0:00

We'll. Hear argument first this morning

0:02

in Case Zero Eight, Fourteen Ninety

0:04

Eight Older vs. Humanitarian Law Project.

0:07

And the Cross petition. Hey

0:12

everyone this. Is Leon from Prologue

0:14

projects On this episode of Five

0:17

to Four, Peter Riyadh in and

0:19

Michael are talking about Holder v

0:21

Humanitarian Law Project. This case was

0:23

brought by the Law Project to

0:26

preemptively challenge a law that would

0:28

make it illegal to provide material

0:30

support or resources to groups that

0:32

the Us Government classifies as terrorist

0:34

organizations. Sounds reasonable enough, but look

0:37

a little closer and they've written

0:39

the law so broadly that criminalizes

0:41

sure speech. The core. Of

0:43

what are the First Amendment is designed

0:46

to protect, The result of the law

0:48

is that lawyers cannot provide representation to

0:50

organizations on the government's terrorism list, even

0:52

when the lawyers work is meant to

0:54

push the group's towards more peaceful and

0:57

legal solutions. This is five to four

0:59

podcast about how much the Supreme Court.

1:01

Sucks. Welcome.

1:07

To five to four where we dissect

1:09

than analyze the Supreme court cases that

1:12

have destroyed our civil rights like an

1:14

eclipse destroying Donald Trump's redness. Nine, Peter.

1:17

I'm here at Michael Everybody and ran

1:19

a. High not my retinas.

1:21

I'm different. Death I listen to

1:23

you the medical science and as

1:25

your I now Merkel science as

1:28

well. This

1:30

is not based on anything, but I do believe that he

1:32

looked at this one too. I believe I can't look at

1:35

all of them. That we all have the

1:37

hard evidence of the video at the

1:39

White House of the President on the

1:41

balcony staring up directly into the Eclipse.

1:43

By I believe in my heart that

1:45

it did happen again. My sincere belief

1:47

is that he did it the first time

1:49

ever and made fun of him. Me, he

1:51

did not have any adverse effects and that

1:53

convinced him that in fact, common wisdom is

1:55

wrong and you can look at eclipses. And

1:58

then he did it again, this time. Even

2:00

more weight. So you think Trump did it

2:02

again, ran and you think Biden did it

2:04

as well. Hello know I did it again

2:07

by feminists are just not at the white.

2:09

House Yeah, I want to put

2:11

it back. Biden deficit Vasil as

2:13

it is not. you do spears

2:16

this with. A

2:18

subsidy in a whole conversation with as. Far

2:22

as today's case Holder

2:24

v Humanitarian Law Project,

2:26

this is a case

2:28

about. The. Patriot Act.

2:31

And. Terrorism. And

2:33

also free speech. As.

2:36

You probably know. The Patriot Act

2:38

was a piece of legislation passed

2:40

in the wake of Nine Eleven,

2:42

ostensibly to combat terrorism, though it

2:44

is most famous. For. Being a

2:46

little light on it's respect for

2:48

civil liberties. It's perfect. Yeah,

2:51

you could say that as. Though it's against

2:53

the law to provide material

2:55

support to. Designated.

2:57

Of foreign terrorist organizations and and

2:59

a Patriot Act comes along and

3:01

goes even farther than that. And.

3:04

Says at this includes providing

3:06

training or expert advice or

3:08

assistance to terrorist organizations. Now,

3:10

the Humanitarian Law Projects and

3:12

some other plaintiffs brought this

3:14

to ports on the grounds

3:16

that it potentially violates the

3:18

First Amendment. They. Pointed out

3:21

that they provide material support quote

3:23

unquote to the Kurdistan Workers Party,

3:25

The Pkk, and the Liberation Tigers

3:28

of Tamil. The Alarm On The

3:30

Tamil Tigers. Both. Designated

3:32

Terrorist Organizations sense. But.

3:35

The support that they provided as

3:37

organizations is decidedly non violent. In

3:39

fact, they are trying to train

3:41

them on peaceful conflict resolution, such

3:43

as how to bring human rights

3:45

violations before the Un. So.

3:47

They're saying hey, are not actually

3:49

providing support Terrorism We have a

3:52

right to free speech and free

3:54

association as long as we're not

3:56

actually facilitating violence. So. This.

3:58

Law is unconstitutional. But. The

4:00

Supreme Court. In a six

4:02

to three decision. says. No.

4:05

Terrorist. Groups are bad guys city

4:07

and you can't be friends with bad

4:10

guys then? yeah, can't do anything with

4:12

bad guys that would make them less

4:14

bad. Yeah, crazy right? advice. Either bad,

4:16

they're bad if you do anything with them that

4:18

movie or bad. We sat down like that's what

4:20

this. Comes after if offences. We're

4:24

not discussing this any further. To

4:26

fit right. Let's

4:29

jump right in here. There's some terrorism and

4:31

them, let's let's jump right in here.

4:33

And like Peter said, there's a lot

4:35

happening in this case. Ah, the boys

4:37

are laughing while I'm saying this. Because.

4:39

It's it's. it's it's. It's

4:42

he says. I started this sentence by saying

4:44

this case was about. Terrorism that here

4:47

are the. Rally

4:49

Defeat The Okay really can't live

4:51

out in or know it is

4:53

about me being terrorized by John

4:55

Roberts. Yeah, many ways. Oh, Absolutely.

