By Madison Cone

After six years of wild popularity and influence, TikTok’s time in the limelight may be coming to an end as the prominent app faces a potential ban in the United States.[1]  In 2018, the video-sharing platform began its rapid rise to fame as a new and improved version of the formerly popular app.[2]  By 2020, TikTok surpassed social media giants like Instagram and Facebook and became the most downloaded app of the year.[3]  In large part, this was due to its unique ability to connect people, share information, and provide comedic relief during a historic health crisis.[4]  Now, the fate of the platform is uncertain after the U.S. House of Representatives voted to approve a bill that requires ByteDance Ltd., TikTok’s parent company, to divest the app within six months or be banned from all U.S. devices.[5]

The primary justification for the proposed legislation is that TikTok’s prevalence in the United States poses a substantial risk to national security.[6]  While anticipating and providing protection against potential national security threats is an essential government function, so is upholding Americans’ constitutional right to free speech. The tension between these two objectives has led to considerable debate among politicians, industry experts, and the general public.[7]

A. The Protecting Americans from Foreign Adversary Controlled Applications Act

At least some of the public panic surrounding the Protecting Americans from Foreign Adversary Controlled Applications Act can be attributed to frequent mischaracterization of the Act as a TikTok ban rather than a potential TikTok ban.[8]  While there is no denying that ByteDance will be caught between a rock and a hard place if the bill becomes a law, the Act does provide an exemption for “a foreign adversary controlled application with respect to which a qualified divestiture is executed”.[9]  This language indicates that if ByteDance opts to sell the application to a permissible third party, the Act will no longer apply and TikTok can remain active in the United States.

In discussing the requirements of the Act and its intended effects, it is worth noting that the bill was approved by an overwhelming majority of the House.[10]  To achieve a vote of 352-65 [11] means that members with otherwise incompatible political views were able to agree on the importance of strengthening national security as it relates to TikTok and its use throughout the United States. Such strong bipartisan support is rare in today’s political climate[12] and perhaps telling of the need for more robust data protection, particularly when foreign entities are involved.

B. National Security Justifications

The government’s purported concerns about data usage and national security may be dissatisfying to some, but they are not without merit. As a technology company based in China, ByteDance is subject to various cybersecurity laws that enable the Chinese government to compel data access and require sensitive user information to be stored and processed in China.[13]  American lawmakers increasingly fear the misuse of user data because of that broad government authority and the excessive data collection allowed for by TikTok’s privacy agreement.[14]  More specifically, the U.S. government worries that China may leverage the data collected by TikTok to conduct influence operations and negatively shape American public opinion.[15]  Unsurprisingly, TikTok denies all allegations that it puts sensitive user data at risk.[16]

Several other countries, including India, Australia, and Canada, have taken similar steps to restrict or outright ban the use of TikTok for reasons of national security.[17]  So, while the security risks associated with TikTok are certainly susceptible to exaggeration, the fact that the United States is not alone in this sentiment helps validate its concerns and corresponding action.

C. Free Speech Concerns

Government attempts to regulate social media tend to be highly controversial because of the centrality of these platforms to modern day expression and free speech. TikTok, in particular, is widely praised for its facilitation of mass communication, information sharing, and advocacy.[18] Accordingly, American users are fiercely defensive of their ability to continue using the app to express themselves and interact with others.[19]

During litigation over state-level attempts to curtail TikTok use, judges have determined that preventing users from posting and consuming content on the app through a ban may very well constitute a violation of the First Amendment.[20]  The high bar that the government would have to overcome to prevail on a First Amendment challenge makes it likely that the law will be blocked if this issue eventually ends up in court.[21]  Nonetheless, promoters of the bill are confident that proposed restrictions on the app’s use do not even trigger First Amendment scrutiny because they regulate only economic transactions based on valid national security concerns.[22]  In other words, because the law affects the company’s ability to sell TikTok in the app store, it is regulation of a commercial activity rather than speech.


