Nos. 08-1498 & 09-89

IN THE

Supreme Court of the United States

_______________________________

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.,

Petitioners,v.

HUMANITARIAN LAW PROJECT, et al.,

Respondents.

HUMANITARIAN LAW PROJECT, et al.,

Cross-Petitioners,v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, et al.,

Respondents.

BRIEF FOR ACADEMIC RESEARCHERS AND THE CITIZENMEDIA LAW PROJECT AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS/CROSS-PETITIONERS

BURT NEUBORNE

Counsel of RecordELIZABETH GOITEIN

EMILY BERMAN

DAVID UDELL

THE BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL OF LAW

161 Avenue of the Americas12th FloorNew York, NY 10013(212) 998-6730

SIDNEY S. ROSDEITCHER

1285 Avenue of the AmericasNew York, NY 10019-6064(212) 373-3000

Attorneys for Amici Curiae

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TABLE OF CONTENTS

INTEREST OF AMICI CURIAE 1

INTRODUCTION AND SUMMARY OFARGUMENT 7

ARGUMENT 10

I. THE MATERIAL SUPPORT STATUTE ISUNCONSTITUTIONALLY VAGUE ANDCOULD CHILL PROTECTED SPEECH ... 10

II. THE APPLICATION OF THE STATUTE TOPURE SPEECH THAT HAS NEITHER THEPURPOSE NOR EFFECT OF AIDINGTERRORIST GROUPS' UNLAWFULACTIVITIES VIOLATES THE FIRST ANDFIFTH AMENDMENTS 24

III. THE COURT SHOULD READ THEMATERIAL SUPPORT STATUTE, WHENAPPLIED TO PURE SPEECH, TOREQUIRE BOTH A SPECIFIC INTENT TOFURTHER AN UNLAWFUL END AND ALIKELIHOOD OF HARM 28

CONCLUSION 33

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TABLE OF AUTHORITIES

Cases

Abuelhawa v. United States,129 S. Ct. 2102 (2009) 32

Almendarez-Torres v. United States,523 U.S. 224 (1998) 28

Aptheher v. Secretary of State,378 U.S. 500 (1964) 30

Baggett v. Bullitt,377 U.S. 360 (1964) 11

Brandenburg v. Ohio,395 U.S. 444 (1969) 24

Bridges v. California,314 U.S. 252 (1941) 24

City of Lahewood v. Plain Dealer Pub. Co.,486 U.S. 750 (1988) 11

Crowell v. Benson,285 U.S. 22 (1932) 28

Dennis v. United States,341 U.S. 494 (1951) 24,25

Edward J. DeBartolo v. Fla. Gulf Coast Bldg. &Constr. Trades Council, 485 U.S. 568 (1988) ..... 28

Elfbrandt v. Russell,384 U.S. 11 (1966) 25, 33

Foti v. City of Menlo Parh,146 F.3d 629 (9th Cir. 1998) 11

Grayned v. City of Rochford,408 U.S. 104 (1972) 11

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Herndon v. Lowry,301 U.S. 242 (1937) 23, 24

HUlnanitarian Law Project v. Mulwsey,552 F.3d 916 (9th Cir. 2009) 11, 25, 30

Keyishian v. Board of Regents,385 U.S. 589 (1967) 11

Lorillard v. Pons,434 U.S. 575 (1978) 32

NAACP v. Button,371 U.S. 415 (1963) 11

Public Citizen v. U.S. Dep't of Justice,491 U.S. 440 (1989) 28

Scales v. United States,367 U.S. 203 (1961) passim

Sm,ith v. Goguen,415 U.S. 566 (1974) 11, 23

Texas v. Johnson,491 U.S. 397 (1989) 24

United States v. Del. & Hudson Co.,213 U.S. 366 (1909) 29

United States v. O'Brien,391 U.S. 367 (1968) 26, 27

United States v. Robel,389 U.S. 258 (1967) 30, 33

United States v. Thirty-Seven Photographs,402 U.S. 363 (1971) 28

Yates v. United States,354 U.S. 298 (1957) 29, 31

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Statutes & Legislative Material

8U.S.C. § 1189(a)(I) 1,16

18 U.S.C. § 2339B 1

18 U.S.C. § 2339B(a)(I) 19, 32

18 U.S.C. § 2339B(h) 21

18 U.S.C. § 2339B(i) 20, 33

18 U.S.C. § 2385 29

H.R. Rep. No. 104-518 (1996) (Conf. Rep.), asreprinted in 1996 U.S.C.C.A.N. 944 32

Other Authorities

American Society of News Editors' Statement ofPrinciples 13

Associated Press Managing Editors,Statement of Ethical Principles 13

H. Russell Bernard, Research Methods inAnthropology: Qualitative and QuantitativeApproaches (4th ed. 2006) 12

Andrea Elliott, A Call to Jihad Answered in America,N.Y. Times, July 12, 2009, at AI 17

Clifford Geertz, The Interpretation of Cultures(1973) 12

Michael Genzuk, A Synthesis of EthnographicResearch (Occasional Paper Series, Center forMultilingual, Multicultural Research, RossierSchool of Education, University of SouthernCalifornia, 2003), available at

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http://www.rcf.usc.edu/-genzuk/Ethnographic_Research.html. 12

Hearst Newspapers:Statement of Professional Principles 13

Inside the Jihad: Coverage by Michael Moss andSauad Mehhennet, N.Y. Times, available athttp://topics.nytimes.com/topics/news/international/series/insidethejihad/index.html.. 15

Mousa Abu Marzook, Hmnas Spea!?,s,L.A. Times, Jan. 6, 2009, at AI5 17

Souad Mekhennet, Michael Moss, Eric Schmitt,Elaine Sciolino, & Margot Williams, RagtagInsurgency Gains a Lifeline From Al Qaeda, N.Y.Times, July 1, 2008, at AI 15

Serena Nanda & Richard L. Warms, CulturalAnthropology (9th ed. 2006) 12

'New' al Qaeda Tape May Contain Old Clip of binLaden, CNN.com, July 15, 2007 17

Press Release, U.S. Dep't of Defense, DetaineeConvicted of Terrorism Charge At MilitaryCommission Trial (Nov. 3, 2008), available athttp://www.defenselink.mil/releases/release.aspx?releaseid=12329 18

Reuters, Handbook of Journalism (2008), availableat http://handbook.reuters.com/extensions/docs/pdf/handbookofjournalism.pdf 13

