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McDonald Quoted in the Daily Journal

BarryBarry P. McDonald, professor of law, was quoted in the Daily Journal on the recent Supreme Court ruling concerning humanitarian aid to foreign groups designated by the government as terrorist organizations. The article ran in both print editions on June 22.

The ruling, which was in reference to a Los Angeles group’s political advocacy for foreign groups designated by the U.S. government as terrorist organizations, found that the advocacy group could potentially face prosecution for helping represent groups designated as terrorist organizations, even though they are not providing monetary support for the groups.

McDonald described the ruling as "wrongheaded" because any evidence suggesting that a group like the Humanitarian Law Project is actually assisting terrorists is based on "generalized, speculative statements."

McDonald, who has taught at Pepperdine since 2000, is a recognized scholar in the area of First Amendment law. He has published several articles and essays on the law governing freedom of expression and religion in such prominent journals as the Emory Law Journal, Northwestern University Law Review, Notre Dame Law Review, Ohio State Law Journal, and Washington & Lee Law Review. He teaches courses in constitutional law, First Amendment law, and intellectual property law.

Read the full article below.

U.S. Justices: Humanitarian Aid Violates Terrorism Law

By Lawrence Hurley, Daily Journal Staff Writer

WASHINGTON - In the major national security case of the term, the U.S. Supreme Court ruled Monday that a Los Angeles group's political advocacy for foreign groups designated by the government as terrorist organizations could potentially run afoul of a federal law banning providing material support to terrorist groups. 

The justices unanimously ruled that the law, which prohibits any assistance to terrorist-affiliated groups even if the advocacy is not shown to support violent ends, is not unconstitutionally vague under the due process clause of the Fifth Amendment as applied to the types of speech-related activity the group wants to pursue. The court also held on a 6-3 vote that the law does not violate the First Amendment by restricting the group's speech.

It was one of four rulings from the 9th U.S Circuit Court of Appeals that the court reversed Monday. In total, there have been eight 9th Circuit reversals so far this term. The court has affirmed two cases from the 9th Circuit, with four yet to be decided.

The other rulings Monday, on environmental law, arbitration, and international shipping liability, were all decided on relatively narrow grounds.

In the material support case, the Humanitarian Law Project has argued for years that the First Amendment protects its efforts assisting the Kurdistan Worker's Party in Turkey and the Liberation Tigers of Tamil Elam in Sri Lanka. Both groups are on the federal government's list of designated terrorist organizations. The government has not sought to prosecute the law project.

Led by Ralph D. Fertig, a civil rights lawyer and former federal administrative law judge, the law project says its advocacy is limited to lawful conduct such as helping the groups represent themselves before the United Nations.  It does not donate money to the causes it supports nor does it support the use of violence.

The group said Monday it would continue its advocacy work despite the possibility of prosecution.

At issue in the case, which has been ongoing since 1998, is a section of the 1996 Antiterrorism and Effective Death Penalty Act that prohibits anyone from assisting, advising, or training terrorists. The law project filed suit challenging the law as it applies to its activities because it was worried that its officials would face prosecution. Holder v. Humanitarian Law Project, 2010 DJDAR 9347.

The material support statute bans providing "service ... training ... expert advice or assistance" to any group the U.S. government has designated as a foreign terrorist organization. In a December 2007 decision in the case, the 9th Circuit concluded that the statute was unconstitutionally vague under the due process clause of the Fifth Amendment as applied to the law project and also violated the First Amendment.

Monday's ruling essentially saw the majority conclude that security interests trumped First Amendment concerns.

In the majority opinion, Chief Justice John G. Roberts Jr. wrote that the key issue in the case is whether it can be established that the kind of assistance the Humanitarian Law Project offers can be separated from a terrorist group's violent aims. Listing some of the terrorist attacks the Kurdish and Sri Lankan groups have been associated with, Roberts concluded that any support "frees up other resources within the organization that may be put to violent ends."

Aid also "helps lend legitimacy to foreign terrorist groups" that could make it easier for them to recruit new members and raise funds, Roberts added.

In reaching his view, Roberts said he deferred to the views of Congress and the Obama administration, which both concluded that "all contributions to foreign terrorist organizations further their terrorism."

Justice Stephen G. Breyer showed his dissatisfaction with the ruling by reading his dissent from the bench. Justices Ruth Bader Ginsburg and Sonia Sotomayor also dissented.

Breyer wrote that the government had not made a compelling argument that a ban on speech furthers the goal of combating terrorism.

The law project's activities "involve the communication and advocacy of political ideas and lawful means of achieving political aims," Breyer said. Normally, that is the kind of speech the First Amendment was designed to protect most of all, he added. 

The law project's attorney, David Cole of Georgetown Law Center, said the ruling allows the government "to make human rights advocacy a crime."

Attacking Roberts' analysis, he added that "there's been no evidence that teaching human rights to the groups would further any violence or terrorism."

Fertig described the ruling as "a dark day" for human rights activism but pledged to continue his group's work despite the "great fear" of prosecution. "We are imperiling and endangering ourselves," he said.

Barry McDonald, a professor at Pepperdine Law School, said that although the court conducted the appropriate analysis, the outcome is not good public policy.

He described the ruling as "wrongheaded" because any evidence suggesting that a group like the Humanitarian Law Project is actually assisting terrorists is based on "generalized, speculative statements."

The case was a win for Supreme Court nominee Elena Kagan, who argued the case for the government in her role as solicitor general.

John C. Eastman, a Chapman University School of Law professor who filed a brief in support of the government, said Breyer failed to recognize that there is nothing in the law that requires Congress to separate out different types of aid when attempting to undermine terrorist groups. "I don't think it's a line the Constitution requires Congress to draw," he said. "I think it's perfectly sensible."

The three other cases decided Monday: 

In the environmental case, the court ruled 7-1 that a San Francisco federal judge did not follow the correct procedure when deciding to impose a nationwide injunction against growth of a genetically modified crop. 

Judge Charles Breyer, brother of Justice Breyer, who recused himself, imposed the injunction until the federal government completed a full environmental report on a type of alfalfa, a crop used to produce hay, that was developed by the St. Louis, Mo.-based Monsanto Company. The Supreme Court did not rule on whether an injunction would ultimately be a valid outcome. Despite the ruling, farmers must still wait to plant the crop until the government decides to approve it. Monsanto v. Geertson, 2010 DJDAR 9305.

In the arbitration case, the court ruled 5-4 against an employee who wanted to challenge in federal court the enforceability of the arbitration agreement he signed as part of his employment. The court said that the employee could not challenge the enforceability of the agreement as a whole in federal court. But employees can challenge in federal court the specific provision that says the arbitrator will decide whether it's enforceable, the court said. Rent-a-Center v. Jackson, 2010 DJDAR 9338.

In the shipping case, on the issue of liability for damaged goods, the court decided which federal law on the transportation of goods should apply.

The court held on a 6-3 vote that the Carriage of Goods by Sea Act, which usually only applies to incidents at sea but can be extended to the entire journey if it is agreed to in the contract, governed the dispute and not the federal Carmack Amendment, part of the Interstate Commerce Act, which governs rail and road liability within the United States and limits where lawsuits can be filed. Kawasaki v. Regal-Beloit, 2010 DJDAR 9321.

Published with permission from The Daily Journal.