The debate over TikTok and its continued use in the United States is rife with competing interests and legal complexity. But for now, the 170 million Americans who regularly use the app can take comfort in the fact that the bill still needs to clear the Senate and make it to the desk of President Biden before the future of TikTok is truly in jeopardy.[23]

[1] See Protecting Americans from Foreign Adversary Controlled Applications Act, H.R. 7521, 118th Cong. (2023-2024).

[2] See Rebecca Fannin, The Strategy Behind TikTok’s Global Rise, Harvard Business Review (Sept. 13, 2019),  

[3] John Koetsier, Here Are The 10 Most Downloaded Apps of 2020, Forbes (Jan. 7, 2021, 12:37 PM),

[4] See Under Lockdown, U.S. Teens Turn to TikTok for Life Hacks, Laughs, Reuters (March 26, 2020, 6:16 AM)

[5] H.R. 7521.

[6] H.R. 7521 (stating “[t]o protect the national security of the United States . . . .”).

[7] See Mike Scarcella, TikTok Bill Sets Up Fight Over Free Speech Protections of U.S. Constitution, Reuters (March 14, 2024, 4:17 PM),

[8] See e.g., Hudson Hongo & David Greene, 5 Questions to Ask Before Backing the TikTok Ban, Electronic Frontier Foundation (March 15, 2024), (referring to the bill as “the TikTok Ban” in the article title contributes to initial public confusion about whether the Act calls for an immediate ban).

[9] H.R. 7521 § 2(c)(1)(A).

[10] Kevin Freking, et al., House Passes a Bill that Could Lead to a TikTok Ban if Chinese Owner Refuses to Sell, AP News (March 13, 2024, 7:56 PM),,Chinese%20technology%20firm%20ByteDance%20Ltd.

[11] Id.

[12] See Americans’ Dismal Views of the Nation’s Politics, Pew Research Center (Sept. 19, 2023),

[13] Kristen E. Busch, Cong. Rsch. Serv., IN12131, TikTok: Recent Data Privacy and National Security Concerns (2023).

[14] See id.

[15] See id.

[16] Id.

[17] Sapna Maheshwari & Amanda Holpuch, Why the U.S. is Weighing Whether to Ban TikTok, The New York Times (March 12, 2024),

[18] See Cristiano Lima-Strong & Drew Harwell, TikTok Users Flood Congress with Calls as Potential Ban Advances, The Washington Post (March 7, 2024, 6:49 PM),   

[19] Id.

[20] See Mike Scarcella, TikTok Bill Sets Up Fight Over Free Speech Protections of U.S. Constitution, Reuters (March 14, 2024, 4:17 PM),

[21] Id.

[22] Id.

[23] Id.

By Jacob Winton

On July 20, 2021, Senators Bernie Sanders (I-Vt.), Chris Murphy (D-Conn.), and Mike Lee (R-Utah) introduced the National Security Powers Act of 2021[1] (“NSPA”), a bipartisan bid to reign in the war powers of the Executive Branch.  The bill, which would impose substantial limitations on presidential power,[2] would allow “Congress [] to reclaim its rightful role as co-equal branch on matters of war and national security” and “make sure that there is a full, open and public debate on all major national security decisions” according to Senator Murphy.[3]  The effort seeks to reverse what many view as the “steady erosion of Congress’s power to prevent, confine, or even direct military action and [the] steady accretion of executive discretion and control.”[4]  This shift in the balance of power has been driven in large part by the “Presidentialist” perspective, an approach to presidential war power in which the executive is “constrained in its ability to engage military force abroad only by Congress’s appropriations and impeachment powers.”[5] 