Society of Professional Journalists,Code of Ethics (1996) 13

Adrian Vermeule, Saving Constructions,85 Qeo. L. J. 1945 (1997) 29

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Webster's Third New International Dictionary of theEnglish Language (1993) 21

Ahmed Yousef, Engage With Hamas; We Earned OurSupport, \-\lash. Post, June 20, 2007, at AI9 18

Ahmed Yousef, What Hamas Wants, N.Y. Times,June 20, 2007, at AI9 18

Mahmoud al-Zahar, No Peace Without Hamas, Wash.Post, Apr. 17, 2008, at A23 18

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INTEREST OF AMICI CURIAEl

Amici are academic researchers and a professionalassociation representing the interests of journalistswho work in fields requiring professional contactwith a wide variety of foreign groups, some of whichhave been or may be designated as foreign terroristorganizations by the United States governmentpursuant to 8 U.S.C. § 1189(a)(I). Sustained verbalcommunication with, or concerning, such groups isoften essential to the successful performance of theseresearchers' and journalists' professionalresponsibilities, which in turn enhances publicunderstanding on issues of vital internationalimportance. If this Court endorses the government'sposition concerning the broad reach andconstitutionality of 18 U.S.C. § 2339B, whichcriminalizes the provision of "material support orresources" to proscribed groups, these individualswill be forced to carry out their professionalactivities in a climate of fear and uncertaintybecause, given the statute's vague and amorphousprohibitions, it is impossible to predict whether agiven well-intentioned communication might beconstrued by the government as falling within thestatutory prohibition.

1 The parties have consented to the filing of this brief. Nocounsel for a party authored this brief in whole or in part, andno counselor party made a monetary contribution intended tofund the preparation or submission of this brief. No personother than Amici Curiae or their counsel made a monetarycontribution to its preparation or submission.

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Amici urge the Court to provide effective andconstitutionally adequate protection for speakerswhose professional duties require them tocommunicate with, or about, proscribed groups forpurely lawful purposes. Such protection could beprovided by construing the ban on "material supportor resources" to apply only to communications thatare (1) intended to advance the proscribed groups'unlawful activities; and (2) likely to have such aneffect. If the Court finds that the statute's textresists such a saving construction, it shouldinvalidate the statute's application to the speech atissue in this case as violative of the First and FifthAmendments to the United States Constitution.

Amici include the following:

Lori Allen is Lecturer in Contemporary MiddleEastern Politics and Society in the Department ofMiddle Eastern Studies, University of Cambridge,UK. She is currently an Academy Scholar at theHarvard Academy for International and AreaStudies, where she is writing a book about humanrights and the politics of suffering in Palestiniannationalism entitled Victints of Politics: HumanRights Contradictions and the Paradox of Palestine.In addition to a number of articles published inMiddle East Report, recent publications includearticles in Cultural Anthropology, AmericanEthnologist, and Arab Studies Journal. Her researchhas been supported by grants and fellowships fromBrown University, the United States Institute ofPeace, the Harry Frank Guggenheim Foundation,the Vloodrow V\Tilson National Fellowship

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Foundation, the Social Science Research Council, andthe British Academy, among others.

Danny Hoffman is an Assistant Professor ofAnthropology at the University of Washington inSeattle. Dr. Hoffman's ethnographic researchfocuses on youth and contemporary militiamovements in Sierra Leone and Liberia. His workhas been published in European and Americanjournals devoted to African Studies, Anthropology,Cultural Studies and Political Science. In 2006, Dr.Hoffman served as an expert witness for the UnitedNations war crimes tribunal in Sierra Leonefollowing fieldwork with that country's Civil DefenseForces militia.

Louis Kriesberg IS Professor Emeritus ofSociology, Maxwell Professor Emeritus of SocialConflict Studies, and founding director of theProgram on the Analysis and Resolution of Conflicts(1986-1994), all at Syracuse University. In additionto over 125 book chapters and articles, his publishedbooks include: Conflict Transformation andPeacebuilding (co-ed., 2009); Constructive Conflicts(1998, 2003, 2007); International Conflict Resolution(1992); Tinting the De-Escalation of InternationalConflicts (co-ed., 1991); Intractable Conflicts andTheir Transformation (co-ed., 1989); Social Conflicts(1973, 1982); Social Inequality (1979); l\1others inPoverty (1970); Social Processes in InternationalRelations (ed., 1968); and Research in SocialMovements, Conflicts and Change (ed., Vols. 1-14,1978-1992). He was President of the Society for theStudy of Social Problems (1983-1984), and he

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lectures, consults, and provides trammg regardingconflict resolution, security issues, and peacestudies.

Carolyn Nordstrom is Professor of Anthropologyat the University of Notre Dame. Her principleareas of interest are political violence and peace,transnational extra-legal economies, andglobalization. She has conducted extensive in-sitefieldwork in war zones worldwide, with long-terminterests in Southern Africa and South Asia. Herbooks include: Global Outlaws: Crime, Money, andPower in the Contemporary World (2007); Shadowsof War: Violence, Power and InternationalProfiteering in the 21st Century (2004); A DifferentKind of War Story (1997); and the edited volumes:Fieldworh Under Fire: Contemporary Stories ofViolence and Survival (1996); and The Paths toDomination, Resistance, and Terror (1992). She hasauthored dozens of scholarly articles, won severalteaching awards, and has recently been awardedJohn D. and Catherine T. MacArthur and JohnSimon Guggenheim Fellowships.

Mary Ellen O'Connell holds the Robert andMarion Short Chair in Law and is ResearchProfessor of International Dispute Resolution-KrocInstitute for Peace Studies at the University of NotreDame. Professor O'Connell chairs the Use of ForceCommittee of the International Law Association.She came to Notre Dame from The Ohio StateUniversity, where she held a joint appointment inthe law school and the Mershon Center forInternational Security Studies. She has also taught

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for the United States Department of Defense at theGeorge C. Marshall European Center for SecurityStudies in Garmisch-Partenkirchen, Germany andthe Johns Hopkins University Nitze School forAdvanced International Studies in Bologna, Italy.She is the author of, among other works,International Law and the Use of Force, Cases andMaterials (2d ed. 2009); The Power and Purpose ofInternational Law (2008); and RedefiningSovereignty: The Use of Force After the Cold War(with M. Bothe and N. Ronzitti, 2005).

