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February 18, 2010

Free Speech Takes Stage at High Court

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It could be a good year for freedom of speech at the U.S. Supreme Court.

The court has already struck down part of one congressional statute in the landmark campaign finance case decided last month and could do the same in two others, legal experts say. For the court to strike down three statutes on First Amendment free speech grounds in one term is not common, but that's what many court-watchers are predicting.

The first of the as-yet-undecided cases will be argued next week. It revolves around the continuing efforts of the Los Angeles-based Humanitarian Law Project to challenge a federal statute that outlaws assistance to groups designated as terrorist organizations. Holder v. Humanitarian Law Project, 08-1498. The group says the statute violates its free speech rights.

The other case the court hasn't ruled on yet, on whether a statute that bans the depiction of animal cruelty is constitutional, hangs in the balance after a one-sided oral argument back in October. A ruling could come as soon as Feb. 23.

In all three cases, the lawyers challenging the constitutionality of congressional statutes have strong arguments, First Amendment experts say.

"I wouldn't be surprised if the First Amendment won in all three cases," said Ahilan Arulanantham, a lawyer for the American Civil Liberties Union of Southern California.

Striking down all three laws on free speech grounds in one term "would be unusual but not unprecedented," according to Daniel Ortiz, a professor at the University of Virginia School of Law.

The last time he could remember it happening was in 2001, he said. In total the court has struck down parts of congressional acts due to free speech concerns 20 times since 1985.

There is one other free speech case the court will rule on this term - on whether the First Amendment rights of attorneys are violated by the law that prevents them from advising clients to take on extra debt before declaring bankruptcy - but based on the December argument the court seems unlikely to reach the constitutional question. Milavetz v. United States, 08-1119.

So far, the trendsetter this term is the campaign finance case.

The Humanitarian Law Project's attorney, Georgetown Law Center professor David Cole, admitted in an interview that the campaign finance ruling gave him some cause for optimism because of the majority's favoring of First Amendment arguments over those advocating restrictions on political speech. His reply brief, due on the day the ruling came down, ended up containing four citations to the case, in which the court lifted restrictions on independent corporate-funded speech during political campaigns. Citizens United v. FEC, 2010 DJDAR 949.

In doing so, the court struck down a key provision of the Bipartisan Campaign Reform Act passed by Congress in 2002, finding that the campaign finance restrictions were an unconstitutional burden on free speech. The ruling means that corporations, both for-profit and non-profit, now have the right to use their general treasury funds to pay for a wide range of election communications, including television spots and pamphlets that criticize or praise a particular candidate. The ruling, Cole said, "shows a heightened sensitivity to prohibitions on political speech, even when advanced for important reasons."

The Humanitarian Law Project's efforts are "nothing more than political speech" aimed at promoting lawful activity, he added.

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 its December 2007 decision on a case that began back in 1998 when the law project filed a lawsuit challenging the 1996 statute, the 9th Circuit concluded that the statute was unconstitutionally vague as applied to the law project. The law project provides support for the non-violent activities of two groups: the Kurdistan Worker's Party in Turkey and the Liberation Tigers of Tamil Elam in Sri Lanka. Both organizations are designated as terrorist groups. The law project maintains that it wanted to teach the groups how they can achieve their goals without recourse to violence, such as by filing human rights complaints with the United Nations.

Founded in 1986, the law project advocates for the use of international law to end conflicts. It is led by Ralph D. Fertig, a civil rights lawyer and former federal administrative law judge.

U.S. Solicitor General Elena Kagan counters in the Obama administration's brief that the statute "only incidentally affects expressive activity" and is not a "content-based restriction on speech."

Kagan said that while certain activities are banned, groups like the Humanitarian Law Project remain free to lobby Congress and otherwise promote human rights causes.

The statute regulates conduct, such as providing direct aid to terrorist groups, not "a particular type of expression," she added. The government maintains that assisting such groups in appearing before the United Nations and providing advice on international political advocacy is enough to violate the statute.