But the historical record leaves little doubt as to who the framers of the Constitution believed should decide when and where to wage war.[6]  Pursuant to the Constitution, the President directs the armed forces as commander in chief,[7]  but “Congress alone has the power to declare war and fund military operations.”[8]  Prior to World War II, the branches of government adhered closely to these guidelines—American military action was routinely preceded by a formal declaration, issued by Congress in response to a request from the President, authorizing the President to engage in military operations against a foreign nation.[9]  However, despite once being deemed a “necessary prerequisite” to military action, “declarations have fallen into disuse” since World War II.[10]  More recently, presidents have become increasingly comfortable engaging in military action abroad without direct congressional approval.[11]

The last formal declaration of war in the United States was issued in 1942 against Romania.[12]  Since then, Congress’s role has withered as the system evolved from a collaborative decision-making process between the Legislative and Executive Branches into “an interagency process subordinating military force within a foreign policy system under the Executive Branch.”[13]  So far, Congress has failed to muster a response sufficient to rebuke the encroachment of the Executive Branch.  For example, after the war effort in Vietnam failed, Congress overrode President Nixon’s veto to pass the War Powers Resolution of 1973[14] under the mistaken belief that it would restore “collective legislative-executive judgment in the war-making process.”[15]  Ultimately, however, the effect of the War Powers Resolution “has been minimal.”[16]

During the 21st century, the accumulation of executive war power has accelerated.[17]  Following the 9/11 terrorist attacks, President George W. Bush’s approach to executive war power was rooted in the “assert[ions] of broad, uncheckable power” by former Presidents Nixon and Reagan.[18]  The Bush White House provided fertile ground for the unitary executive theory, an expansive view of executive power “that had been percolating in the conservative movement for years” and was brought to national prominence in large part by Vice President Dick Cheney.[19] In the aftermath of 9/11, the theory became a “convenient tool seized upon in a time of crisis”[20] to justify unilateral presidential military initiatives that flouted international treaties, violated domestic law, and “led to a widespread government policy and practice of torture.”[21]

Despite the disapproval of both the public and the Supreme Court,[22] the continuing exercise of military power without express authorization has “normalized the unbalanced relationship between Congress and the Executive.”[23]  Modern presidents have resorted to the circular and self-strengthening argument that military action in the absence of congressional approval should be “accepted by mere virtue of past practice.”[24]  In 2011, for instance, the Obama administration Department of Justice qualified President Obama’s use of military force in Libya[25] without congressional approval as constitutional by insisting that “the historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates.”[26]  Moreover, in the wake of Congress’s response to 9/11, presidents have used the Authorizations for the Use of Military Force passed in 2001[27] and 2002[28] to justify military action years later “against terrorist organizations that did not exist at the time of the 9/11 attacks, are active in regions far removed from Al Qaeda’s areas of operation, and that have no known affiliation with Al Qaeda,” effectively bypassing Congress altogether.[29]

It is against this backdrop that Senators Sanders, Murphy, and Lee have introduced the NSPA.  While the Presidentialists welcome the expansion of executive war power, the NSPA represents the concern that unchecked executive power poses a grave threat to our constitutional system.[30]  On a practical level, Senator Lee explained that the NSPA meets an urgent need to restore accountability because “America’s global standing, treasure, and brave service members are being lost in conflict’s the people’s legislators never debated.”[31]  This latest proposal may or may not become law, but unless Congress can reclaim its constitutional role, the growing concentration of war powers in the executive, a danger the framers were keenly aware of, threatens to become a permanent feature of our government.

[1] S. 2391, 117th Cong. (2021).

[2] Notably, the NSPA would repeal all existing war authorizations and defund any military operation not explicitly greenlit by Congress, make it easier for Congress to reverse presidential foreign policy decisions, and roll back presidential access to emergency national security powers. Andrew Desiderio, Unlikely Senate Alliance Aims to Claw Back Congress’ Foreign Policy Powers ‘Before It’s too Late’, Politico (July 20, 2021, 6:00 A.M.),

[3] Id.

[4] Mark E. Brandon, War and the American Constitutional Order, 56 Vand. L. Rev. 1815, 1847 (2003).