William Reno is an Associate Professor of PoliticalScience at Northwestern University. He studies theorganization and behavior of insurgent groups inSub-Saharan Africa, and has conducted recent fieldresearch in Sudan and Somalia. He is the author ofthe books Corruption and State Politics in SierraLeone (1995) and Warlord Politics and African States(1999). In addition, he is the author of multiplearticles and book chapters on the subject ofcollapsing states and warfare in post-state societies.

Robert A. Rubinstein is Professor of Anthropologyand International Relations at the Maxwell School ofSyracuse University, where from 1994-2005 hedirected the Program on the Analysis and Resolutionof Conflicts. His research focuses on the dynamics ofpeacekeeping, stability operations, post-conflictreconstruction, and conflict management. He is theauthor of Peaceheeping Under Fire: Culture andIntervention (2008), and co-editor of the collectionsThe Social Dynmnics of Peace and Conflict: Culturein International Security (1988) and Peace and War:

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Cross-Cultural Perspectives (1986). In addition, hehas published 100 journal articles and bookchapters, and has authored or edited eight books.His work has been supported by numerous

foundations, including the Ford Foundation,National Science Foundation, the John and FloraHewlett Foundation, the United States Institute ofPeace, and the v.,renner-Gren Foundation forAnthropological Research.

Robert D. Sloane is Associate Professor of Law atthe Boston University School of Law. His currentresearch focuses on the laws of war and the use andlimits of criminal law concepts in international law.He has published in the fields of public internationallaw, human rights, international criminal law,asylum law, and international arbitration. As apractitioner, he worked for the InternationalCommittee of Lawyers for Tibet (now known as TibetJustice Center), in which capacity he led fact-findingmissions to Nepal, India, and Tibet, wrotesubmissions for the U.N. Commission on HumanRights and human rights treaty bodies, representedasylum seekers, and published several reports andlaw journal articles on human rights.

The Citizen Media Law Project CCMLP")provides legal assistance, education, and resourcesfor individuals and organizations involved in onlineand citizen media. CMLP is jointly affiliated withHarvard University's Berkman Center for Internet& Society, a research center founded to explorecyberspace, share in its study, and help pioneer itsdevelopment; and the Center for Citizen Media, aninitiative to enhance and expand grassroots media.

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CMLP is an unincorporated association hosted atHarvard Law School, a non-profit educationalinstitution. CMLP has previously appeared asamicus curiae in several cases concerning legalissues of importance to the media.

INTRODUCTION AND SUMMARY OFARGUMENT

The world has become increasingly andirreversibly globalized. In nearly every aspect ofpublic life-our environment, our economy, ourcommunications, our security-actions and events infar-flung places may have significant impact on thelives of Americans, and vice versa. A crisis in WallStreet banks spurs precipitous drops in Europeanand Asian financial markets and bankruptcy inIceland. Hatred and incitement in Afghanistanleads to murderous attacks in New York. The razingof South American rain forests and theindustrialization of developing nations combine withthe West's own pollution to increase carbonemissions and lead to ever more devastatinghurricane seasons on the American Gulf Coast.Deterioration of nuclear security in the formerSoviet Union raises concerns within this countryover nuclear proliferation and bombs in the hands ofnon-state actors.

In the face of these varied and dauntingtransnational challenges, it has never been moreimportant for the members of our self-governingsociety to have access to information about theevents, entities, and persons that are shaping those

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challenges. Only a well-informed public can engagein reasoned debates about foreign relations, nationalsecurity policy, climate change legislation, orfinancial regulation. This means learning not onlyabout the views and actions of foreign leaders, butalso about those of their opponents-whether thoseopponents are the youth of Iran pressing for a moreopen society, or extremist religious fanatics pressingfor a more oppressive one.

Academic researchers and journalists play acrucial role in the collection, analysis, anddissemination of this vital information. Only withthe facts and perspectives that their work providescan we understand the forces at play in remote andunfamiliar places. In providing this information,they not only enrich public discourse; they facilitatethe development of more effective national policy,foreign policy, and counterterrorism efforts. Theymust therefore be permitted to travel, to interactresponsibly with people from all sectors of society,and to report freely on what they discover withoutthe specter of criminal prosecution hanging overtheir heads.

The outcome of this case will affect the ability ofresearchers and journalists to do their vital work. Infurtherance of their professional duties, Am,ici andtheir colleagues must communicate with or aboutgroups that are or may become designated foreignterrorist organizations.2 Absent a narrowingconstruction, the statute provides insufficient clarity

2 In the case of organizational Amicus, the comm unication is onthe part of the organization's members and beneficiaries.

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for these individuals to ascertain with confidencewhether a given communication could be construedas falling within the statute's prohibition. If thisCourt upholds the vague and extremely broad termsof the statute, many researchers and journalists willfeel compelled to err on the side of caution,restricting their lawful communications and dilutingthe public discourse. Moreover, significant potentialexists for the government to exploit the statute'svagueness to target disfavored scholarship orreporting. This combined risk of self-censorship andselective application of the statute cannot be squaredwith the dictates of the First and Fifth Amendmentsto the U.S. Constitution.

Even aside from the statute's unconstitutionalvagueness, applying it to pure speech that hasneither the purpose nor likely effect of furthering adesignated terrorist group's unlawful ends wouldrun afoul of the First and Fifth Amendments. ThisCourt has acknowledged that the government maynot curtail pure speech unless there is a close causalnexus between the speech and an extremely seriousharm the government is empowered to prevent. Noplausible nexus has been posited between purespeech, of the kind in which Respondents/Cross­Petitioners and Amici engage, and the ability ofterrorist groups to do harm. Moreover, where anindividual associates with a group that engages inboth lawful and unlawful activities, such associationcannot be punished absent a specific intent on thepart of the individual to further the group's unlawfulaims. A contrary holding would offend the First andFifth Amendments and threaten the very basis ofAmici's academic and journalistic pursuits.

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Accordingly, Antici urge the Court to resolve theconstitutional infirmities of the statute through anarrowing construction that allows speech to bepenalized only where it has the purpose and likelyeffect of furthering the illegal activities of designatedterrorist groups. The lower courts' assessment thatsuch a narrowing construction is unnecessary wasbased on a misreading of Scales u. United States, 367U.S. 203 (1961), which in fact provides strongsupport for such an approach here. If such anarrowing construction is deemed impossible, theCourt should declare the statute unconstitutional asapplied to speech that lacks the purpose and likelyeffect of advancing a proscribed group's unlawfulends.

