First Amendment Under Assault

This week’s decision in Milavetz Gallop & Milavetz, 2010 U.S. LEXIS 2206 (2010), which I blogged Wednesday, led me to take a look at what is going on in Holder v. Humanitarian Law Project, 552 F.3d 916 (9th Cir. 2009), cert granted Sep. 30, 2009, No. 08-1498 & 09-89. This case involves a constitutional challenge to provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which criminalizes as “material support or resources” for terrorists, “expert advice or assistance”. 18 U.S.C. 2339B(a)(1). In this long running litigation, in one of the two cases, the District Court held that, among other terms, “expert advice or assistance” is unconstitutionally vague despite an amendment and clarification by the Congress in the midst of this litigation when it enacted the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The 9th Circuit affirmed, and the Solicitor General in her brief to the Supreme Court argues that there is no First Amendment violation. I have the full briefs and the transcript of oral argument, and will comment further on the importance of this case next week.