Tuesday, December 04, 2012


By Mike Dorf

Okay, so the title of this post is a little math joke.

Per Euler's equation: ln(-1)/i= pi.  That's meant to refer to my latest pie-eating triumph, not to be confused with last spring's pie-eating triumph.  I haven't yet figured out how to triumph in pi-eating, but I'm working on it.

Meanwhile, I've had a busy couple of days in the media--or at least in the NY Times.  Yesterday, Bruce Bartlett quoted from the recent Columbia Law Review article by Prof. Buchanan and me, in support of the President's power to ignore the debt ceiling in the event that no debt-ceiling-raising legislation is forthcoming from Congress.  That's important because it takes away some of the leverage that Republicans may believe they have in negotiations over the fiscal "cliff", the sequester, and so forth--at least if the Obama Administration accepts that it has the option (and we would say the duty) to ignore the debt ceiling if and when the day of reckoning arrives.  Professor Buchanan and I expect to weigh in with some more analysis and advice on this subject in the coming weeks.

In addition to my notoriety for pie consumption and debt-ceiling-avoidance-advocacy, I also made it into yesterday's Gray Lady in a story about calls by some Congressional Republicans for Twitter to block the feed of Hamas on the ground that Twitter is a forbidden "service" within the meaning of the federal statute forbidding "material aid" to terrorist organizations.  I spoke with reporter Nick Bilton for about 10 minutes, leading to the two quotations of me in which I note the contestation over how an organization becomes a terrorist organization and the fact that much of what counts as "material support" is relatively innocuous.  I have little doubt that I said what I'm quoted as saying, but here I want to add a little bit of context.

I think that Hamas and Hezbollah--whose Twitter feed is also under fire--are properly classified as terrorist organizations.  Each is also a political organization, however, and as with any large organization with multiple aims, it is possible for someone to "support" Hamas or Hezbollah without supporting its terrorist methods.  For that reason, I was troubled by the broad reading the U.S. Supreme Court gave to "support" in the material support statute in Holder v. Humanitarian Law Project.  As a matter of statutory construction influenced by First Amendment norms, I would read the material support statute more narrowly than the Court did, so that whenever the ostensible material support is accomplished through speech, I would require that the speech itself be proscribable (e.g., true threats, incitement, etc.).

I realize that the position I favor lost in HLP.  Still, it strikes me that the "support" given by Twitter to Hamas, Hezbollah and other listed terrorist organizations is even less direct than the support for terrorism that was at issue in HLP--where the respondent sought to educate members of designated Kurdish and Tamil terrorist organizations in how to use international law to advance their aims peacefully and lawfully.  In HLP, at least the aid at issue was being given directly to the listed organizations.  Twitter, by contrast, is not directing any aid Hamas or Hezbollah.  Twitter is no more providing "material support or resources" to terrorists by failing to shut down their feeds than is Verizon or AT&T providing material support or resources when it connects phone calls coming from Gaza or Hezbollah-controlled Lebanon to American customers.

To be sure, it's not entirely clear to me that there would be a First Amendment problem with imposing legal duties on the likes of Twitter, Facebook, Verizon, and AT&T to deny service to listed organizations, so long as the services at issue were not specifically speech services.  So if, in addition to the foregoing, the material support statute were construed to apply to all manner of non-expressive services (such as banking, transportation, etc.), then we would merely have a general law that happened to be applied to expressive acts--and so free speech doctrine pursuant to United States v. O'Brien would subject the law's application in such circumstances to a rather mushy version of intermediate scrutiny.

Except maybe not.  In HLP, the majority applied strict scrutiny to the application of the material support statute to speech, even as it found that strict scrutiny was satisfied.  Given the more tenuous connection to the terrorist organizations in the current context, that test should be more difficult to satisfy here.