ARGUMENT

I. THE MATERIAL SUPPORT STATUTE ISUNCONSTITUTIONALLY VAGUE ANDCOULD CHILL PROTECTED SPEECH

Respondents/Cross-Petitioners challenge severalprovisions of the material support statute as beingunconstitutionally vague, while the United Statesargues that these provisions provide tolerably fairnotice of the statute's scope. The courts below splitthe difference, holding that certain terms give fairnotice, and certain terms do not. Parsing eachchallenged prohibited category and sub-category, thecourts distinguished particularly amorphouscategories like "service," "training," and "expertadvice" based on "specialized knowledge" frommarginally less amorphous categories like

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"personnel" and "expert advice" based on "scientific"or "technical" knowledge, and enjoined the UnitedStates from enforcing the more amorphouscategories against Respondents'/Cross-Petitioners'proposed speech. See Humanitarian Law Project v.Muhasey, 552 F.3d 916,927-31 (9th Cir. 2009).

With respect, however, the lower courts did notsufficiently heed their own exhortation regardinghow First Amendment considerations should affectthe void-for-vagueness analysis. When, as here, astatute may touch on protected speech,3 it must domore than "clearly delineate the conduct [it]proscribe[s]," Humanitarian Law Project, 552 F.3d at928; it must do so "with narrow specificity." Foti V.

City of Menlo Parh, 146 F.3d 629, 638-39 (9th Cir.1998) (citing NAACP V. Button, 371 U.S. 415, 432-33(1963». The purpose of this heightened specificityrequirement is twofold: (1) to avoid the risk ofwidespread self-censorship caused by uncertaintyand fear; and (2) to prevent the United States fromexercising virtually unfettered discretion over whichspeech should be prosecuted. See Grayned v. City ofRochford, 408 U.S. 104, 108-09 (1972); see alsoKeyishian v. Board of Regents, 385 U.S. 589, 603-04(1967) (self-censorship); Baggett v. Bullitt, 377 U.S.360, 372 (1964) (same); Smith v. Goguen, 415 U.S.566, 575 (1974) (prosecutorial discretion); cf. City ofLahewood v. Plain Dealer Pub. Co., 486 U.S. 750,

3 The First Amendment vagueness doctrine is triggeredwhenever "a statute's literal scope ... is capable of reachingexpression sheltered by the First Amendment." Sm.ith u.Goguen, 415 U.S. 566, 573 (1974).

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757 (1988) (parallel dangers m standardlesslicensing scheme).

These risks clearly are present here. As athreshold matter, scholars in many disciplines mustbe able to communicate with the subjects of theirstudy in order to perform responsible research.Anthropology is a primary example. The disciplineof anthropology is aimed at illuminating othercultures, ranging from small, geographically distinctunits (such as a particular tribe) to broader culturalphenomena (such as war itself). See generallySerena Nanda & Richard L. V\Tarms, CulturalAnthropology (9th ed. 2006). The primary vehicle forachieving this aim is ethnographic research, orfieldwork involving the collection of primary data.And while there are many tools that may be involvedin such research, one of the most important tools isdirect personal observation of-and extendedinteractive interviews with-members of the culturebeing studied. See H. Russell Bernard, ResearchMethods in Anthropology: Qualitative andQuantitative Approaches 342, 347, 368-69 (4th ed.2006); Michael Genzuk, A Synthesis of EthnographicResearch (Occasional Paper Series, Center forMultilingual, Multicultural Research, RossieI' Schoolof Education, University of Southern California,2003), available at http://www-rcf.usc.edu/~genzuk/Ethnographic_Research.html.It is, indeed,a longstanding and fundamental tenet ofanthropology that direct, sustained contact is vital togaining a full and accurate understanding of theculture in question. See Clifford Geertz, TheInterpretation of Cultures 22 (1973)

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("Anthropologists don't study villages ... they studyin villages.") (emphasis in original).

Journalists similarly must be able tocommunicate with the persons and groups aboutwhom they report. The competent, ethical practiceof journalism requires reporters to make every effortto ensure that "news content is accurate, free frombias and in context, and that all sides are presentedfairly." American Society of News Editors'Statement of Principles, Art. IV. This meansmaking efforts to "[t]alk to sources on all sides of adeal, dispute, negotiation or conflict." Reuters,Handbook of Journalism 3 (2008), available athttp://handbook.reuters.com/extensions/docs/pdf/handbookofjournalism.pdf. When a story paints anindividual in a negative light or deals withcontroversial issues, this principle is especiallyimportant. See, e.g., Hearst Newspapers: Statementof Professional Principles ("We must make aparticular effort to seek comment from thoseportrayed in a critical manner."); Society ofProfessional Journalists, Code of Ethics (1996)("Journalists should ... [d]iligently seek out subjectsof news stories to give them the opportunity torespond to allegations of wrongdoing."); AssociatedPress Managing Editors, Statement of EthicalPrinciples ("The newspaper should strive forimpartial treatment of issues and dispassionatehandling of controversial subjects.").

Accordingly, III order to study or reportcompetently on terrorism or terrorist groups,academic researchers and journalists must be able to

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communicate with those groups or their members.There can be no serious question regarding theimportance of this work. Among other things, a richunderstanding of the phenomenon of modernterrorism is vital to our own government's ability todevelop effective responses to the terrorist threat. Ifthe Court were to uphold the statutory terms atissue in this case, however, Amici would be left toguess whether activities like the following couldconceivably fall within the statute's ambit:

• Amici include an anthropologist who studiespeacekeeping missions and the effect of bothinternal and external culture on the missions'success. In order to determine how local cultureaffects any given peacekeeping mission, thisresearcher engages in in-depth interviews and"participant observation" of the local population,ranging from those who support the mission tothose who may engage in armed opposition aspart of an organized insurgency. Incommunicating his findings through scholarlywritings, he routinely presents the views of thepeople and groups whom he has studied. Thisindividual's work has been of direct benefit to theU.S. government and he has been invited to theU.S. Army War College as a "distinguishedvisitor." Yet if the armed insurgents whom hestudies were to be classified as foreign terroristorganizations by the U.S. government, could hisextended interactions with them and hispresentation of their views be construed by thegovernment as the provision of a "service" or"personnel"?