[5] Jake Novack, Note, Exploring Executive War Power: The Rise and Reign of the Presidentialist Interpretation, 53 Cal. W. L. Rev. 247, 249 (2017).

[6] See, e.g., Ronald J. Sievert, Campbell v. Clinton and the Continuing Effort to Reassert Congress’ Predominant Constitutional Authority to Commence, or Prevent, War, 105 Dick. L. Rev. 157, 159 (2001) (citing debate transcript from Constitutional Convention’s Committee on Drafting to demonstrate broad agreement that the executive cannot “commence war”); see also The Federalist No. 69 at 465 (Alexander Hamilton) (Cook ed. 1961) (distinguishing the power of the President as “much inferior” to that of the British King because it does not extend to “the declaring of war and to the raising and regulating of the fleets and armies”).

[7] U.S. Const. art. II, § 2.

[8] Donald A. Dechert, III, Note, Perpetual Warfare: Proposing a New American Constitutional Amendment for the War Powers, 52 Val. U. L. Rev. 457, 482 (2018); see also U.S. Const. art. I, § 8, cl. 18.

[9] Id. at 461–62; see also, e.g., Joint Resolution of December 12, 1941, Pub. L. No. 77-331, 55 Stat. 796 (formally declaring war on Germany during World War II).

[10] Jennifer K. Elsea & Matthew C. Weed, Cong. Rsch. Serv., RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications 23 (Apr. 18, 2014).

[11] See, e.g., Novack, supra note 5, at 249–50 (“[T]he Obama Administration’s military actions in Libya and operations against al-Qa’ida (including its affiliates, associated forces, and successors) in Yemen, Somalia, Iraq, and Syria occurred and continue without explicit congressional authorization”).

[12] Elsea & Weed, supra note 10, at 4.

[13] Dechert, supra note 8, at 462.

[14] 50 U.S.C. §§ 1541–48.

[15] Michael J. Glennon, The War Powers Resolution Ten Years Later: More Politics than Law, 78 Am. J. Int’l L. 571, 571 (1984).

[16] Brandon, supra note 4, at 1855.  Since its passage, the War Powers Resolution “has been ignored or flouted far more frequently than followed” and even when presidents have complied with its requirements, “they have sometimes done so without conceding the existence of a constitutional obligation.” Id.

[17] See, e.g., Richard E. Levy, Presidential Power in the Obama and Trump Administrations, 87 J. Kan. Bar Ass’n 46, 47 (2018) (“One consistent trend since the time of the founding has been the expansion of presidential authority.  In recent years, this trend has accelerated at an exponential rate, propelled by the war on terror and the dysfunction of our hyperpartisan Congress”).

[18] Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 7 (2006).

[19] Novack, supra note 5, at 268. Before ascending to the vice presidency, Cheney offered a “vociferous defense of executive prerogative” as Wyoming’s senior representative in the House in response to “outright congressional fury” at the Nixon administration for its defiance of congressional mandates during the Iran-Contra affair. Id.  Later, as Vice President, Cheney “staffed the White House with individuals who shared his belief that the executive branch was aptly suited for expansive power,” thus setting the stage for the full embrace of the unitary executive theory in the aftermath of 9/11. Id. at 271.

[20] Id. at 272.

[21] Michael P. Scharf, The Torture Lawyers, 20 Duke J. Compar. & Int’l L. 389, 391 (2010).

[22] See, e.g., Gregory P. Noone, The War Powers Resolution and Public Opinion, 45 Case Western Rsrv. J. Int’l L. 145, 152–54 (2012) (detailing decades of public opinion polling demonstrating broad agreement that congressional approval should be required for the President to take military action); see also, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (rebuking the Bush administration’s assertion of the authority to deprive detainees at Guantanamo Bay of access to federal courts as an attempt to “turn our system of checks and balances on its head”).

[23] Novack, supra note 5, at 272.

[24] Id. at 272–73.