Several groups filed amicus briefs supporting the government in arguing that concerns about terrorism trump the limited restrictions on free speech covered by the statute.

Chapman University School of Law professor John C. Eastman, who filed a brief on behalf of the conservative Center for Constitutional Jurisprudence, expects a majority of the court to focus on the national security issues rather than the First Amendment.

"I think they will uphold the statute," he said.

As for Citizens United, Eastman doesn't think it will have "any impact" on how the case comes out because the court will not consider it as a free speech issue.

What remains to be seen is whether this month's argument in the material support case ends up mirroring the October argument over the statute banning depictions of animal cruelty.

Afterwards, many observers predicted that the court seemed inclined to strike down the law. U.S. v. Stevens, 08-769.

Congress passed the statute in 1999 after becoming aware of so-called "crush videos" that show women stamping on live animals, usually while wearing high-heeled shoes.

In 2005, the defendant challenging the law, Robert J. Stevens, was convicted in Pennsylvania for selling videos depicting dog fighting, some of which were filmed in Japan, where it is legal.

A majority of the justices, including some who were in the minority in Citizens United, expressed concern about the over-breadth of the law, which is written in such a way that it could apply to imagery showing a wide variety of actions involving animals. Humanitarian Law Project attorney Cole makes similar arguments.

The reason all three statutes could be struck down is that Congress hasn't learned its lesson from previous experiences, according to Cole.

"The court states time and time again that its most stringent analysis is for criminal bans on speech," he said.

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2010 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

February 4, 2010

High Court To Hear Torture Case

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When the question of whether former officials of foreign countries can be sued in American courts for acts of torture goes before the U.S. Supreme Court next month, it will be a landmark moment for a nonprofit legal group in San Francisco.

Although the case comes out of Virginia, the legal brains behind the fight are from the Center for Justice and Accountability, based on Market Street. In its 12-year history, the group has never had a case reach the Supreme Court, a milestone that executive director Pamela Merchant has mixed feelings about.

Merchant's clients, five Somalis who accuse a former Somali prime minister of various human rights violations, won when the case was argued before the 4th U.S. Circuit Court of Appeals, traditionally considered the most conservative of the federal appellate courts, so she would have preferred the high court not to get involved at all.

"For an organization of our size it's a little bit daunting," she sighed in a recent telephone interview. "We didn't think the Supreme Court would take the case."

The defendant, Mohamed Ali Samantar, was the defense minister and later prime minister of Somalia during the 1980s when the country was led by dictator Mohamed Siad Barre. After the regime fell in 1991, Samantar ended up in Fairfax, Va.

Through the close-knit Somali community, some 1,500 of whom live in the San Francisco Bay Area, the family of one of the plaintiffs, Bashe Abdi Yousuf, heard Samantar was in the United States and wondered if there was any way of holding him accountable for his alleged actions.

After hearing about the CJA, Yousuf's relatives contacted the group, which agreed to investigate further.

Founded solely to assist torture victims seeking justice, the CJA has just 12 staff members but has enjoyed considerable success. The group has filed claims in U.S. courts against human rights abusers from such countries as Bosnia, Chile, and El Salvador. It has won every case that has gone to trial, Merchant said. The group also represents human rights victims pursuing claims in Spanish courts for alleged violations that took place in Guatemala and El Salvador.

Seeking to broaden the Somalia case, the CJA's staff attorneys talked to others in the U.S.-based Somali community and visited Somalia itself, picking up four more plaintiffs along the way.

They include two United States citizens: Yousuf, who was detained, tortured, and kept in solitary confinement for six years, and Aziz Deria, who fled Somalia after his father and brother disappeared.

Of the other three plaintiffs, all of whom are Somali citizens, one survived a firing squad by hiding under dead bodies, one had two family members executed and one, a woman, was repeatedly raped and held in solitary confinement for three years.

