPherson (1987)
* Rutan v. Republican Party of Illinois (1990)
* Waters v. Churchill (1994)
* United States v. National Treasury Employees Union (1995)
* Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001)
* Garcetti v. Ceballos (2006)
* Borough of Duryea v. Guarnieri (2011)
* Lane v. Franks (2014)
* Heffernan v. City of Paterson (2016)
* Kennedy v. Bremerton School Dist. (2022)

Hatch Act and similar laws

* Ex parte Curtis (1882)
* United Public Workers v. Mitchell (1947)
* U.S. Civil Service Comm'n v. National Ass'n of Letter Carriers (1973)
* Broadrick v. Oklahoma (1973)

Licensing and restriction of speech

* Mutual Film Corp. v. Industrial Comm'n of Ohio (1915)
* Cox v. New Hampshire (1941)
* Murdock v. Pennsylvania (1943)
* Kunz v. New York (1951)
* Joseph Burstyn, Inc. v. Wilson (1952)
* Kingsley Books, Inc. v. Brown (1957)
* NAACP v. Button (1963)
* Freedman v. Maryland (1965)
* Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
* Forsyth County v. Nationalist Movement (1992)

Commercial speech

* Valentine v. Chrestensen (1942)
* Rowan v. U.S. Post Office Dept. (1970)
* Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)
* Lehman v. Shaker Heights (1974)
* Goldfarb v. Virginia State Bar (1975)
* Bigelow v. Virginia (1975)
* Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)
* Linmark Assoc., Inc. v. Township of Willingboro (1977)
* Carey v. Population Services International (1977)
* Bates v. State Bar of Arizona (1977)
* In re Primus (1978)
* Ohralik v. Ohio State Bar Assn. (1978)
* Friedman v. Rogers (1979)
* Consol. Edison Co. v. Public Serv. Comm'n (1980)
* Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
* Metromedia, Inc. v. San Diego (1981)
* Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
* Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985)
* Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
* Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986)
* San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987)
* City of Cincinnati v. Discovery Network, Inc. (1993)
* Lebron v. National Railroad Passenger Corp. (1995)
* Florida Bar v. Went For It, Inc. (1995)
* 44 Liquormart, Inc. v. Rhode Island (1996)
* Lorillard Tobacco Co. v. Reilly (2001)
* Johanns v. Livestock Marketing Ass'n (2005)
* Sorrell v. IMS Health Inc. (2011)
* Expressions Hair Design v. Schneiderman (2017)
* Matal v. Tam (2017)
* Iancu v. Brunetti (2019)
* Barr v. American Association of Political Consultants (2020)
* Vidal v. Elster (2024)

Campaign finance and political speech

* Buckley v. Valeo (1976)
* First National Bank of Boston v. Bellotti (1978)
* Citizens Against Rent Control v. City of Berkeley (1981)
* FEC v. National Conservative PAC (1985)
* FEC v. Massachusetts Citizens for Life (1986)
* Austin v. Michigan Chamber of Commerce (1990)
* Colorado Republican Federal Campaign Committee v. FEC (1996)
* Nixon v. Shrink Missouri Government PAC (2000)
* Republican Party of Minnesota v. White (2002)
* McConnell v. FEC (2003)
* Randall v. Sorrell (2006)
* FEC v. Wisconsin Right to Life, Inc. (2007)
* Davis v. FEC (2008)
* Citizens United v. FEC (2010)
* Nevada Commission on Ethics v. Carrigan (2011)
* Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011)
* American Tradition Partnership, Inc. v. Bullock (2012)
* McCutcheon v. FEC (2014)
* Williams-Yulee v. Florida Bar (2015)
* Thompson v. Hebdon (2019)
* FEC v. Ted Cruz for Senate (2022)

Anonymous speech

* NAACP v. Alabama (1958)
* Bates v. City of Little Rock (1960)
* Buckley v. Valeo (1976)
* Brown v. Socialist Workers '74 Campaign Committee (1982)
* McIntyre v. Ohio Elections Comm'n (1995)
* Doe v. Reed (2010)
* Americans for Prosperity Foundation v. Bonta (2021)

State action

* Marsh v. Alabama (1946)
* Lloyd Corp. v. Tanner (1972)
* Manhattan Community Access Corp. v. Halleck (2019)
* Lindke v. Freed (2024)
* Murthy v. Missouri (2024)

Official retaliation

* Hartman v. Moore (2006)
* Wood v. Moss (2014)
* Lozman v. City of Riviera Beach (2018)
* Nieves v. Bartlett (2019)
* Egbert v. Boule (2022)
* Gonzalez v. Trevino (2024)
* National Rifle Association of America v. Vullo (2024)

Boycotts

* NAACP v. Claiborne Hardware Co. (1982)

Prisons

* Jones v. North Carolina Prisoners' Labor Union (1977)
* Turner v. Safley (1987)
* Shaw v. Murphy (2001)
* Beard v. Banks (2006)

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