As some may know, David Cole was the main author of the briefs in two landmark flag-burning cases: Texas v. Johnson (1989); and United States v. Eichman (1990). William Kunstler, who argued both cases, commented that as the author of those briefs Cole was “the intellectual architect of the courtroom victories.” (See also Collins & Chaltain, We Must not be Afraid to be Free.)
David Cole likewise argued Reno v. American-Arab Anti-Discrimination Committee (1999) (First Amendment challenge to the selective enforcement of the immigration law against Palestinian immigrants based upon their political associations and activities). National Endowment for the Arts v. Finley (1998) was another First Amendment case Professor Cole argued (First Amendment challenge to NEA’s politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made “taking into consideration general standards of decency.”) He also served on the Advisory Board of The Free Expression Policy Project.
→ His most recent book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016) (see also his remarks at Politics & Prose Bookstore, April 2016) (YouTube)
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For now, let us turn to Professor Cole’s arguments to the Court in Holder v. Humanitarian Law Project (2010), the “material support” to terrorist organizations case. Below are some selected excerpts from the oral arguments in that case:
Core political speech
Mr. Cole: Mr. Chief Justice, and may it please the Court: This as-applied challenge asks whether the government can make it a crime for Ralph Fertig and the Humanitarian Law Project to speak in association with the Kurdistan Workers Party.
Specifically, they seek to advocate for legal reform in Congress and the UN, to write and distribute articles supportive of Kurdish rights, to inform the Kurds of their international human rights and remedies, and to advise them on peaceful conflict resolution.
It is undisputed that the Kurdistan Workers Party engages in a wide range of lawful activities and that plaintiffs seek to support only lawful ends.
The government has a concededly compelling interest in combatting terrorism, yet it has not even tried to defend these prohibitions under strict scrutiny.
Instead, it rests its entire case on the proposition that criminalizing plaintiffs’ speech is a regulation of conduct, not speech, and therefore can be upheld under O’Brien. . . .
Justice Stevens: But, Mr. Cole, don’t you agree that some of the speech could be regulated?
Mr. Cole: –Some of my clients’ speech?
Justice Stevens: Some of the speech of your client.
Mr. Cole: I don’t think — I don’t think any of it could be prohibited, Your Honor, unless the government can satisfy the stringent scrutiny that this Court applies when Congress seeks to prohibit pure speech. . . .
Justice Stevens: You think all of the speech at issue is protected?
Mr. Cole: –I think that certainly all of the speech that I’ve just identified, which is the core–
. . . . It’s core — and I think the reason, Your Honor, is it is core political speech on issues of public concern.
It is advocating only lawful, peaceable activities.
This Court has never upheld the criminal prohibition of lawful speech on issues of public concern.
“Money is different”
Justice Kennedy: Well, could the government, I assume — I assume you will say NGO or other organization or person from giving tsunami aid to one of these organizations, from giving them money?
Mr. Cole: I think money is different, Your Honor.
Justice Kennedy: Could they — could the government prohibit that?
Mr. Cole: I think money is different because it’s . . . conduct, not speech.
Make Distinctions: Aid, support & membership
Justice Scalia: Any assistance you provide to these organizations cannot be separated from assistance to their terrorist activities.
Mr. Cole: Well, Your Honor, that is precisely the argument that the United States made to this Court in Scales.
And here I’m quoting from the government’s brief:
“Active membership can be proscribed even though the activity be expended along lines not otherwise illegal, since active support of any kind aids the organization in achieving its own illegal purposes. “
That was with respect to an organization that Congress spent 10 years studying, made findings that it was an international conspiracy directed and controlled by the Soviet Union with the aim of overthrowing the United States by force and violence, using terrorism.
And, nonetheless, this Court in Scales held you’ve got to distinguish between that aid and support and membership which is furthering the lawful activities and that which is furthering the illegal activities; otherwise you are penalizing the exercise of lawful speech.
The Court said the same thing in De Jonge.
Justice Ginsburg: Mr. Cole, as I remember, Scales upheld a conviction, wasn’t–
Mr. Cole: It did, Justice Ginsburg, but only because it interpreted the statute to be — to be limited to specific . . . members — active membership that is specifically intended to further the illegal ends of the group, precisely–
. . . .
“Speech Tantamount to Material Support”
Justice Kennedy: Suppose the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization.
Mr. Cole: Well, two things in response to that, Justice Kennedy.First, that is what the United States argued in Scales. And, again, the Court, not only in Scales but in a host of cases striking down Communist Party statute, said you have to distinguish between aid that’s intended to further lawful activity and aid that’s intended to further illegal activity when it’s in the form of protected activity — association, here speech and association.
Justice Stevens: In those cases, the real question was whether membership was enough, wasn’t it?
Mr. Cole: Active membership . . . which the government says constitutes more than mere nominal membership.
Justice Kennedy: And this is support. It’s different.
Mr. Cole: Well, Your Honor, in De Jonge, one of these cases, one of this Court’s first First Amendment cases, the government argued that Mr. De Jonge aided the Communist Party in its illegal ends by conducting a meeting for them and being their lead speaker at the meeting.
And this Court said: We’ve got to look at what he did, and what — yes, he conducted the meeting; yes, he was a member of the Communist Party; yes, he solicited people to join the Communist Party.
But what did he do? He advocated lawful peaceable activities.
Justice Kennedy: But there wasn’t a statute on the books that prohibited material support–
Mr. Cole: Well, I don’t think it would–
Justice Kennedy: And here there is, and this is in aid of that prohibition.
Mr. Cole: Right, but Your Honor, what would — if Congress came along after the Communist Party cases and said, okay, you’ve said we can’t make it a crime to criminalize membership in the Communist Party; we are now going to make it a crime to speak in conjunction with the Communist Party — do you think the decisions would have come out any differently?I don’t think so, because this Court has said that speech is different from money, that it–
Justice Scalia: I think it’s very unrealistic to compare these terrorist organizations with the Communist Party. Those cases involved philosophy. The Communist Party was — was — was more than a — than an organization that — that had some unlawful ends. It was also a philosophy of — of — of extreme socialism.And — and many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.
Mr. Cole: Your Honor, this Court accepted Congress’s findings.Congress’s findings were not that this was a philosophical debating society, but that it was an international criminal conspiracy directed by our enemy to overthrow us through terrorism. . . .
Justice Scalia: They joined it for philosophical reasons. These terrorist organizations have very practical objectives. And the only reason for joining them or assisting them is to assist those practical objectives.
Mr. Cole: Well, I don’t think that’s — I don’t think that’s fair, Justice Scalia. The Humanitarian Law Project has no interest in furthering terrorism, but the Kurdistan Workers Party are the principal representatives of the — of the Kurds in Turkey. They do have an interest in protecting the rights of the Kurds. They do have an interest in encouraging the Kurdistan Workers Party to — to disavow violence and engage in lawful peaceful means of resolving their disputes . . . .
* * Additional Materials * *
→ David Cole on the ‘Material Support’ Law and the Constitution, American Constitution Society, November 30, 2010 (YouTube)
→ David Cole, “The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine,” 6 Harv. L. & Pol. Rev. 147 (2012)
→ James Bamford, David Cole & Margaret Russell — PATRIOT Acts I & II: New Assault on Liberty?, The Independent Institute, November 2003 (YouTube)
Ron Rotunda: “The ABA Overrules the First Amendment” Read More