4:58

Yeah, this was terrorism to my

5:00

brain to read this opinion. Absolutely

5:02

Okay, so let's start out by

5:05

taking us back to the mid

5:07

nineties. In. Ninety Ninety Six,

5:09

Congress passed the Anti Terrorism and

5:11

Effective Death Penalty Act. That's A

5:13

E D P A. It's known

5:16

as Admin. And an At

5:18

the made it illegal to provide material

5:20

support. To foreign groups that

5:22

are designated by the United States

5:25

government's as terrorists organizations. So

5:27

who decides who the foreign

5:29

terrorist organizations? That's. The Secretary of

5:31

State. And the law

5:33

says that giving material support

5:35

to any of those foreign

5:37

terrorist organization is a crime.

5:39

So what is material support

5:41

mean That is defined pretty

5:43

broadly. and the Patriot Act

5:45

which was passed some years

5:48

after at baths expanded the

5:50

definition of material support even

5:52

more. Material support is defined

5:54

as giving funds and tangible

5:56

goods to an organization. obviously

5:58

literally material support. It

6:00

also includes any quote

6:02

service. Expert advice or

6:04

assistance. Training and

6:06

personnel. Now. We'll talk about all

6:08

of this in a minute, but like a lot of those

6:10

things can be applied. To speeds. Speech.

6:13

Can be assistance. So.

6:16

Under the law individuals face up

6:18

to fifteen years in prison for

6:20

providing. Any of this

6:22

material support to foreign terrorists

6:24

organizations, even if their work

6:26

is intended to promote peaceful,

6:28

lawful objectives. So. Enter

6:31

it the Humanitarian Law Project. This

6:33

was a Human Rights Organizations in

6:35

American nonprofit corporation founded in Nineteen

6:37

Eighty Five in Los Angeles. The

6:40

organizations mission was to promote quotes,

6:42

a peaceful resolution of conflict by

6:44

using establish international human rights laws

6:47

and humanitarian law. So. At

6:49

the time, Epa with past H

6:51

O P had already been working

6:53

the two organizations headed soon be

6:55

designated as foreign terrorist groups by

6:57

the United States. As Peter said

6:59

those words, the Kurdistan Workers Party,

7:01

The Pkk and the Tamil Tigers.

7:04

So. The humanitarian law has. Provided.

7:07

Various forms of support for.

7:09

The. Humanitarian and nonviolent political

7:11

activities of these two groups. So

7:14

for example, with the Pkk in

7:16

Turkey, H O P had been

7:18

providing training and expertise or unlike.

7:21

Dispute. Resolution Right through peaceful

7:23

and lawful means. It taught the

7:25

Pkk how to file human rights

7:28

complaints before the United Nations. It

7:30

helps to damn with advocacy for

7:32

Kurdish human rights in Turkey. It

7:34

assisted the Pkk in making connections

7:36

between the party and the Turkish

7:39

government. To convene peace talks. Stuff.

7:41

Like that right? Like this is nonviolent

7:43

work. This is the promotion of nonviolence.

7:46

Any encouragement of like diplomacy through

7:48

lawful means and to whatever extent

7:51

some of the activities of these

7:53

organizations like the Pkk were unlawful

7:56

or violence. That's not what H

7:58

O P. Was supported. By.

8:00

With At Bar and the Patriot Act

8:03

defining material support in the way that

8:05

they did, including in the definition of

8:07

material support. Raining and

8:10

advice or assistance. The.

8:12

Humanitarian Law Project was worried that

8:14

it's activities were suddenly made illegal,

8:16

right and would expose them to

8:18

criminal prosecution since it could count

8:20

as material. Support to a

8:23

foreign terrorist organization. So.

8:25

When the law was passed, but

8:27

before it went into effect, H

8:29

O P and other organizations that

8:31

were doing similar work who had

8:33

similar concerns, they sued in what's

8:35

called a pre enforcement. Challenge?

8:37

You're You're suing to Challenge.

8:39

The constitutionality of a new loss before

8:41

it's ever enforced. Saying if it is

8:44

enforce this is going to. Be

8:46

unconstitutional. So. That's how this

8:48

case makes his way to the Supreme Court. Yes,

8:50

Of the Law makes it illegal

8:53

to provide material support to organizations

8:55

that the United States government has

8:57

designated to be terrorist organizations and

8:59

that includes things like training and

9:01

expert advice and humanitarian law Project

9:03

wants to provide. Training.

9:05

And expert advice. Yes, you the

9:08

Pkk in the tunnel tigers rights

9:10

So they say hey, this violates

9:12

our First Amendment rights to free

9:14

speech and association. We wanna talk

9:16

to these folks, convey perfectly legal

9:19

non violent information to them. Ah,

9:21

and you are punishing that And

9:23

you're punishing us for our association

9:25

with them. And nothing more like

9:27

John Roberts. Rights. The Majority

9:30

Opinion. First things first, there are

9:32

some arguments about statutory interpretation and

9:34

constitutional vagueness doctrines that we're going

9:36

to skip because they're boring and

9:38

also I want to focus on

9:40

the core question of free speech

9:42

rain But before we do, I

9:44

wanna once again on his podcast

9:47

state that John Roberts system is

9:49

the worst writer on the court

9:51

is so bad and maybe I

9:53

don't want to say like the

9:55

worst. Writer: and supreme court history

9:57

i don't know whether that's true i will say this

10:00

There is no writer that I enjoy reading less.

10:03

And we've read a whole bunch of fucking opinions.

10:05

I'll tell you that. At

10:07

least 150 years ago, if you were a terrible

10:09

writer, you only wrote like three pages. You know

10:11

what I mean? I'm going

10:13

to do my best to articulate what

10:15

I think Roberts is saying in this

10:17

opinion. But I'm being

10:20

honest when I say like, I could

10:22

not really locate a coherent thread of

10:24

argument running through the opinion. I'm

10:27

just sort of doing my best. Seeing

10:29

this, I was struck by a thought, which

10:32

was this opinions from 2010. But

10:35

if I didn't know that, and

10:37

you told me this was like, I

10:39

prompted chat GPT, right? Yes. Yes.

