Vo.4-Moshirnia-Final

415 Harvard National Security Journal / Vol. 4
threatening activities: “train[ing] members of [an FTO] on how to use
humanitarian and international law to peacefully resolve disputes”;
“engag[ing] in political advocacy on behalf of Kurds who live in Turkey”;
and “teach[ing FTO] members how to petition various representative
bodies such as the United Nations for relief.” 164 HLP asked that the Court
interpret the statute’s use of “knowingly” to impose a mens rea requirement
that the individual knows or intends to assist with unlawful terrorist actions.
The Court first held the law was not unconstitutionally vague 165 and
that an offender need not intend to further a terrorist organization’s illegal
activities 166 in order to trigger liability under the statute. The Court then
distinguished the statute from a restriction on individual speech. Under the
statute, individuals “may speak and write freely about” terrorist
organizations. 167 The Court repeatedly stressed that the law would not
reach independent advocacy. 168 However, the statute does criminalize “a
narrow category of speech” that is made “to, under the direction of, or in
coordination with foreign groups that the speaker knows to be terrorist
organizations.” 169
The Court held that this prohibition was constitutional in light of the
danger posed by terrorist organizations. 170 Positing that support is fungible,
the Court reasoned that providing expertise on non-violent advocacy could
164 HLP, 130 S. Ct. at 2716.
165 Id. at 2720.
166 Id. at 2721. The Court in HLP did not address questions involving journalistic or
electoral “support.” However, offering legal representation before the UN would run afoul
of the law.
167 Id. at 2723. The perception of legitimacy of FTOs’ causes played a large role in the HLP
decision. The Court noted that advising or advocating for FTOs may increase the
legitimacy of terrorist groups. However, the Breyer dissent points out that this assertion has
no factual support. The legitimacy of a group’s terrorism may have little to do with the
support it receives for nonviolent activities.
168 See HLP, 130 S. Ct. at 2721. (“The statute makes it clear that ‘personnel’ does not cover
independent advocacy: ‘Individuals who act entirely independently of the foreign terrorist
organization to advance its goals or objectives shall not be considered to be working under
the foreign terrorist organization’s direction and control.’”).
169 HLP, 130 S. Ct. at 2730–31.
170 Id. at 2725–27 (“Indeed, some designated foreign terrorist organizations use social and
political components to recruit personnel to carry out terrorist operations, and to provide
support to criminal terrorists and their families in aid of such operations.”).