[25] President Obama has since stated that our military action in Libya “didn’t work” and that “failing to plan for the day after” was his worst mistake as president. Dominic Tierney, The Legacy of Obama’s ‘Worst Mistake’, The Atlantic (Apr. 15, 2016),

[26] Authority to Use Military Force in Libya, 35 Op. O.L.C. 20, 31 (2011).

[27] See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (authorizing military action against those responsible for the 9/11 terrorist attacks).

[28] See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498.  

[29] Levy, supra note 17, at 47.

[30] Chemerinsky, supra note 18, at 16 (“The framers of the Constitution feared executive power the most”).

[31] Desiderio, supra note 2.

Post image by Daniel Mennerich on Flickr

Holder v. Humanitarian Law Project may prove to be simply the beginning of a rich vein of emerging jurisprudence at the intersection of national security and civil liberties. Indeed, the majority’s determination that “strict scrutiny” applies may yet prove to be the most important aspect of the decision, one that will not always break the government’s way.

Over the course of the post-9/11 era, the Supreme Court has had a fair amount to say about the government’s response to terrorism as that response relates to military detention and trial before military commissions.[1] Notably, however, it has not had much to say about federal criminal law relating to terrorism until very recently.  That changed in June 2010 with the Court’s decision in Holder v. Humanitarian Law Project, which rejected a series of constitutional challenges to a key counterterrorism statute.[2]

The law at issue—18 U.S.C. § 2339B[3]—is frequently referred to as the “material support law,” as its essential function is to prohibit the provision of “material support or resources” to designated foreign terrorist organizations.[4] “Material support or resources,” in turn, is defined to include:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.[5]

The term “training” in that definition is further defined to mean “instruction or teaching designed to impart a specific skill, as opposed to general knowledge,” while the phrase “expert advice or assistance” is defined to mean “advice or assistance derived from scientific, technical or other specialized knowledge.”[6]

From the government’s perspective, the material support law is important in two distinct ways.  First, it has an unfocused preventive function in that it inhibits the flow of various forms of support to foreign terrorist organizations, thus (hopefully) limiting their capacity to cause harm.  In this respect, the statute functions much like a conventional embargo provision; one merely substitutes the notion of a foreign terrorist organization for the notion of a hostile foreign state as the object of the embargo.

Second, it has a focused preventive function insofar as a person providing support—and thus subject to prosecution and then incarceration in jail—also is a person whom the government believes to be personally dangerous.  The latter function is particularly important in circumstances in which a suspected agent of a foreign terrorist organization cannot be linked to a particular plot.  The broad definition of support cited above, combined with a permissive mens rea element,[7] ensures that it is relatively easy to charge in comparison to, say, conspiracy to commit a violent act in violation of 18 U.S.C. § 956(a).

On the other hand, these same features also raise an array of constitutional concerns.  Is the statute vague or overbroad?  Does it violate the First Amendment in terms of expression or association?  Does it impute guilt-by-association in violation of the Fifth Amendment?  More generally, does the existence of the material support law unduly chill the activities of journalists, advocates, and human rights groups?

These were among the concerns raised by a set of individuals and groups led by the Humanitarian Law Project (“HLP”), which is a non-governmental organization wishing to provide various forms of support for the humanitarian and political activities of the Kurdistan Workers’ Party (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”), both of which have been designated as foreign terrorist organizations since 1997.[8] Anticipating that such activities would expose them to prosecution, HLP—for ease of reference, I will refer to all the coplaintiffs collectively as HLP from this point—sought declaratory and injunctive relief in a civil suit filed in California, which ultimately arrived at the Supreme Court after twelve years of lower court litigation.  There, by a 6-3 margin, a majority of the Supreme Court rejected HLP’s argument that the material support law is unconstitutionally vague insofar as it prohibits “training,” “expert advice or assistance,” “service,” or “personnel,” and that, in any event, the law unconstitutionally infringes freedom of expression and association.[9]