10:42

In opinion. And this is what it gave

10:44

me. I would believe you. I would be

10:46

like, yes, this has the hallmarks of AI

10:49

bullshit. It's generally grammatically correct. And

10:52

it's got like a general good

10:54

format. But it's nonsense.

10:56

It's nothing underneath it. Each

10:58

sentence on its own,

11:01

you're like, okay, I think I get what he said. But

11:04

you start stringing them together and you're

11:06

like, what's happening? Your brain

11:08

starts like fraying. Yeah, right. I

11:10

was reading a law review article in preparation

11:13

for this episode. And this law professor says,

11:16

quote, the key to understanding the

11:18

majority opinion by Chief Justice Roberts

11:20

is that it considers HLP arguments

11:22

through an as applied lens, emphasizing

11:24

the particular actions that HLP proposed

11:26

to undertake rather than engaging in

11:28

an open ended review. The sentence

11:30

goes on. And it's like, if

11:32

you have to say, like, this

11:34

is how you can actually understand

11:36

this opinion, is if you do

11:38

this kind of mental gymnastics, right? Like,

11:41

it's just poorly written. It's

11:43

just bad. Incoherent. Right.

11:46

He constantly bounces around. There are many times where

11:48

I thought I had accidentally scrolled back in

11:50

the opinion because I was like, didn't we

11:53

do this? Anyway,

11:56

let's just get into it. The first issue we're going

11:58

to talk about here is free speech. Is

12:00

this all unlawfully infringing on the speech

12:03

rights of the Humanitarian Law Project? When

12:06

the court analyzes a law that limits

12:08

speech in this way, the

12:11

way the analysis is done is by asking two

12:13

questions. First, does the

12:15

law serve a compelling government interest, in

12:17

this case fighting terrorism, which everyone agrees

12:20

is a compelling government interest? And

12:22

second, if so, is the

12:25

law narrowly tailored to that

12:27

interest, which is a bit

12:29

of legal ease, but basically means the

12:31

law has to be as targeted as

12:33

possible, right? The smallest amount of collateral

12:36

damage to constitutional rights possible. This

12:38

analysis is called the strict

12:41

scrutiny analysis. And one of

12:43

the things about this analysis is that laws

12:45

almost never survive it. Almost

12:48

every time this comes up, the law

12:50

is struck down. In fact, before this

12:52

case, no restriction on speech had ever

12:54

survived the strict scrutiny analysis. This is

12:57

the first time. Till 2010, right? To

13:00

give you a sense of how

13:02

rigorous the strict scrutiny analysis is

13:04

supposed to be, the Supreme Court

13:06

has struck down laws that

13:09

were meant to crack down

13:11

on animal sacrifice and

13:14

child pornography by saying

13:16

that they were not narrowly tailored enough,

13:18

right? This is an analysis

13:21

that almost every law should fail

13:23

because it's almost impossible to meet

13:25

this burden. And that's the

13:27

point. That's supposed to be the point

13:30

of the strict scrutiny analysis. The idea

13:32

is the court invokes strict

13:34

scrutiny when they feel like a

13:36

fundamental right is being infringed on.

13:39

And they're saying, look, we don't

13:42

think the government should be

13:44

able to infringe on your fundamental rights.

13:46

That's the whole point of the constitution,

13:48

unless it has a really, really

13:50

good reason and does so really,

13:54

really carefully. Right. This

13:56

law really shouldn't survive this analysis.

14:00

No. Because, like, everyone

14:02

admits that it restricts the

14:05

otherwise legal and protected speech

14:07

of these organizations, right? Yes.

14:10

They are trying to provide counsel to

14:12

terrorist organizations, and we're going to say

14:14

terrorist organizations all the time, and it

14:16

feels very dramatic and shit, but we're

14:18

just talking about the legal designation, right?

14:20

Right. That's what the US government

14:22

has called them, right? Right. They are not doing

14:24

this in furtherance of any illegal activity,

14:27

right? But the law

14:29

still says you can't do it. This

14:32

should basically be the end of the

14:34

discussion because, again, the law is supposed

14:36

to be narrowly tailored, meaning that there

14:38

is minimal collateral damage to protected speech.

14:40

And pretty much everyone here has to

14:43

accept that there is a ton of

14:45

collateral damage to protected speech. The Humanitarian

14:47

Law Project is trying to provide perfectly

14:49

legal advice to these organizations, trying to

14:51

push them toward peaceful avenues of conflict

14:53

resolution, and the law says, no, you

14:56

can't do that. Which

14:58

means that it infringes on

15:00

harmless and legal speech, which means

15:02

it's not narrowly tailored. Right.

15:05

It should be that simple. That's right. That

15:07

really should be the end of it.

15:09

But what Robert says is that working

15:11

with these terrorist organizations, even if everything

15:13

you're doing is peaceful and lawful, could

15:15

help legitimize them and allow

15:18

them to free up resources for

15:20

terrorist activities. Now, this

15:24

is an argument that the government made

15:26

during their case, but they didn't offer

15:28

any actual evidence to support it. They

15:30

just sort of stated it. And it

15:33

doesn't really make sense because how would

15:35

giving legal advice to an organization free

15:37

up its resources for terrorist activities?

