Constitutional Avoidance in Holder v. Humanitarian Law Project

June 21st, 2010

In Holder v. Humanitarian Law Project, the Court considered whether it need to reach the Constitutional question, and whether to invoke the constitutional avoidance cannon. I repeat my earlier definition of the avoidance cannon:

The doctrine of constitutional avoidance states, basically, that if the Court need not reach an issue of major constitutional significance, the Court won’t. The Supreme Court follows this doctrine except when they don’t want to follow it.

Here is Chief Justice Robert’s view on the issue of avoidance:

Plaintiffs claim, as a threshold matter, that we should affirm the Court of Appeals without reaching any issues of constitutional law. They contend that we should interpret the material-support statute, when applied to speech, to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities. That interpretation, they say, would end the litigation because plaintiffs’ proposed activities consist of speech, but plaintiffs donot intend to further unlawful conduct by the PKK or the LTTE.

We reject plaintiffs’ interpretation of §2339B because itis inconsistent with the text of the statute. Section 2339B(a)(1) prohibits “knowingly” providing material support. It then specifically describes the type of knowledge that is required: “To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . ., that the organization has engaged or engages in terrorist activity . . ., orthat the organization has engaged or engages in terrorism. . . .” Ibid. Congress plainly spoke to the necessary mental state for a violation of §2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’sterrorist activities.

We cannot avoid the constitutional issues in this litigation through plaintiffs’ proposed interpretation of §2339B. FN3

FN3– The dissent would interpret the statute along the same lines as the plaintiffs, to prohibit speech and association “only when the defendant knows or intends that those activities will assist the organization’sunlawful terrorist actions.” Post, at 17 (opinion of BREYER, J.). According to the dissent, this interpretation is “fairly possible” and adopting itwould avoid constitutional concerns. Ibid. (internal quotation marks omitted). The dissent’s interpretation of §2339B fails for essentially the same reasons as plaintiffs’. Congress explained what “knowingly”means in §2339B, and it did not choose the dissent’s interpretation ofthat term. In fact, the dissent proposes a mental-state requirement indistinguishable from the one Congress adopted in §§2339A and 2339C, even though Congress used markedly different language in §2339B.

Here is Justice Breyer’s view of the avoidance cannon in dissent:

We cannot avoid the constitu-tional significance of these facts on the basis that some of this speech takes place outside the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our govern-ment and its policies. The plaintiffs, for example, wish to write and distribute publications and to speak before the United States Congress. App. 58–59.

For the reasons I have set forth, I believe application of the statute as the Government interprets it would gravelyand without adequate justification injure interests of thekind the First Amendment protects. Thus, there is “a serious doubt” as to the statute’s constitutionality. Cro-well, 285 U. S., at 62. And where that is so, we must “ascertain whether a construction of the statute is fairlypossible by which the question may be avoided.” Ibid.; see also Ashwander, 297 U. S., at 346–348 (Brandeis, J., concurring); Zadvydas v. Davis, 533 U. S. 678, 689 (2001); United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994); United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916).

I believe that a construction that would avoid the consti-tutional problem is “fairly possible.” In particular, I wouldread the statute as criminalizing First-Amendment-protected pure speech and association only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions. Under this reading, the Government would have to show, at a mini-mum, that such defendants provided support that they knew was significantly likely to help the organization pursue its unlawful terrorist aims.
I need not decide whether this is the only possible read-ing of the statute in cases where “material support” takesthe form of “currency,” “property,” “monetary instru-ments,” “financial securities,” “financial services,” “lodg-ing,” “safehouses,” “false documentation or identification,”“weapons,” “lethal substances,” or “explosives,” and the like. §2339A(b)(1). Those kinds of aid are inherently more likely to help an organization’s terrorist activities, either directly or because they are fungible in nature. Thus, to show that an individual has provided support of thosekinds will normally prove sufficient for conviction (assum-ing the statute’s other requirements are met). But where support consists of pure speech or association, I would indulge in no such presumption. Rather, the Government would have to prove that the defendant knew he was providing support significantly likely to help the organiza-tion pursue its unlawful terrorist aims (or, alternatively, that the defendant intended the support to be so used).

For more on the Supreme Court’s views on avoidance, see my posts on avoidance in Stop the Beach and Citizens United.