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• One major U.S. daily newspaper published aseries of articles about jihadists, aiming to"examine how they are working to expand thereach of radical Islam." Inside the Jihad:Coverage by Michael Moss and Sauad Mehhennet,N.Y. Times, available at http://topics.nytimes.com/topics/news/international/series/insidethejihad/index.html. An article inthe series focused on a foundering militant group,currently designated by the U.S. government as aforeign terrorist organization, that reached out toAl Qaeda for support and resources. See SouadMekhennet, Michael Moss, Eric Schmitt, ElaineSciolino, & Margot Williams, Ragtag InsurgencyGains a Lifeline From Al Qaeda, N.Y. Times, July1, 2008, at AI. This reporting requiredsignificant contact with the militants, and itincluded stories from inside the organizationregarding members' motivations, activities, andpolitical views. The online version of the storyincluded a link to audio clips from an interviewwith the militant group's leader, AbdelmalekDroukdal. Could the government deem the airingof this interview, and the presentation of thegroup's views, to be a "service" provided to theorganization?

• Amici include an anthropologist who doesintensive field research in conflict zones. He hasstudied the Civil Defense Forces (CDF) and theRevolutionary United Front (RUF) in SierraLeone and Liberians United for Reconciliationand Democracy (LURD) in Liberia, among othergroups. As an integral part of his research, hehas spent extended periods of time with the

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combatants he has studied, including living withthem on occasion in order to maximize hisobservational opportunities. His work hasresulted in important insights on why somegroups target civilians for attack, and he servedas an expert witness for the United Nations atthe Special Court in Sierra Leone. Yet the groupsof greatest interest to his work include those thatarguably meet the government's definition offoreign terrorist organizations and are likelycandidates for designation under 8 U.S.C. §1189(a)(1). Could he run afoul of the "personnel"or "service" provisions of the material supportstatute by virtue of his extended and closeinteractions with them?

• Media associations regularly organizeinternational newsgathering trips to countries ofinterest. These trips permit the associations'members to extend the reach of theirinternational coverage beyond what otherwisewould be possible, thus enriching their reportingto the public. The association arranges a series ofinterview sessions in the destination country,including interviews with the nation's leadership.Trips to Cuba and Venezuela have includedmeetings or press conferences with Fidel Castroand Hugo Chavez, respectively. Should such anexcursion be arranged in Lebanon, and shouldthe participants interview, write about, and quotemembers of Hezbollah, would they be exposingthemselves to criminal liability for knowinglyproviding a "service" to Hezbollah?

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• Amici include an anthropologist who developedone of the first contemporary ethnographies ofwar. She spent years on the front lines of variousconflicts, conducting extensive interviews withmembers of groups such as the LTTE (the "TamilTigers"), the Irish Republican Army (IRA), andthe Palestine Liberation Organization (PLO).Her research has enabled her to predictaccurately the course of a wide range ofcontemporary armed conflicts-an ability ofobvious and significant public value. But thisability is the result of close and continuousinteraction with groups that include designatedforeign terrorist organizations, and she is deeplyconcerned about the possible effect of thematerial support statute on her future work.

• Media outlets regularly post or broadcastdocuments and videos produced and distributedby designated foreign terrorist organizations.See, e.g., Andrea Elliott, A Call to JihadAnswered in America, N.Y. Times, July 12, 2009,at Al (link to propaganda film by a Somali terrorsect on online version of article), available athttp://www.nytimes.com/2009/07/12/us/12somalis.html; (New' al Qaeda Tape May Contain Old Clipof bin Laden, CNN.com, July 15, 2007 (storyabout Osama bin Laden videotape includes linkto the video), available at http://www.cnn.com/2007/WORLD/meast/07/14/bin.laden.video/index.html#cnnSTCVideo. U.S. newspapers alsooccasionally publish opmlOn pieces ofinformational value to the public written byrepresentatives of designated foreign terroristorganizations. See, e.g., Mousa Abu Marzook,

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Hamas Speahs, L.A. Times, Jan. 6, 2009, at A15(Deputy of the Political Bureau of Ramas);Mahmoud al-Zahar, No Peace Without Hamas,Wash. Post, Apr. 17, 2008, at A23 (a founder ofRamas); Ahmed Yousef, What Hamas Wants,N.Y. Times, June 20, 2007, at A19 (politicaladviser to Prime Minister Ismail Raniya); AhmedYousef, Engage With Hmnas; We Earned OurSupport, ·Wash. Post, June 20, 2007, at A19(same). In light of the fact that the governmenthas successfully prosecuted at least one Al Qaedamember under the material support statute forcreating and disseminating a propagandistvideotape, see Press Release, U.S. Dep't ofDefense, Detainee Convicted of Terrorism ChargeAt Military Commission Trial (Nov. 3, 2008),available at http://www.defenselink.mil/releases/release.aspx?releaseid=12329, can journalists beconfident that they may broadcast clips of suchvideos or otherwise provide a forum in whichterrorist groups air their views without riskingcriminal prosecution?

• Amici include an anthropologist who studies themanner in which ordinary Palestinians respondto the pervasive, ongoing violence that surroundsthem. As part of her research, she has walkedalongside marchers in so-called "martyrfunerals," public events honoring those who havedied in the Israeli-Palestinian conflict, includingsuicide bombers. By walking alongside themarchers, rather than simply observing fromafar, she is able to engage in frank conversationwith the participants and to overhear theirconversations with one another. As a result, she

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has learned that there is a deep wave of cynicismand apathy about the conflict among the generalpopulation. This information is of clear value inshaping our country's own approach to theconflict. Yet to the extent some of these funeralsmay be organized by Ramas or other designatedterrorist groups, could the government decidethat she is providing "personnel" by virtue ofwalking alongside the marchers?

The limitations that Congress has added to thestatute do little to allay the concerns of theindividuals or groups engaged in these or similaractivities because those limitations provideinadequate assistance in determining the statute'sscope. The knowledge requirement added byCongress4 sheds light on the statute's substantiveterms, such as "service," only if it is interpreted torequire a specific intent to further the terroristorganization's illegal aims (see Part III, infra). Asfor Congress's instruction that the statute should notbe construed to apply to speech protected by the

4 This provision states:

To violate this paragraph, a person must have knowledgethat the organization is a designated terroristorganization (as defined in subsection (g)(6», that theorganization has engaged or engages in terrorist activity(as defined in section 212(a)(3)(B) of the Immigration andNationality Act), or that the organization has engaged orengages in terrorism (as defined in section 140(d) (2) ofthe Foreign Relations Authorization Act, Fiscal Years1988 and 1989).