15:39

We've taught you how to make a complaint

15:41

to the United Nations. Now you

15:44

have lots of time for bombing or

15:46

whatever. That doesn't make sense. It's not like

15:48

you're giving them $1,000. John Yover

15:50

there is our bomb maker, but

15:53

we're going to send him

15:55

to a UN complaint seminar

15:58

to learn how to file. complaints

16:00

with the United Nations. That can't even be it

16:02

because then you have less time for bomb making,

16:05

right? It's

16:09

so fucking stupid and yet Roberts buys

16:11

it He says look the government says

16:13

that they think any advice given to

16:15

these groups facilitates terrorism and I believe

16:17

them Right. Yeah, no need to present

16:19

evidence or anything as if this were

16:22

some sort of court Yeah, or even

16:24

like a logical train of thought you

16:26

could follow like a hypothetical give us

16:28

a hypothetical I would love a hypothetical

16:30

of how learning how

16:33

to file a human rights complaint before the

16:35

UN could somehow allow you Like

16:38

more room to do terrorism. I

16:41

would love someone to just shoot us that hypothetical

16:43

on fucking Twitter or whatever Yes, either way I

16:45

feel like the government should have to make some

16:48

kind of cogent argument But they don't and yet

16:50

Roberts seems to buy it now I also want

16:52

to be clear that like if this is the

16:54

law Then you can sort of

16:57

make the argument that it should be illegal

16:59

to talk to like any criminal Yes, or

17:01

that it could be illegal to talk to

17:03

like any criminal, right? You're legitimizing them. So

17:06

you can't talk to gang members That's illegal

17:08

now, right? No one would think that that's

17:10

a serious argument, but that is the same

17:12

basic train of thought here Yeah And

17:15

then that's exactly the problem with the train

17:17

of thought and with this holding is that

17:19

you know freedom of speech freedom of association

17:22

It means that you

17:24

are allowed to associate yourself

17:26

You are allowed to state

17:28

political beliefs, right that are

17:30

unpopular that someone might say

17:32

are Dangerous to them

17:34

and their worldview, right? You're allowed

17:37

to associate with a group in

17:39

fact form groups and associate with

17:41

them over the long term in

17:43

ways that might Legitimize

17:46

those groups like in terms

17:48

of their membership, right? Yeah, but

17:50

you still have freedom of association

17:52

It's in spite of the downstream

17:54

effects of association that you know,

17:57

a group might be legitimized or

17:59

something and your freedom

18:01

of association is still supposed to be

18:03

constitutionally protected. Just because

18:05

you are associating with an unpopular

18:07

group, a group that does things

18:09

the United States government doesn't agree

18:11

with, right? That's really, really

18:13

not the reason why your First

18:16

Amendment rights should be limited. Right.

18:18

Yes. So again, the Humanitarian

18:20

Law Project is trying to teach these

18:22

organizations various legal avenues for vindicating their

18:24

concerns. That says, quote, a

18:27

foreign terrorist organization introduced to the

18:30

structures of the international legal system

18:32

might use the information to

18:35

threaten, manipulate, and disrupt. This

18:37

possibility is real, not

18:39

remote. Now,

18:43

he presents no actual evidence of this,

18:45

which again, I do think you should

18:47

need. Yeah. Yeah.

18:50

Also, it's weird to say this possibility

18:52

is real when what you actually mean

18:55

is this possibility is a purely hypothetical

18:57

thing I just made up. Like,

19:02

it's not like he cites a specific

19:04

example of like PKK doing this or

19:07

whatever. And also, abstraction is kind of

19:09

baked in there, right? Like the possibility is

19:11

real. Well, sure, every possibility

19:13

is real, but like the

19:15

actuality is not real. What is

19:17

possibility if not the chance that something is

19:19

real? Yeah. It's

19:23

not even like the possibility of violence

19:25

is real. It's the

19:28

possibility of obstruction, of delay.

19:31

Of a law at the UN or something.

19:33

Like, what are you talking about? Dude,

19:36

you don't know. You don't know what

19:38

they could do with a little

19:40

bit of knowledge at the UN. They

19:42

could really slow the UN down here.

19:46

They could notoriously nimble organizations,

19:48

the United Nations. Brought

19:52

to its knees by the Tamil

19:54

Tigers. a

20:00

complaint. Fluency in

20:02

their bureaucratic processes because of

20:04

the humanitarian law project. Oh

20:09

my god. I'm trying to think of like

20:11

a brutal terrorist attack conducted by the Tamil

20:13

Tigers and like there's an investigation and they

20:15

somehow trace it back to them learning the

20:18

procedures of the UN. All right

20:20

this this feels like a good

20:22

time to take a break. Okay

20:25

we are back. All right so anyway

20:28

I want to just zoom out

20:30

for a second. Again the court

20:32

is supposed to be doing this

20:34

demanding strict scrutiny analysis where they

20:36

make sure that the law is

20:38

justified and that it doesn't infringe

20:40

on more constitutional rights than absolutely

20:42

necessary. But what they

20:44

actually do is say that the government

20:46

can infringe on speech rights as long

20:49

as there's some hypothetical justification made up

20:51

by John Roberts. Which by the

20:53

way if you want to be a real nerd about

20:55

this is actually the rational basis review analysis

20:57

and not the strict scrutiny analysis.

20:59

But leave that one to the

21:02

1L nerd to ponder. So before we move on I do

21:09

want to point out that none of this

21:11

lines up with the precedent on free speech

21:13

cases. The way that speech rights are analyzed

21:15

under the precedent is that if the government

21:18

wants to infringe upon them they generally need

21:20

to show some immediate threat of violence. Right

21:22

that's been the rule since Brandenburg v Ohio

21:24

in 1967. But

21:26

here you see them basically abandoning that

21:29

and allowing the government to prohibit speech

21:31

based on some vague hypothetical threat of

21:33

violence. Which is really just

21:36

completely antithetical to the

21:38

existing precedent. Yeah because it's not

21:40

even like a vague threat of

21:42

violence. Like Roberts is putting forth

21:44

this like real possibility or whatever

21:46

of obstruction of

21:49

procedures at the United Nations.