In 2004, the CJA, after seeking outside legal assistance from Cooley Godward Kronish, filed suit in the Eastern District of Virginia. The plaintiffs sought redress under the Torture Victim Protection Act, which creates a cause of action for torture committed in "any foreign nation," and the Alien Tort Statute, which gives United States courts jurisdiction to hear certain international disputes. Samantar sought immunity, setting up the legal question now before the Supreme Court: whether a foreign state's immunity from lawsuits under the Foreign Sovereign Immunities Act extends to individuals acting in their official capacities. Samantar v. Yousuf, 08-1555. The Supreme Court has previously ruled on the scope of the FSIA but not on the question of whether it can apply to former government officials.

The district court found that Samantar had immunity under the FSIA, but the 4th Circuit disagreed. In the January 2009 opinion, a three-judge panel noted that the act is too vague, stating only that "a foreign state" had immunity and making no mention of individuals. Based on a study of congressional intent, the court concluded that the law "does not apply to individual foreign government agents like Samantar."

The 9th U.S. Circuit Court of Appeals is one of five federal appellate courts that have reached the opposite conclusion. The 9th Circuit was, in fact, the first appeals court to rule on the issue back in 1990 and is regularly cited in Samantar's brief. Chuidian v. Phil. National Bank, 912 F.2d 1095, 1103.

Merchant, a former federal prosecutor who joined the CJA in 2005, thought the 4th Circuit opinion was "a clear, solid decision" and was not expecting the Supreme Court to intervene, in part because the question of bringing human rights violators to justice in American courts "is not a very robust area of the law."

That the Supreme Court did decide to take the case raises the question of whether it did so simply to reverse the 4th Circuit, she admitted.

"That's always your concern, but we hope that's not the reason," Merchant said.

At the Supreme Court, experienced advocate Patricia A. Millett of Akin Gump Strauss Hauer & Feld will be handling the argument.

Samantar's attorney, Shay Dvoretzky of Jones Day in Washington, maintains that the Supreme Court would "open the door" to officials from the United States' closest allies facing lawsuits in American courts if it endorsed the 4th Circuit's ruling.

Congress passed the FSIA to give "uniform treatment" to foreign states and officials, but under the approach suggested by the Obama administration, there would be a confusing "two-track regime," one for foreign governments and one for officials, he added.

Dvoretzky, a former clerk to Justice Antonin Scalia who will be arguing for the first time at the court, also warned that it would undermine one of the aims of the act, which is to encourage other countries not to allow lawsuits against the United States and its officials.

The Obama administration has urged the Supreme Court to affirm the 4th Circuit. Solicitor General Elena Kagan noted in the government's amicus brief that whether or not individuals should be sued is not governed by FSIA, but is instead determined by the executive branch, which can file a "statement of interest" outlining its views in such cases.

Kagan's attempt to strike the middle ground hints at the splits the case has created among certain internationally oriented groups, including those representing Jewish interests. The American Jewish Congress and others filed amicus briefs in support of Samantar due to concerns that former Israeli officials could be targets for lawsuits in American courts over alleged human rights abuses committed against Palestinians. In fact, in two recent cases, district judges in the District of Columbia and the Southern District of New York both concluded that former Israeli officials had immunity.

The Anti-Defamation League, originally formed to combat anti-Semitism, has taken a different position. In its brief in support of neither party, it stresses that the "worst offenders" of human rights atrocities, including genocides like the World War II Holocaust, should be held to account for their actions.

David Kaye, executive director of UCLA School of Law's international human rights program, has some sympathy for groups seeking to reconcile apparently competing interests.

"It's a struggle for them to figure out where they stand," he said.

It would be "a major setback" for human rights lawyers if the court granted immunity to officials, he added.

Merchant, meanwhile, remains conflicted as the March 3 argument approaches.

Although concerned about the prospect of losing, she's pleased that the case will, at a minimum, highlight the situation in Somalia, a "broken state" that remains in turmoil and has since become a hotbed for terrorism.

"Of course it's exciting," she said of the argument. "All lawyers think about the day when one of their cases goes to the Supreme Court."