18 U.S.C. § 2339B(a)(I).

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First Amendment,5 this provision is scant solace to aprospective speaker who is uncertain about whetherhis or her speech falls outside the not-always­obvious parameters of First Amendment protection.These parameters are indeed contested by theparties in this case, each of which is represented bylearned counsel. Academic researchers andjournalists who communicate with or about foreignterrorist organizations cannot be expected to enjoyany greater certainty.

Nor do Congress's definitions of the statutoryterms at issue provide much assistance. When itcomes to support in the form of "personnel," forexample, Congress has specified that this provisionapplies to those who work "under th[e] terroristorganization's direction or control or [who] organize,manage, supervise, or otherwise direct the operationof that organization," and it has exempted speakersoperating "entirely independently" from theorganization.6 But the specification IS itself

5 The proviso states: "Nothing in this section shall be construedor applied so as to abridge the exercise of rights guaranteedunder the First Amendment to the Constitution of the UnitedStates."' 18 U.S.C. § 2339B(i).

G The provision states in full:

No person may be prosecuted under this section inconnection with the term "personnel" unless that personhas knowingly provided, attempted to provide, orconspired to provide a foreign terrorist organization with1 or more individuals (who may be or include himself) towork under that terrorist organization's direction orcontrol or to organize, manage, supervise, or otherwisedirect the operation of that organization. Individualswho act entirely independently of the foreign terrorist

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hopelessly vague, especially when applied to scholarsand reporters engaged in research and reportingthat entail substantial interaction with members of aproscribed group. Does a newspaper act "entirelyindependently" when it performs the work of editingan op-ed submitted by a terrorist leader, if the leaderretains ultimate control over the content of thepiece? Does a researcher act "entirelyindependently" when she attends an event organizedby a terrorist group in order to observe andinterview its members, given that the event itselftakes place under the group's "direction or control"?Moreover, since the "entirely independently"limitation applies only to material support in theform of "personnel," any researcher or journalist whoacts "entirely independently" when providinganything that could be deemed a "service" or "expertadvice or assistance"-including any "specializedknowledge"-still risks criminal prosecution.

The government's construction of the term"service" is even less illuminating. In the briefingfor this case, the government has pointed to thedefinitions of "service" contained in Webster'sDictionary: "[A]n act done for the benefit or at thecommand of another" or "useful labor that does notproduce a tangible commodity." Pet. at 17 (citingWebster's Third New International Dictionary of theEnglish Language 2075 (1993». These definitionsraise more questions than answers. If the leader of a

organization to advance its goals or objectives shall notbe considered to be working under the foreign terroristorganization's direction and control.

18 U.S.C. § 2339B(h).

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terrorist group dictates the time and place at whicha journalist can meet him for an interview, is the actof showing up at the appointed time and place "anact done ... at the command of another"? If acultural anthropologist writes an article about alesser-known terrorist group and thus raises thegroup's profile, could the act of writing the articleconstitute "useful labor"?

As the above examples show, it is impossible forprospective speakers to know whether a broad rangeof innocent communications with, or concerning, adesignated group will be deemed the provision ofmaterial support. If the vague terms of the statuteare allowed to stand, some researchers andjournalists presumably will continue their work outof a sense of public duty and professional integrity.\Vithout question, however, there will be others whoconclude that the risks are simply too great. Such aresult will not only harm the speakers themselves; itwill result in an impoverished public understandingand discourse regarding some of the most importantissues of our day-including the issue of terrorism.

Equally troubling, the vagueness inherent in thestatute gives the United States virtually unfettereddiscretion to target disfavored speech as theprOVISIOn of forbidden material support to aproscribed group. For example, the governmentcould decide to construe the term "service" to includea news outlet's reporting of a terrorist leader'sviews-but only where the government perceivesthat the news outlet in question has given thegovernment's policies unfavorable coverage in the

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past. Similarly, a scholar whose studies suggest thatdialogue with terrorist groups is an effective methodof deterring violence might be more likely, whencompared to a scholar whose studies reach theopposite conclusion, to find her communicationstargeted by a government intent on combatingterrorist groups through a controversial armedconflict.

This Court has not hesitated to invalidatestatutes under analogous circumstances. InHerndon v. Lowry, 301 U.S. 242 (1937), the Courtvacated the conviction of a Communist Partyorganizer under a Georgia statute criminalizing theact of inciting violent overthrow of the government.The Court ruled that the statute wasunconstitutionally vague because it failed todistinguish sufficiently between advocacy andincitement, thus vesting prosecutors and the jurywith undue discretion to criminalize a broad swathof speech. See Herndon, 301 U.S. at 261-64.Similarly, in Smith v. Goguen, 415 U.S. 566 (1974),the Court struck down as unconstitutionally vague aMassachusetts statute that forbade any person to"treatD contemptuously" the American flag-in largepart because "[s]tatutory language of such astandardless sweep allows policemen, prosecutors,and juries to pursue their personal predilections."Smith, 415 U.S. at 575.

None of the challenged categories in the materialsupport statute can survive analysis under Herndonand Smith, or the dozens of Supreme Court casesapplying their teaching. In the end, the threat of

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self-censorship and unfettered prosecutorialdiscretion to single out disfavored speech forcriminal prosecution combine to generate a toxicspeech climate that violates the First Amendmentvagueness doctrine.

II. THE APPLICATION OF THE STATUTE TOPURE SPEECH THAT HAS NEITHER THEPURPOSE NOR EFFECT OF AIDINGTERRORIST GROUPS' UNLAWFULACTIVITIES VIOLATES THE FIRST ANDFIFTH AMENDMENTS

The key to modern free speech protection is theshift from a willingness in the first quarter of the20th century to suppress controversial speech merelybecause it had a perceived tendency to lead toharmful behavior, to the current requirement thatthe government demonstrate a direct causal nexusbetween the target speech and an extremely seriousharm that the government is empowered to prevent.See, e.g., Herndon, 301 U.S. at 255-59; Bridges v.California, 314 U.S. 252, 261-63 (1941); Dennis v.United States, 341 U.S. 494, 526-27 (1951)(Frankfurter, J., concurring); Brandenburg v. Ohio,395 U.S. 444, 447-49 (1969); Texas v. Johnson, 491U.S. 397, 409 (1989). While communication with thepredictable effect of advancing the unlawful ends ofa violent terrorist organization may be suppressedbecause it poses a genuine threat of imminent andserious harm, communication seeking to learn andconvey information about such a group, divert thegroup from violence, or mitigate human suffering inareas under the group's control cannot be suppressed

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because there is no causal nexus between suchinnocent speech and a sufficiently serious harm.