21:51

Right like Brandenburg v Ohio

21:53

is a case that

21:55

says I mean what you said Peter

21:57

that like you basically have free speech.

21:59

speech up until the point that

22:02

you are inciting a riot, right?

22:04

Like calling on immediate dangerous

22:06

or violent acts to occur,

22:08

you know, imminently, right? Right. Like

22:11

if you went on in the eclipse and were like, we're

22:13

going to the Capitol. Right. Exactly.

22:15

Exactly. That's a good example of

22:18

what incitement might look like. Yeah.

22:21

Absolutely. You can't just say eclipse anymore, by the

22:23

way. You have to be specific. Oh, yeah. You

22:25

mean the one in DC? Or do

22:27

you mean? I'm referring specifically to the

22:29

January 6th riot incited by former president.

22:32

It's an ellipse. Oh,

22:36

yeah. Yeah. Ellipse. I

22:39

got a clips on the brain. Leave this all

22:41

in. Leave this all in. So,

22:44

yeah, the conduct here, the speech

22:46

here, the association here that the

22:48

humanitarian law project is doing or

22:50

engaging in, that's just not anywhere

22:52

near where the line was drawn

22:55

in Brandenburg. Far, far

22:57

afield of like what actually counts

22:59

as speech that's so dangerous

23:01

that the government can actually infringe on

23:03

your freedom of speech. Yeah. By

23:06

the way, there's a point in

23:08

this opinion where John Roberts

23:11

is like, well, this isn't pure speech.

23:15

This is material support for

23:17

terrorism that's composed

23:20

of speech. It's

23:22

an ingredient. It's

23:27

like is it cake for speech? You

23:30

cut into that material support. You're like,

23:32

oh, my God. Speech.

23:35

Speech. It's

23:37

all speech. Oh, shit. All

23:40

right. So,

23:44

we've touched on this a bit, but

23:47

there is a separate argument here. What

23:49

is technically a separate argument that this

23:51

also infringes on their right to association.

23:55

The court has held that part of your

23:57

First Amendment rights include the right to freely

23:59

associate with whomst you please.

24:02

So they're saying, yeah, we want to

24:04

associate with these groups. That is

24:06

our right. Let us do it, right? Roberts

24:08

barely addresses this argument, which honestly, thank God,

24:10

because I don't think I could take any

24:13

more at this point, but he says the

24:15

law doesn't ban, quote, mere

24:17

association. It bans material

24:20

support, which is different. But

24:23

it's not actually different because the court

24:25

pretty freely admits that everything the humanitarian

24:27

law project is doing would be legal

24:30

if it was done in association with

24:32

a different group. So it

24:34

is in fact the mere association

24:36

with the designated terrorist groups that's

24:38

being punished here. And that's assuming

24:40

you know what mere association even

24:42

means, which I'm not sure that

24:44

I do. I know what mere

24:46

disassociation means. It's just a feeling

24:48

I get when I read

24:51

a John Roberts opinion. Me every day. Me

24:53

every day. So look,

24:56

the whole mere association concept is not

24:58

actually supposed to be part of this

25:01

analysis. The court created a test for

25:03

these situations back in the

25:05

early sixties in a case called Scales

25:07

v. United States. The

25:10

test is that the government can't punish

25:12

your association with a group unless it

25:14

can show that you are trying to

25:17

further the illegal goals of that group.

25:20

So if you're just friends with

25:22

some people in a criminal gang,

25:24

that is protected by the Constitution.

25:26

But if you are furthering their

25:28

criminal activities, that can be illegal,

25:30

right? Yeah, this came up like

25:32

after the government said the Communist

25:34

Party was essentially engaged in

25:37

trying to overthrow the government by

25:40

illegal means. It still

25:42

wasn't, you couldn't criminalize

25:44

simply being a member of the Communist

25:46

Party. If you were like,

25:48

well, I think we should try to

25:50

do communism by democratic means or whatever.

25:53

That is protected activity. That

25:55

isn't a protected association you

25:57

can have. Right. on

26:00

point metaphor.

26:03

Right, yeah so here there's

26:05

no evidence that the humanitarian

26:07

law project is furthering illegal

26:09

activities so this should be

26:11

protected under their right to

26:13

free association. Roberts doesn't

26:15

address this analysis at all, all he does

26:17

again is say that it's more

26:20

than mere association that the

26:22

law impacts, marking the second time in

26:24

this case that he has just completely

26:26

ignored the actual test that's supposed to

26:29

be applied in favor of just several

26:31

paragraphs of words is the best way

26:33

to describe it. Yeah so

26:35

there is a dissent Breyer

26:37

writes it and he's joined

26:40

by Ginsburg and Sotomayor. He

26:42

hits a lot of the points we've already hit

26:44

but he starts by saying look this is core

26:47

political speech which historically is

26:49

the most protected part of

26:51

the First Amendment right like

26:55

first and foremost we have to make

26:57

sure people can have political parties in

26:59

the free exchange of ideas so that

27:01

our democracy functions freely and it gives

27:04

you know meaning to our elections and

27:06

our choice in our political economy so

27:09

we should be very

27:11

very very careful about

27:14

restricting it. He says you know all the

27:17

usual markers point to this being protected speech

27:19

it's advocating lawful activity

27:22

not illegal activity there's no imminent

27:25

illegal activity they're doing

27:27

this for political ends so strict

27:29

scrutiny should apply and I

27:32

thought this discussion was pretty good when he

27:34

talks about like the government's arguments about why

27:37

this is narrowly tailored you know

27:39

the government makes two arguments the

27:41

first is about fungibility that 82

27:44

terrorist organizations can be fungible

27:46

and that this is something Congress was concerned

27:48

about and he goes through it and he's

27:50

like yeah but when you read these they're

27:52

kind of talking about money you know like

27:54

right if you give someone 20 bucks

27:57

and say you know use

27:59

this on some something good. Right.

