First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

Although foreign organizations operating abroad generally do not have First Amendment rights,1 the First Amendment does protect the associations of U.S. persons and residents, even if those associations are with foreign persons.2 Still, the government may proscribe some types of interactions with foreign groups or individuals in the interest of national security.3

In Holder v. Humanitarian Law Project, two U.S. citizens and six domestic organizations challenged the constitutionality of a federal ban on providing material support or resources to designated foreign terrorist organizations.4 They argued that the law criminalized protected speech and association with two foreign groups that the United States had designated as foreign terrorist organizations.5 The Supreme Court agreed that the law restricted the freedom of speech, but it held that the United States’s interests in national security and combating international terrorism justified the prohibition.6

With regard to the plaintiffs’ freedom-of-association claim, the Court concluded that the statute did “not penalize mere association with a foreign terrorist organization,” suggesting that the First Amendment would protect membership in a foreign terrorist organization or independent advocacy of the group’s political goals.7 Instead, the Court reasoned, the statute prohibited only providing specified forms of material support to such organizations.8 In the plaintiffs’ case, that support took the form of providing training or legal expertise on issues of peaceful dispute resolution and humanitarian aid.9 To the extent the prohibition burdened association, the Court held, it was justified on the same national security grounds as the statute’s restrictions on speech.10

Footnotes

1

See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., No. 19-177, slip op. at 6 (U.S. June 29, 2020).

2

See Kleindienst v. Mandel, 408 U.S. 753, 762–70 (1972) (reasoning that the government’s denial of a visa to a foreign scholar implicated the First Amendment rights of American professors who wished to meet and confer with him in person, but holding that the Executive Branch had discretion to deny the visa for a “facially legitimate” reason).

3

See Holder v. Humanitarian L. Project, 561 U.S. 1 (2010).

4

Id. at 10 (citing 18 U.S.C. § 2339B).

5

Id. at 14–15.

6

Id. at 28–39 (applying strict scrutiny).

7

Id. at 39.

8

Id.

9

Id. at 10, 14–15.

10

Id. at 40.