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Holder v. Humanitarian Law Project’s Shadow: When Fear Suppresses Disfavored Voices

By John Kimble

In 2010, the Supreme Court held in Holder v. Humanitarian Law Project (HLP) that “material support,” as defined in § 2339B of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), includes a humanitarian organization’s efforts to teach a U.S.-designated foreign terrorist organization how to engage in international affairs peaceably.  In deferring to Congress’ proclamation that such support is “fungible” and “legitimizes” foreign terrorist organizations, the Court departed sharply from First Amendment precedents.

This Note examines scholarship that has proliferated since HLP.  The Introduction describes Zoom Video Communication’s cancellation of a university event at which Leila Khaled, a member of a U.S.-designated foreign terrorist organization, was scheduled to speak.  The cancellation of this event alarmed many First Amendment advocates because it suggested that HLP was chilling otherwise constitutional speech.  Part I analyzes HLP and subsequent cases applying its holding.  Part II shows how expansive interpretations of 18 U.S.C. § 2339B, the material support statute at issue in HLP, conflict with First Amendment jurisprudence.  Part III calls on Congress to rectify the First Amendment problems that HLP and its applications have created and urges courts to interpret § 2339B narrowly in order to protect Americans’ free speech rights.

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