28:01

They don't have to use it on- Don't use this on

28:03

terrorism. Right. They don't have

28:05

to. They could go use it on terrorism. But

28:08

also, if you give them

28:10

gasoline, that maybe money they don't have

28:12

to spend on gasoline for their cars

28:15

could go to terrorism, or they could

28:17

put it in bombs or something. But

28:19

he's like, how is training someone to

28:21

file UN complaints

28:24

fungible? What is the how?

28:26

It doesn't make any sense. He's

28:28

like, actually, if you think about

28:31

this for two seconds, it's nonsense. And

28:33

the legitimacy argument that Peter mentioned, and

28:35

that Roberts sort of swallows

28:38

in full, and I

28:40

thought his best line was about this. He says, it is

28:43

inordinately difficult to distinguish when speech

28:45

activity will and when it will

28:47

not initiate the chain of causation

28:49

the court suggests. A chain that

28:52

leads from peaceful advocacy to quote

28:54

unquote legitimacy to increase support for

28:56

the group to an increased supply

28:58

of material goods that support its

29:01

terrorist activities. Again, this

29:03

is supposed to be, the name for this

29:05

part of the test is narrowly tailored. Yeah.

29:08

And this is like a several

29:11

step chain of causation, each

29:13

one more speculative than the last. It's

29:16

pretty good, but it goes on too long because

29:18

Breyer's kind of long winded. Yeah.

29:21

Breyer does say something, this is like a pretty

29:23

good illustration of both his strengths and weaknesses,

29:25

I think. He has this paragraph where

29:27

he says, what is one to say about these arguments?

29:30

Arguments that would deny First Amendment protection

29:32

to the peaceful teaching of international human

29:34

rights law on the ground that a

29:36

little knowledge about the international legal system

29:38

is too dangerous a thing, that

29:41

an opponent's subsequent willingness to negotiate might be

29:43

faked. So let's not teach him how to

29:45

try. And it's

29:47

like this sort of rhetorical question, what is one to say

29:49

about these arguments? And I was like, all right, this is

29:51

a pretty good wind up. And he

29:54

just kind of leaves it. I'm like, what is

29:56

one to say about it? And he's like, in

29:58

my view, and he moves on. Just like,

30:00

come on, man. You just wound up

30:02

for a haymaker and then

30:04

just walked away. Why hide the ball here?

30:06

Just say it. Yeah. Before we

30:08

go on, we should talk about maybe

30:11

John Paul Stevens. He joins the majority.

30:13

I don't have a ton of thoughts

30:15

about this. He's usually good, including on

30:18

war on terrorist stuff, but he

30:20

does have a flag salute and streak,

30:22

you know, the flag

30:25

burning case notoriously a big sucker

30:27

in that one. And every now and then you

30:29

can just get him on some of this national

30:31

security stuff, because he was like a Navy boy,

30:33

I think I forget exactly. Yes, he was. He's

30:35

like a time of war or whatever the fuck.

30:37

I don't know. But that

30:39

presumably is why he's there. You might ask

30:41

where Kagan was not on the court yet.

30:44

She was the solicitor general arguing

30:46

for the United States government in

30:49

this case. That's right. And,

30:51

uh, alongside her, Michael, you

30:53

discovered this today. Neil Katja

30:56

also arguing this case for

30:58

the US government. And

31:01

that reminds me of something that's not exactly

31:03

about the case itself, but like whenever lawyers

31:05

are criticized for representing some fucking oil company

31:07

or whatever, you get people who

31:09

act like it's the highest calling on earth

31:12

to represent someone who was accused

31:14

of wrongdoing and that like everyone

31:16

deserves representation. And therefore there was

31:18

nothing morally wrong with representing Exxon

31:20

mobile or whatever for $2,000 an hour. Fine.

31:23

But you don't get any outcry from

31:25

the bar when there's legislation

31:28

like this, which effectively says that there are

31:30

clients you cannot provide services to. Even

31:33

if those services are perfectly safe,

31:35

purely nonviolent, purely humanitarian. Right. Good

31:38

point. Neil Katja got flack recently,

31:40

a few years ago, for representing

31:42

Nestle when they were accused of aiding

31:45

and abetting child slavery. Yes.

31:48

And he and his allies all

31:51

like stood up to say,

31:53

Hey, representing people accused of wrongdoing is the

31:55

backbone of the system. You know, this is,

31:57

this is how it works. This is what

31:59

our job. is. And here

32:01

he is in this case arguing for the

32:03

government who wants to make it illegal to

32:05

teach the PKK to bring human rights claims

32:07

before the U.N. You know, these

32:10

people are drenched in amorality. Yeah, that's

32:12

it. That's the principle. Right. So

32:15

to talk about the fallout of this

32:17

case a little bit, shortly after the

32:19

case drops, the FBI used it as

32:22

leverage to raid the homes of anti-war

32:24

activists who had allegedly coordinated with designated

32:26

terrorist groups. We don't

32:28

have much information on what exactly the

32:30

concerns were. But it's safe to say

32:32

that these people were not facilitating actual

32:34

violence or else the FBI wouldn't have

32:37

had to wait until after this case

32:39

came down to do the raids. Also

32:42

worth noting that that was

32:44

14 years ago and they

32:46

never brought charges. So if

32:48

I had to guess, I'd

32:50

say the FBI was fucking around.

32:52

Great. Yeah, as they do.

32:54

Basically, they're top mission, right? You

32:56

know, former President Jimmy Carter spoke

32:59

out against this Supreme Court

33:01

decision when it came down. You know,

33:03

he was the founder of the Carter

33:05

Center, which did lots of work to

33:07

promote peace, further human rights,

33:10

alleviate human suffering around the world.

