Vo.4-Moshirnia-Final

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precisely what more is required may well cause many individuals to avoid
speaking on the subject of terror. As a result, the Court’s decision in HLP
will likely chill the speech of any aid organizations, academics, or journalists
that have had contact with foreign terrorist organizations.
Furthermore, the Court does not define any of the three speech
conditions that trigger material support liability. While “directed to” seems
fairly straightforward, the vagueness inherent in “coordinated” is likely to
chill speech. Justice Breyer noted that he was “not aware of any form of
words that might be used to describe ‘coordination’ that would not, at a
minimum, seriously chill not only the kind of activities the plaintiffs raise
before us, but also the ‘independent advocacy’ the Government purports to
permit.” 260
The term coordination is not defined as part of any criminal statute
in 18 U.S.C. Although the term “coordinated communication” is defined in
11 C.F.R. § 109.21, 261 the definition is couched in the rather dissimilar
electioneering context. Disregarding the language of a communication’s
financial sponsorship, the term is defined in terms of speech content 262 and
speaker conduct. 263 There, speech is considered coordinated if “the
communication is created, produced, or distributed at the request . . . of a
candidate.” 264
At least one plausible interpretation of “coordination” would be that
the terrorist organization approves of the content of the speech and requests
that another party disseminate that speech; a surrogate speaker, in a sense.
While we do not know the exact contours of “coordination,” we do know
that the speaker need not share the same goals as the terrorist
organization. 265 It seems, therefore, that a coincidence of wants between the
speaker and the terrorist group—that is, a desire that the message be
published—would likely qualify as coordination even if there was no
coincidence of motive. This renders the restriction distinctly content-based
and overinclusive. It would not be surprising if an FTO coincidentally
260 HLP, 130 S. Ct. at 2737 (Breyer, J., dissenting).
261 Answering, “What is a ‘coordinated communication’?” for the purposes of federal
election law. 11 C.F.R. § 109.21 (2010).
262 Id. § 109.21(c).
263 Id. § 109.21(d).
264 Id.
265 HLP, 130 S. Ct. at 2717–18.