Mohamed Atta and His Harmonica Quartet

Yesterday the Supreme Court heard oral arguments in Holder v. Humanitarian Law Project, a case challenging the federal ban on providing "material support" to terrorist groups. In my column last week, I outlined the First Amendment problems with the ban, which defines "material support" so broadly that it criminalizes pure speech promoting legal activity. The oral arguments illustrated the related Fifth Amendment problems with the statute: Some categories of prohibited support, including "service," "training," and "expert advice and assistance," are so vague that people cannot reasonably be expected to know what is covered, a basic requirement of due process.

In a New York Times op-ed piece published on Monday, Rutgers Law School Dean John Farmer notes that vague definition is also a central issue in the Supreme Court case involving "theft of honest services," a federal charge that is often used against allegedly corrupt politicians and businessmen. "In its zeal to criminalize the harder-to-define aspects of deplorable practices like corruption and support for terrorism," Farmer writes, "Congress must avoid undermining the premise of our rule of law: that our laws define clearly the conduct they make criminal." Justice Antonin Scalia has suggested that the statute criminalizing honest services theft fails this test. "Without some coherent limiting principle to define what 'the intangible right of honest services' is,"  he has said, the law "invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or unethical conduct."

Yet during yesterday's arguments, Scalia seemed unimpressed by similar concerns about the sweep of the material support law, saying, "The broad scope of this statute is constitutional, and whatever aspects of speech it may run afoul of are minimal." When Justice Sonia Sotomayor observed that "under the definition of this statute, teaching these members [of the Kurdistan Workers' Party] to play the harmonica would be unlawful," Scalia observed that "Mohamed Atta and his harmonica quartet might tour the country and make a lot of money." (I suspect he's right that many people would pay to see the amazing sight of a dead terrorist playing a musical instrument.) By contrast, several other justices perceived definitional problems that could raise due process as well as free speech concerns:

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

Stevens: Then it says to me that your opponent's argument here today is prohibited.

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

Ginsburg: I don't understand the line between meeting with these terrorist organizations, discussing things with them [both of which the law permits, according to the government], and instructing them on how they can pursue their goals through lawful means….I still am having trouble with the line of what they can communicate and what they can't.

Roberts: "Expert advice or assistance"—I don't know sitting down that I could tell you…how to advocate for [a] peaceful…resolution or whatever. Is that expert advice? Is that specialized knowledge?

Alito: Could you explain how someone could be a member of one of these organizations [which the government says is permitted] 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 would be providing a service to the organization.

Even Scalia said he did not understand why "material support" does not include joining a terrorist group. "I would have guessed that you are providing a service or personnel when you make yourself a member of the organization," he said.

Defending the statute, Solicitor General Elena Kagan repeatedly assured the Court that people are still free to say whatever they like, provided they do so independently, without engaging in prohibited "coordination" with a terrorist group. But the petitioners argue that the statute leaves that line fuzzy and that the ban on "service," as explained by the government, seems to encompass independent advocacy. Noting that the statute itself says it should not be read to abridge First Amendment rights, they urge the Court to interpret it as requiring "proof of intent to further the designated organization's illegal activities when applied to pure speech and association."

The transcript of the oral arguments is here (PDF).