33:12

And Carter released a

33:14

statement in response to this ruling

33:16

saying, quote, We are disappointed that

33:18

the Supreme Court has upheld a

33:20

law that inhibits the work of

33:22

human rights and conflict resolution groups.

33:24

The material support law, which is

33:26

aimed at putting an end to

33:28

terrorism, actually threatens our work and

33:30

the work of many other peacemaking

33:32

organizations that must interact directly with

33:34

groups that have engaged in violence.

33:36

The vague language of the law

33:38

leaves us wondering if we will be

33:40

prosecuted for our work to promote peace

33:42

and freedom. To give a little color on

33:44

the Carter Center, they were in the

33:48

late aughts trying to meet with

33:50

Hezbollah, a designated terrorist

33:52

organization, to facilitate peace

33:54

talks and like help them

33:56

learn how to monitor elections

33:59

for like free and fair elections

34:01

in Lebanon, right? Just stuff that's

34:03

sort of like unequivocally part of

34:05

the peace process. And this

34:08

case makes that illegal. It's one

34:10

of those situations where if you

34:12

wanted organizations to step

34:14

into these peace processes, they're

34:17

going to need to communicate with

34:19

designated terrorist organizations. And the law

34:22

now says you can't do that. And the Supreme Court

34:24

says that's okay. Yeah, that's exactly right. And

34:26

so yeah, lots of organizations

34:29

implicated here because of the

34:31

overbroadness of the law and

34:33

because of the Supreme Court

34:35

obviously saying this is fine,

34:37

right? But it all

34:39

goes back, I think, to

34:41

allowing material support for terrorism,

34:43

allowing these definitions to be

34:45

as expansive as they are

34:48

in the law, whether that's

34:50

the definition of material support,

34:52

what counts, right? If assistance

34:54

can count, if providing expertise

34:56

and advice can count, legal support,

34:58

what have you, if all of

35:01

that counts as material support, then

35:03

that is overbroad and definitely infringes

35:05

on people's First Amendment rights. And

35:08

then the other over expansive definition

35:10

in the law here is

35:12

what counts as a foreign terrorist

35:14

organization, right? So, you know, if

35:17

the Secretary of State of the

35:19

United States government has the discretion

35:21

to designate as a foreign terrorist

35:23

group, any foreign group that

35:25

engages in any kind of

35:27

unlawful activity against a person

35:29

or property, and then is

35:32

said to also be working against

35:34

the economic interests of the United

35:36

States, that definition and

35:39

that discretion is ripe

35:41

for abuse, right? That

35:43

amount of discretion plainly sets

35:45

up that these decisions are

35:47

made about who counts as

35:50

a terrorist organization and who

35:52

doesn't in ways that are

35:54

extremely politically motivated, right? All

35:56

of us can imagine organizations

35:58

right now, that enact mass

36:01

violence, that do mass

36:03

violence on people, that meet

36:05

this definition that could be

36:07

designated as foreign terrorist organizations

36:09

under these very definitions. I'm

36:11

thinking about the IDF, I'm

36:13

thinking about- Too easy, too easy. Yeah.

36:16

This is what I said during prep when Michael

36:18

was like IDF, it's like, no, that's

36:20

a layup. Right, yes, it's, no. Time

36:22

to get creative. I've got one.

36:25

What about Russia, right? Because

36:27

this lines up with like the

36:29

US's current posturing, right? This

36:31

is a quote from a

36:33

senior military official that

36:36

is posted on the Defense Department

36:38

website. He says, we assess that

36:40

Russia has deliberately struck civilian infrastructure

36:43

and non-military targets with the purpose

36:45

of needlessly harming civilians and attempting

36:47

to instill terror among the Ukrainian

36:50

population. So

36:52

why not Russia? Right, probably has

36:54

to be a non-governmental body, right?

36:56

It does not because the Iranian

36:59

Revolutionary Guard has been on the

37:01

list for five years. There you

37:03

go. And look, they're not a

37:05

foreign group, right? But fucking NYPD means

37:08

this definition, right? Oh yeah. That's

37:10

a good answer. That's what I'm talking about. They're foreign in

37:12

the sense that they all live on Staten Island. Yeah. Yeah.

37:16

There's that, yeah. So

37:19

just taking a step back, I feel like

37:21

in the current, let's

37:23

say state of affairs, state of

37:26

international geopolitical crises right now,

37:28

I have felt over the

37:30

past six months, like very

37:32

tired and sometimes like on 5-4, like

37:36

I'm not focused on like what I wanna be

37:38

focused on or like this is such a narrow

37:40

focus of this podcast in that we're

37:43

only talking about the US Supreme Court

37:45

and these cases like one after the

37:47

other after the other just seem like

37:49

so disconnected and silly and stupid. But

37:52

like you get a case like this,

37:54

right? And this is exactly the demonstration

37:57

of all of. this

38:00

unfairness, all of

38:02

this racism, all of this prioritization

38:05

of what quote unquote violence

38:07

matters to the US government

38:09

and when, right? And you

38:12

see it enacted in our

38:14

very legal institutions. I feel like

38:16

I see in this case a

38:18

real like demonstration and exemplar of

38:21

exactly the things that I've been

38:23

trying to express. It's just like

38:25

one little example, like one

38:28

little like output of this system, the

38:30

perfect put a bow on it example

38:33

of the way the US

38:35

government allows itself, builds a

38:37

system within and outside of

38:39

itself in the international world

38:41

order in which it decides

38:43

what groups it likes and doesn't

38:45

like and in which

38:47

it decides who gets targeted for

38:50

being associated with whom, no matter

38:52

what the actual like real tangible

38:54

effects of that work or association

38:56

are, right? And how the designation

38:59

as a terrorist organization means such

39:01

and such leads to such and

39:03

such consequences, right? That are grave

39:06

and important and material to thousands,

39:08

if not millions of people around

39:10

the world. And here you have

39:12

the Supreme Court being the

39:15

fucking Supreme Court, which is to

39:17

say, idiotic, not analyzing anything on

39:19

any sort of deep level at

39:22

all, green lighting the dumbest shit

39:24

and just perpetuating the whole machine.