This Court has recognized an additionalrequirement under the First and Fifth Amendmentswhen the government seeks to prosecute someone forspeech or association with a group that engages inunlawful conduct: the person must have a specificintent to further the group's unlawful ends. SeeDennis, 341 U.S. at 499-50; Scales, 367 U.S. at 221­24; Elfbrandt v. Russell, 384 U.S. 11, 15-16 (1966).This requirement of specific intent is particularlyimportant where individuals seek to associate insome manner with groups (like those at issue in thiscase 7) that engage in both lawful and unlawfulactivities:

[Q]uasi-political parties or other groups thatmay embrace both legal and illegal aims differfrom a technical conspiracy, which is definedby its criminal purpose, so that all knowingassociation with the conspiracy is a propersubject for criminal proscription as far as FirstAmendment liberties are concerned. If therewere a similar blanket prohibition ofassociation with a group having both legal andillegal aims, there would indeed be a realdanger that legitimate political expression orassociation would be impaired, but themembership clause, as here construed ... doesnot make criminal all association with anorganization which has been shown to engage

The PKK and LTTE engage in both lawful and unlawfulpursuits. See Humanitarian Law Project, 552 F.3d at 921.

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in illegal advocacy. There must be clear proofthat a defendant 'specifically intend[s] toaccomplish [the aims of the organization] byresort to violence.' Thus the member forwhom the organization is a vehicle for theadvancement of legitimate aims and policiesdoes not fall within the ban of the statute: helacks the requisite specific intent ....

Scales, 367 U.S. at 229-30 (emphasis in the original)(citation omitted).

The United States seeks to avoid full FirstAmendment review by mischaracterizingRespondents'/Cross-Petitioners' speech as a form of"conduct" subject to the less stringent standard ofreview used in United States v. O'Brien, 391 U.S. 367(1968), to measure the constitutionality of draft cardburning. The O'Brien test is triggered byprohibitions on non-speech behavior thatincidentally affect expressive elements of theconduct. See O'Brien, 391 U.S. at 376-77. But theproposed communications of Respondents/Cross­Petitioners are pure speech. The government cannottransform them into conduct simply by labelingthem "support" or "resources" and asserting thatthey will result in some concrete harm (here, aidingterrorist groups). The speech/conduct distinctiondoes not turn on the effects of the communication.

Any other interpretation would threaten, not onlythe provision of human rights counseling thatRespondents/Cross-Petitioners propose to undertake,but the academic freedom and freedom of the pressupon which researchers and journalists in all areas

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of inquiry rely. If the provision of human rightscounseling can be characterized as "conduct" basedon its practical application, so, too, could academicresearch that motivates an economic competitor ofthe U.S. to change its policies, or investigativereporting that leads to a decline in the stock market.

In any event, the material support statute, asapplied to the pure speech proposed byRespondents/Cross-Petitioners (and the speech inwhich Amici routinely engage), cannot satisfy eventhe diluted review standard in O'Brien because itdoes not further an "important or substantialgovernmental interest," and is far "greater than isessential to the furtherance of' any such interest.O'Brien, 391 U.S. at 377.

The government's only plausible interest inlimiting speech with, or about, proscribed groups isto avoid advancing their lawless activities. Thegovernment contends that providing resources of anykind to terrorist groups-whatever the purpose­frees up other resources for them to pursue theirillegal aims. But even if one were to accept thatproviding tangible property or money to proscribedgroups for innocent purposes, like hospitals andorphanages, could free up property or money forillegal uses, that rationale does not carryover topure speech. Unlike money or weapons, informationis not fungible. Learning about non-violentalternatives does not enhance the ability to makebombs; nor does communication with a researcher orjournalist who seeks to expand the store of publicinformation about the group. The United States

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accordingly has not identified any plausiblegovernmental interest, much less a compelling one,that would justify censoring innocent speechconcerning, or with, a proscribed group.

III. THE COURT SHOULD READ THEMATERIAL SUPPORT STATUTE, WHENAPPLIED TO PURE SPEECH, TOREQUIRE BOTH A SPECIFIC INTENT TOFURTHER AN UNLAWFUL END AND ALIKELIHOOD OF HARM

If possible, a statute should be construed to avoidraising substantial constitutional issues. SeeCrowell v. Benson, 285 U.S. 22, 62 (1932). Thiscanon of constitutional avoidance is often deployed tonarrow statutes in tension with the FirstAmendment. See, e.g., Edward J. DeBartolo v. Fla.Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.568, 575 (1988). For example, in order to avoidserious First Amendment concerns, this Courtconstrued a federal statute allowing customs agentsto seize obscene materials to require "intervals of nomore than 14 days from seizure of the goods to theinstitution of judicial proceedings for their forfeitureand no longer than 60 days from the filing of theaction to final decision in the district court," despitethe fact that the statute itself contains no timelimitations. United States v. Thirty-SevenPhotographs, 402 U.S. 363, 373-74 (1971). Judicialapplication of the avoidance canon respectsCongress's equal commitment to constitutionalvalues, see Allnendarez-Torres v. United States, 523U.S. 224, 238 (1998); Public Citizen v. U.S. Dep't of

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Justice, 491 U.S. 440, 466 (1989), while leavingCongress the option to enact a broader statutesubject to judicial reVIew for constitutionalsoundness.

Application of the avoidance canon is particularlyappropriate in this case. First, no doubt exists thatthe prospect of criminalizing Respondents'/Cross­Petitioners' proposed speech triggers the canon.Prior to the Court's decision in United States v. Del.& Hudson Co., 213 U.S. 366, 407-08 (1909), theavoidance canon was applied only after a findingthat a statute was, in fact, unconstitutional. In themodern era, however, the Court deploys the canon ifthe statute's application to proposed speech wouldraise a serious constitutional issue. See AdrianVermeule, Saving Constructions, 85 Geo. L. J. 1945,1949, 1958-59 (1997). As discussed in Parts I and II,supra, significant constitutional concerns would beraised if the statute's vague terms could beinterpreted to apply to pure speech that is notintended or likely to further the unlawful aims ofdesignated organizations.

