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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 21, 2010 ::
    So, what have we got in Holder v. Humanitarian Law Project? (See earlier posts: this is a summary.)

    We've got: foreign organizations that might be called "dual-use": some of their activities are terrorist, others are not; and American citizens who sympathize with them and want to help their non-terrorist goals, in ways that are speech-like, though also susceptible to more concrete and specific definitions.

    Congress might have banned such activity in a scattershot way that would indeed have violated the First Amendment. But instead, it restricted the ban to:

    * a subset of defined (though admittedly speech-like) activities, and then banned them --

    * when, but only when, they are carried out in conjunction with foreign terrorist organizations, not when they are done independently; and even this --

    * only when said organizations have been labeled terrorist through adjudication, not through some bureaucrat's pen-tick.

    Still a 1st Am violation? Get a life.

    If it is, then -- see the tail end of Part V of the majority opinion -- the 1st Am would have protected U.S. citizens who might have gone to Germany or Japan during World War II to counsel Axis policy-makers (who, after all, have civilian as well as military goals) on ways to use international law to promote peace (precisely one of the activities in which HLP wanted to engage with their friends). Congress might indeed have allowed this, but the 1st Am would certainly not have compelled it to.

    HLP's desired conduct, unlike the conduct in the above hypo, cannot be called treason, since we are not at war with the PKK or the Tamil Tigers. But the point where the law of treason leaves off is not the point where the 1st Am kicks in, with Congress powerless to protect national security in between.

    :: David M. Wagner 5:36 PM [+] ::

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