39:26

Yeah. Yeah. This case is the

39:28

manifestation of a lot of our like

39:30

national pathologies. Yeah. The foreign

39:33

terrorist organization list. I mean, it's

39:35

the output of a bunch of

39:37

political and ideological and diplomatic

39:40

bullshit, which only loosely maps

39:42

onto how dangerous any of

39:44

these groups actually are, which

39:47

Sort of underscores how flimsy the

39:49

government's fundamental claim here is, right?

39:52

Like They are saying that their

39:54

concern is to combat terrorism, and

39:56

that this is narrowly tailored to

39:58

that end. The Taliban. Isn't

40:00

on? The. List A Foreign terrorist

40:02

Organizations Because the U has basically

40:05

long thought that it would inhibit.

40:07

Diplomatic. Relations Laden at with

40:09

the Afghan government fights. There's nothing

40:12

particularly consistent about this, and not

40:14

only does it undermine the government's

40:16

argument in this case puts you

40:19

could see a world where someone

40:21

brings the obvious claim which is

40:23

that. The. Foreign Terrorist

40:25

Organization list is. Plainly.

40:28

Discriminatory. He hit three. Go luck and

40:30

google it. Go through it and tell

40:32

me it's not just targeting Islamic terror

40:34

groups and rights. All of that is

40:36

just sort of taken for granted by

40:39

the court and I don't think that

40:41

they should be in the business of

40:43

like negotiating who is and who is

40:45

not on the S T O list.

40:47

I just want to point out that

40:49

we are down stream of an enormous

40:52

amount of bullshit. Yeah, you said really

40:54

like Russian State actor and their art.

40:56

State. Actors on the list.

40:58

But more importantly, there are

41:01

situations like in Gaza where

41:03

there is no Se isn't

41:05

right? Are you have like

41:07

pseudo state actors like Hezbollah

41:09

offices and these laws take

41:11

advantage of that ambiguity such

41:13

that if you want to

41:16

coordinate. Aid. In.

41:18

Gaza. you need to coordinate to

41:20

some degree with Hamas or at

41:22

least organizations that someone could argue.

41:25

Are. Tied to Hamas rights. Which

41:27

means that someone's going to hold

41:29

you in violation of this law.

41:31

Which. Would effectively be an allegation that

41:34

you support terrorism for sending any

41:36

aid to Gaza Vatan That is

41:38

the regime that this fall creates.

41:40

Which is exactly how you know. I

41:42

just that sucks, right? right? The United

41:44

Nations Agency long established been there for

41:47

decades, but an allegation that there's any

41:49

connection to Hamas and now the Us

41:51

doesn't funded anymore. Maybe.

41:53

One last thing to say here is

41:56

like I do think we can sort

41:58

of situate this. In. a

42:01

tradition of Supreme Court

42:03

cases that starts

42:06

shortly after the war on terror.

42:08

In like 2004 or

42:11

so, these cases start popping

42:13

up. Rasul, Aigat Hamdan, Iqbal,

42:16

mostly about the treatment of detainees

42:18

at Guantanamo, right? And the court

42:20

is, for the most part, being

42:23

like, yeah, whatever, you know? We're

42:25

not going to get in the

42:27

way of the government on this,

42:29

not at a time like this.

42:32

You see this continue, Clapper,

42:34

the NSA case in like 2012 or so. So

42:38

in 2010, we're at sort of the tail

42:40

end of this. In some ways,

42:42

you might just view this as a weird

42:45

outlier free speech case where the court

42:47

is less deferential toward free speech

42:50

rights than it has ever been.

42:52

But I don't really think it's

42:54

a free speech case. It's a

42:56

war on terror case, right? It

42:59

is a case that fits into

43:01

this tradition of extremely high deference

43:03

to the post 9-11 anti-terror regime

43:06

that the Supreme Court took on

43:08

and never entirely abandoned, although it

43:10

has sort of fallen out of

43:12

favor to some degree. Basically,

43:15

the decade and change after 9-11

43:17

was defined by these cases, just

43:21

challenges to this new government regime and the court

43:23

being like, look, we're not going to get in

43:25

the way of this. We don't have the balls,

43:27

basically, to get in the way of this. That's

43:30

where this case sort of slots in. It's not

43:32

a free speech case, right? It's a war on

43:34

terror case. That's right. All

43:40

right. Next week, should

43:43

Sonia Sotomayor retire? This

43:46

is a hot topic among people who

43:49

don't understand politics and have never learned

43:51

a lesson in their life. Yeah.

43:54

And even though we were calling

43:56

for her retirement a year and a half

43:58

ago, We are

44:01

now gonna wade back into it

44:03

to reiterate that

44:05

Sonia and ideally everyone else

44:07

on the court should retire

44:09

immediately such that they can

44:11

be replaced by a 12-year-old

44:13

communist or whatever works. Follow

44:16

us on social media at FiveFourPod.

44:19

Support us on Patreon, patreon.com/fivefourpod,

44:22

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44:24

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of shit. We'll see you next week. Bye bye,

44:34

everybody. Five to Four is

44:36

presented by Prologue Projects. Rachel

44:39

Ward is our producer. Leon

44:41

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44:43

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44:46

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44:48

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