The key to understanding the majority opinion by Chief Justice Roberts is that it considers HLP’s arguments through an as-applied lens, emphasizing the particular actions that HLP proposed to undertake rather than engaging in an open-ended review.  In particular, the opinion examines the arguments in view of HLP’s stated desire to (1) train PKK members in the use of international law for purposes of dispute resolution, (2) teach PKK members how to petition for relief from “various representative bodies such as the United Nations,” and (3) engage in “political advocacy on behalf of Kurds” in Turkey (just as HLP’s copetitioner proposed to advocate on behalf of Tamils in Sri Lanka).[10]

The substantive analysis begins with the question of vagueness.[11] The problem with HLP’s position, the majority explained, was that the statute was not so much unclear as it was simply broad.[12] The ultimate question was whether the statute provided a “person of ordinary intelligence fair notice of what is prohibited,” the Court observed, and as to the particular actions proposed by HLP, there was more than adequate notice in that some were clearly covered and some were clearly not.[13] In particular, the terms of “training” and “expert advice or assistance” plainly encompassed the proposals to give training in relation to international law or in relation to petitioning bodies such as the U.N. for relief.[14] Conversely, none of the terms in the material support definition plausibly would extend to efforts by HLP to simply advocate on behalf of Kurds living in Turkey.[15] The term “personnel” would not apply because Congress defined that term to require a relationship of direction and control between the organization and the individual, and the term “services” would not apply because the Court understood it to require “concerted activity” actually coordinated between the organization and the individual.[16] The majority conceded that HLP had identified less-readily classifiable scenarios that might arise, but dismissed these as “entirely hypothetical.”[17] Thus the Court left the door open to a revival of the vagueness argument if and when such fact patterns might actually arise.

Having dispatched the vagueness challenge, and having determined along the way that the material support law simply does not apply to the independent advocacy proposed by HLP, the majority then turned to the question of whether the statute violated the First Amendment’s protection of freedom of expression by prohibiting the two forms of training suggested by HLP.  Interestingly, the majority rejected the government’s suggestion that this question be answered with reference to a doctrinal framework of intermediate scrutiny, as would befit a content-neutral regulation with an incidental impact on expression.[18] It instead categorized the law as content based in this setting, reasoning that the law’s prohibition of “expert advice or assistance” turned on a content-contingent inquiry into whether expression involved specialized or merely general knowledge.[19] Thus the majority elected instead to apply strict scrutiny.[20] And though HLP conceded that the government has a compelling interest in suppressing terrorism, this development did seem to augur poorly for the government insofar as strict scrutiny requires the government to pursue the least restrictive means available to pursue such interests.  But despite the general perception that strict scrutiny is “fatal” in practice, it was not so in this instance.

The central dispute at this point—indeed, the central issue with the broad sweep of the material support law—was whether it mattered that HLP intended no harm by its proposed actions, and truly intended only to encourage terrorist groups to pursue peaceful means of achieving their ends.  If so, then the law plainly would be overinclusive and hence would fail strict scrutiny.  The majority concluded, however, that this characterization of the impact of HLP’s proposed actions failed to account for the indirect harm they might cause.  First, the majority noted that both Congress and the executive branch had formed the judgment that all forms of support to a foreign terrorist organization, no matter how innocuous on their face, were contrary to U.S. interests, and the majority expressly noted that the judiciary owed at least some degree of deference to such judgments in light of comparative institutional competence concerns.[21] Second, the majority concluded that this judgment was correct on the merits, irrespective of deference obligations.[22] It explained that seemingly innocuous support can be harmful in several respects.  At least when money or other monetizable assets are involved, for example, the support is fungible and hence either directly or via substitution will enable recipient groups to spend more on their violent activities.[23] But of course HLP was not proposing to give money to the PKK via these training activities (although, as the court noted, one of the copetitioners did originally propose to assist the Tamil Tigers in obtaining tsunami relief funds).[24] Thus it mattered a great deal to the majority’s analysis that it proceeded to make a distinct point about the indirect impact of seemingly-innocuous forms of support.  Whatever the form of the support, and whatever the intentions underlying it, support tends to “lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”[25] Once one accepts this descriptive account, the nexus between the government’s interest in suppressing terrorism and its selection of an embargo-style prohibition on a sweeping array of forms of support becomes much clearer and more defensible.