Second, the statute is amenable to a narrowingconstruction, as demonstrated by this Court's rulingsin Scales v. United States, 367 U.S. 203 (1961), andYates v. United States, 354 U.S. 298 (1957). Thestatutory provision at issue in Scales made it a crimeto become a member of any group that advocatedviolent overthrow of the U.S. government, "knowingthe purposes thereof'-i.e., knowing that the groupespoused violent overthrow. 18 U.S.C. § 2385. TheCourt construed the statute to apply only to active

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members possessing a specific intent to further theorganization's illegal aims. See Scales, 367 U.S. at221-24. Although the Court did not specify theprecise textual hook on which it hung thisinterpretation, later cases confirmed that the key tothe Court's narrowing construction was theknowledge requirement. See Aptheher v. Secretary ofState, 378 U.S. 500, 511 n.9 (1964); United States v.Robel, 389 U.S. 258, 262 (1967). Thus, even thoughthe plain language of that provision requiredknowledge only of the organization's illegal aims, theCourt construed the provision to require a specificintent to further those aims.S

The Ninth Circuit panel below deemed Scalesdistinguishable on the ground that "the statute inScales . .. was silent with respect to requisite mensrea," while the material support statute "exposes oneto criminal liability only where the governmentproves that the donor defendant acted with culpableintent-knowledge." Humanitarian Law Project,552 F.3d at 926. In fact, the statute at issue inScales not only contained a knowledge requirement;it contained a knowledge requirement very similar tothe one in the material support statute, i.e.,knowledge of the organization's illegal aims oractivities. The Court in Scales found that this

S The Court in Scales was not called upon to address whethermembership could be criminalized absent any likelihood thatsuch membership would lead to a sufficiently serious harm.See Scales, 367 U.S. at 230 n.21 ("As both sides appear to agreethat the 'clear and present danger' doctrine ... reaches themembership clause of the Smith Act, and since the petition forcertiorari tenders no issue as to the method of applying it here,we do not consider either question.").

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knowledge requirement could-and must-be readto include a requirement of specific intent.

In addition to the specific intent requirement, astatute restricting protected speech must beconstrued, if possible, to apply only to speech that islikely to cause to a particularly serious harm, giventhat the statute otherwise would violate the FirstAmendment. See Part II, supra. In Yates, the Courtconsidered a statutory provision making it a crime"to knowingly or willfully advocate . . . or teach"violent overthrow of the U.S. government. Yates,354 U.S. at 301 n.1. The Court acknowledged thatadvocating merely the idea of forcible overthrowwould satisfy the "ordinary dictionary definitions" of"advocate" and "teach." Id. at 319. It nonethelessheld that such advocacy, even "if engaged in with theintent to accomplish overthrow," was "too remotefrom concrete action" to justify criminal sanction, id.at 321, and it refused to "assume that Congresschose to disregard a constitutional danger zone soclearly marked." Id. at 319. The Court thereforeconstrued the statute to apply only to "advocacy ofaction, not ideas," id. at 320, noting that suchadvocacy is not constitutionally protected when theaudience is "of sufficient size and cohesiveness, issufficiently oriented toward action, and othercircumstances are such as reasonably to justifyapprehension that action will occur." Id. at 321.

The material support statute similarly should beconstrued to apply to pure speech only where thatspeech is likely to produce the concrete harm thatthe statute is intended to prevent. The term

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"material support" itself is readily interpreted toincorporate such a limitation. In light of the clearpurpose of the statute-i.e., to "prevent and punishacts of terrorism," H.R. Rep. No. 104-518, at 1 (1996)(Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 944,944-"material support" may fairly -be construed assupport that is likely to enhance the designatedorganization's ability to engage in terrorist acts. 9

These constructions are plausible readings, notonly of the statutory language, but of congressionalintent. In 2004, Congress added a provision to thematerial support statute limiting its scope to personswho act with "knowledge that the organization is adesignated terrorist organization . . . that theorganization has engaged or engages in terroristactivity ... or that the organization has engaged orengages in terrorism." 18 U.S.C. § 2339B(a)(I).Although this provision does not expressly requirespecific intent to further the organizations' unlawfulactivities, Congress was presumptively aware thatthe Court in Scales construed a substantiallyequivalent provision to contain such a requirement.See Abuelhawa v. United States, 129 S. Ct. 2102,2106 (2009) ("[W]e presume legislatures act withcase law in mind."); Lorillard v. Pons, 434 U.S. 575,580 (1978) ("Congress is presumed to be aware of anadministrative or judicial interpretation of astatute."). Moreover, Congress at the same time

9 Amici do not argue that the Court must adopt such anarrowing interpretation in all applications of the statute.Rather, under the canon of constitutional avoidance, anarrowing construction need apply only in those contexts whereit is necessary to avoid serious constitutional concerns.

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added a prOVISIOn prohibiting any construction orapplication of the statute that would abridge theexercise of First Amendment rights. See 18 U.S.C. §2339B(i). It did so against the backdrop of thelongstanding, well-settled case law cited in Part II,supra, establishing both the "specific intent"requirement and the requirement of a close causalconnection between the restricted speech and asufficiently serious harm.

CONCLUSION

Fifty years ago, confronted with a totalitariancommunist threat to the very existence of ourpolitical and social order, this Court insisted ondistinguishing innocent speech from speech with thepurpose and effect of advancing imminentlawlessness and violence. See, e.g., Elfbrandt, 384U.S. at 11; Robel, 389 U.S. at 264 ("For almost twocenturies, our country has taken singular pride inthe democratic ideals enshrined in its Constitution,and the most cherished of those ideals have foundexpression in the First Amendment. It would indeedbe ironic if, in the name of national defense, wewould sanction the subversion of one of thoseliberties."). If we are to preserve scholarship andjournalism of extraordinary value to all of us in ourmodern society, we can do no less today.Accordingly, Amici urge the Court to rule in favor ofRespondents/Cross-Petitioners.

November 23,2009

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Respectfully submitted,

BURT NEUBORNE

Counsel of RecordELIZABETH GOITEIN

EMILY BERJ\rIAN

DAVID UDELL

THE BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL OF

LA''''161 Avenue of the Americas,

12th FloorNew York, NY 10013(212) 998-6730

SIDNEY S. ROSDEITCHER

1285 Avenue of the AmericasNew York, NY 10019-6064(212) 373-3000

Attorneys for Amici Curiae