Administrative/Regulatory
Feb. 17, 2005
Statute Undercuts Right to Mount First Amendment Defense
Forum Column - By Erwin Chemerinsky - A recent 9th U.S. Circuit Court of Appeals decision, United States v. Afshari , 392 F.3d 1091 (2004), is very disturbing because it allows the government to punish people for activities protected by the First Amendment and denies those individuals the chance even to argue that their conduct is constitutionally protected.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
A recent 9th U.S. Circuit Court of Appeals decision, United States v. Afshari, 392 F.3d 1091 (2004), is very disturbing because it allows the government to punish people for activities protected by the First Amendment and denies those individuals the chance even to argue that their conduct is constitutionally protected.
The case arises from the criminal indictment of Roya Rahmani and six others for providing material support to a group that the secretary of state has designated a "foreign terrorist organization." The seven were indicted under 18 U.S.C. Section 2339(b) for giving and raising money to "MEK," or Mujahedin-e Khalq, the main opposition to the fundamentalist regime in Iran.
The defendants claim that MEK is not a terrorist organization and seek to prove this as their defense to the charges against them. If MEK is not a terrorist organization, then contributions to it are protected by the First Amendment. Federal law, however, precludes such the defendants from making a challenge to the designation of MEK.
The federal statute provides that when a group is designated by the secretary of state as a terrorist organization, review of the designation is possible only in a challenge brought by the organization in the U.S. Court of Appeals for the District of Columbia Circuit. Thus, those prosecuted under the statute for aiding a "terrorist organization" cannot bring a challenge to the designation, even though it is the basis for the prosecution and even though the defendants are claiming their donation was protected by the First Amendment's guarantees of freedom of speech and association.
The U.S. District Court for the Central District of California declared this unconstitutional. Although there is no First Amendment right to contribute money to a terrorist organization, Humanitarian Law Project v. Reno, 205 F.3d 1130 (2000), there is a First Amendment right to donate and solicit for an organization that is not a terrorist organization.
Whether an entity meets the requirements for being deemed a terrorist organization is a factual question and should not be deemed true simply because an executive official says so.
Unfortunately, the 9th Circuit reversed the district court in an opinion by Judge Andrew Kleinfeld. The effect is that individuals can be prosecuted for activities that are protected by the First Amendment, but never have the opportunity to litigate their First Amendment claims. That just cannot be right.
This is particularly troubling in the context of the statute and the facts of the case decided by the 9th Circuit. The statute that is the basis for the prosecution is enormously broad in its definition of terrorist activity. The statute requires a threat to national security, which includes the "economic interests of the United States," 8 U.S.C. Section 1189(c)(2), and includes any threat to use a firearm against any person or property, anywhere in the world, except for personal monetary gain.
There is no limit to what groups might be deemed as terrorist organizations under this statute, and contributors to these groups would face as long as 15 years in prison. The secretary of state thus has broad latitude in deciding which groups are to be deemed terrorist organizations.
In the Afshari case, it is understandable why the defendants would want the chance to prove that MEK is not a terrorist organization. MEK is the only major Muslim organization in the Middle East that supports the Middle East peace process. It has aided the United States in terrorism investigations. In 1998 and again in 2002, hundreds of members of the U.S. House of Representatives issued statements calling MEK "a legitimate opposition to the repressive Iranian regime."
Simply, the defendants who are indicted with aiding a terrorist organization want the chance to refute the charge by showing that the entity is not involved with terrorism and, thus, that their contributions and fund-raising activities are protected by the First Amendment.
In fact, there is a Supreme Court precedent on point that clearly indicates it is unconstitutional to preclude the defendants from challenging the basis for the prosecution against them. In McKinney v. Alabama, 424 U.S. 669 (1976), the Supreme Court declared unconstitutional an Alabama statute that allowed an Alabama prosecutor to establish a work to be obscene in one case and then, in subsequent prosecutions against different defendants, to preclude relitigation of the earlier judicial designation of obscenity.
In other words, under the Alabama law, the defendant had no right to challenge the underlying judicial determination of obscenity, or to argue that the material was not obscene.
The Supreme Court declared this unconstitutional and stressed that those prosecuted have a First Amendment right to challenge the basis for their prosecution. The court explained that "the procedures utilized by the State of Alabama, insofar as they precluded [the proprietor] from litigating the obscenity [of the particular works] violated the First and Fourteenth Amendments."
There is an obvious parallel between the law in McKinney and the statute at issue in the recent 9th Circuit case. Both decisions involved statutes that precluded litigants from challenging the predicate for their criminal prosecutions. In McKinney, this was declared unconstitutional, but in Afshari it was upheld.
McKinney makes it clear that the First Amendment rights of a criminal defendant are not adequately protected just because there are other individuals who have an incentive to litigate the matter. The point of McKinney is that a criminal defendant has the right, particularly in a First Amendment case, to challenge the legal basis for his or her prosecution and to disprove any of the elements of the government's case.
Moreover, the 9th Circuit erred in not recognizing the serious due process problems with the designation process. Although designating an organization as terrorist has profound consequences, including criminal penalties for those who violate it, there is no process where individuals can challenge the basis for their prosecutions. This complete absence of process violates the Constitution.
The 9th Circuit's ruling in Afshari leaves nothing to stop the government from establishing any fact in one proceeding and then using that as the basis for a criminal prosecution of a different individual. This flies in the face of due process, which prohibits a person from being bound if he or she was not a party.
Afshari is another example of liberties lost to the war on terrorism. But the last chapter in this story is not yet written. The defendants are seeking en banc review in the 9th Circuit, and the court should grant it and make clear that defendants must be accorded the right to show that their speech is protected by the First Amendment.
Failing that, the Supreme Court should grant review and make clear that those prosecuted for their speech and political activities must be allowed to demonstrate that their speech is constitutionally protected.
Erwin Chemerinsky is Alston & Bird professor of law at Duke Law School
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