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Holder v. HLP – the statutes

Holder v. HLP – the statutes.

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Holder v. HLP – the statutes

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  1. Holder v. HLP – the statutes • 18 USC § 2339B(a) – “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, [shall be fined or imprisoned up to 15 years.] [A] person must have knowledge that the organization is a designated terrorist organization [or] that the organization has engaged or engages in terrorist activity.” • “Material support or resources” = 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 (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials (18 USC § 2339A) • Training= instruction or teaching designed to impart a specific skill, as opposed to general knowledge • Expert Advice or Assistance= advice or assistance derived from scientific, technical or other specialized knowledge

  2. Holder v. HLP – who got it right? • SCT says – statutes only allow punishment of expressive activity that is “coordinated” material support (NOT independent advocacy). • Who has the better argument on whether the statute violates the First Amendment -- majority or dissent? • Does protection of “non-coordinated (i.e., independent) advocacy on behalf of terrorists really protect speech? • What is speech “to, under the direction of, or in coordination with” a group? • What if you want to file an amicus brief on behalf of a designated organization? • What if you maintained a website claiming that the US actions were evil that linked to their websites and posted translated videos advocating jihad? • What does HLP suggest about how Dennis/Scales/Brandenburg fit together?

  3. The First Amendment status of threats • Watts and later cases make clear that the 1st Amendment permits a State to ban a "true threat.” • State interests are served by punishing threats: • Protect from real fear of violence • Protect from disruption caused by fear • Protect from social costs caused by fear and disruption • How does Watts court determine when a “true threat” exists? • Content of Speech– what did speaker say? • Context of Speech– in what circumstances does speech occur? • Why isn’t Watts’ speech threatening under this test? • What is the majority worried about if his speech is punished? • What is Douglas worried about?

  4. What role does “intent” play in determining a true threat? • Prior to Virginia v. Black, lower courts took different approaches: • Reasonable speaker – should speaker have reasonably foreseen that someone would take her speech as a threat? • Reasonable listener – would a reasonable listener find the speaker’s statements threatening? • Defining intent this way raises significant line-drawing concerns re whether we are punishing too much speech • Asking whether one “should have foreseen” or allowing an audience member to determine existence of a threat makes it harder for speaker to determine when speech will be considered a threat • Potential chilling effect on speaker

  5. Virginia v. Black and SCT’s intent reqm’t • "True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals [although the] speaker need not actually intend to carry out the threat. • Virginia v. Black, 538 US 343 (2003) • What does the phrase “speaker means to communicate . . . intent to commit act of violence” mean? • Must the speaker subjectively intend to threaten someone? • Or must the speaker subjectively intend to communicate with someone while that person reasonably regards the communication as a threat? • Lower courts take both approaches so there are still some potential “chilling” issues that can arise

  6. Threats doctrine in application • Do problems 1 & 2 (pp. 79-80) involve a true threat? • What factors (as they apply to Watts’s “content/context” approach) in each scenario argue in favor of or against there being a true threat?

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