The majority then turned to the particular forms of training HLP proposed to give to the PKK, inquiring whether they presented a more sympathetic case than the general argument considered above.  The majority did not think so.  Instruction relating to international law, the court reasoned, could be employed to facilitate the use of negotiations as a stratagem designed to “buy[] time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.”[26] And such organizations might also use its newfound knowledge of the “structures of the international legal system . . . to threaten, manipulate, and disrupt”—an awkward phrasing that appears to suggest that such training would facilitate “lawfare” in the sense that groups might employ pretextual litigation as a means of restraining their state opponents.[27] As for training in the use of petitions for “relief,” the majority expressed uncertainty as to what HLP actually had in mind, but did note that to the extent that this might include monetary relief then it would present an easy case.[28]

This left only HLP’s freedom of association argument.  Here the Court drew a sharp distinction between punishment of association simpliciter and punishment of actions with associative aspects, but also with elements of transferring value of some kind to the recipient group.[29] Because the material support statute encompassed only the latter, in the majority’s view, prior decisions that struck down efforts to punish mere membership in various unpopular or subversive groups were not applicable.[30]

Reflecting on these arguments, it is tempting to treat Holder v. Humanitarian Law Project as a sweeping victory for the government, as an indication of clear sailing ahead for material support prosecutions in a broad array of circumstances.  But this would be premature if not foolish.  The majority’s opinion wraps up with a series of cautionary statements warning readers not to presume too much about the scope of the holding.[31] As the foregoing analysis emphasizes, after all, the Court’s rationale turned in substantial part on its decision to analyze HLP’s arguments through the lens of the specific and narrow set of actions HLP proposed to undertake.  Thus we find the majority warning at the end that one should not assume that “future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny,” that “a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” or “that Congress could extend the same prohibition on material support . . . to domestic organizations.”[32] Bearing this in mind, it seems most accurate to say that the majority was correct in its analysis within the narrow bounds it set for itself, and that the decision decides relatively little with respect to close cases that may arise in the future.

And that leads to perhaps the most significant question of all about the decision and its implications.  The fact of the matter is that the government has prosecuted violations of the material support law frequently since 9/11 (after having rarely used it between its enactment in 1996 and the fall of 2001), yet few if any of the cases actually brought involved anything resembling the conduct HLP proposed to carry out.[33] It thus is tempting to conclude that all of this discussion is merely academic.  But it seems to me that this would be too cavalier an attitude and that it would fail to account for the substantial impact that the mere prospect of prosecution can have.  That the statute has not, or at least has not often, been used in expression-sensitive ways does not mean that it cannot be.  The majority’s closing caveats seem to hold open the prospect for future declaratory judgment actions exploring these boundaries, perhaps intentionally so.  One can readily imagine, for example, a suit concerning the ability of lawyers to file amicus briefs or otherwise to provide counsel to designated groups.  Such litigation might draw attention to the little-discussed “license” option in § 2339B, for example, pursuant to which the Secretary of State in conjunction with the Attorney General may issue an “approval” that precludes prosecution on the grounds of providing “personnel,” “training,” or “expert advice or assistance.”  In the final analysis, in other words, Holder v. Humanitarian Law Project may prove to be simply the beginning of a rich vein of emerging jurisprudence at the intersection of national security and civil liberties.  Indeed, the majority’s determination that “strict scrutiny” applies may yet prove to be the most important aspect of the decision, one that will not always break the government’s way.

[1]. See, e.g., Boumediene v. Bush, 553 U.S. 723, 732–33 (2008) (holding that Congress violated the Suspension Clause by attempting to replace habeas jurisdiction with a truncated form of review for noncitizens held in military custody at Guantanamo); Hamdan v. Rumsfeld, 548 U.S. 557, 567 (2006) (holding that the system of military commissions established by presidential order violated the Uniform Code of Military Justice); Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004) (holding that the September 18, 2001, Authorization for Use of Military Force conferred authority to use military detention in relation to persons who bore arms for the Taliban in Afghanistan, but that an American citizen held on that ground has a Fifth Amendment right to more substantial procedural safeguards than had been given in that instance).

[2]. Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2009).

[3]. 18 U.S.C. § 2339B (2006).

[4]. In fact, § 2339B is only one of several such laws.  For an overview and discussion of the origins of § 2339B, see Robert Chesney, The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 Harv. J. on Legis. 1, 4–21 (2005).

[5]. 18 U.S.C. § 2339B(g)(4) (2006) (incorporating by reference 18 U.S.C.
§ 2339A(b)).

[6]. 18 U.S.C. § 2339A(b)(2)–(3) (2006).

[7]. There is no need to prove the defendant intended any harm, but simply that the defendant acted knowingly and with knowledge that the recipient either had been formally designated by the Secretary of State to be a “foreign terrorist organization” or at least that the defendant knew the recipient engaged in terrorist activity.  18 U.S.C. § 2339B(a)(1) (2006).

[8]. Press Release, U.S. Dep’t of State, Office of the Coordinator for Counterterrorism, Foreign Terrorist Organizations (Nov. 24, 2010), available at

[9]. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2712 (2009).

[10]. Id. at 2716–17.

[11]. Prior to this point, the opinion does consider and dismiss the possibility of invoking the canon of constitutional avoidance so as to adopt an interpretation of the material support law that, HLP argued, would avoid any constitutional objections.  HLP suggested that the Court read into the statute a mens rea requirement pursuant to which the government would have to prove that the defendant intended for any support he or she provided to contribute to harm or an unlawful end.  The majority declined to do so, reasoning that Congress had specifically chosen not to do this in the first place and thus that such an interpretation would amount to revision rather than interpretation.  See id. at 2717–18.

[12]. See id. at 2719–21.

[13]. See id. at 2720–22.

[14]. See id. at 2720.

[15]. See id. at 2721–22.

[16]. Id.

[17]. Id. at 2722.

[18]. Id. at 2723.

[19]. 2723–24.

[20]. Id. at 2724.

[21]. See id. at 2727.  For a discussion of comparative institutional competence claims in the national security setting, see generally Robert Chesney, National Security Fact Deference, 95 Va. L. Rev. 1361 (2009).

[22]. Humanitarian Law Project, 130 S. Ct. at 2727.

[23]. Id. at 2725–26.

[24]. See id. at 2729.

[25]. Id. at 2725.

[26]. Id. at 2729.

[27]. Id.

[28]. Id.

[29]. Id. at 2719.

[30]. Id. It is not clear that this is entirely correct.  Notably, the definition of “support” includes the term “personnel,” which is further defined to include the act of providing one’s own self to a group and being subject to its direction or control.  This is, in a sense, a membership prohibition, and in that singular respect Scales v. United States, 367 U.S. 203, 229 (1961) would seem to require that a mens rea of intent be read into the law in order to avoid constitutional difficulties.  But HLP’s proposed actions did not implicate this particular use of the material support law, and the issue received no mention in the opinion.

[31]. Humanitarian Law Project, 130 S. Ct. at 2730.

[32]. Id.

[33]. For an overview of § 2339B prosecutions, see Robert M. Chesney, Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data in Light of the ‘Soft-Sentence’ and ‘Data-Reliability’ Critiques, 11 Lewis & Clark L. Rev. 851, 894–901 (2007) (including an appendix listing prosecutions between 2001 and 2007).