My former boss, Judge Kozinski, dissented from denial of rehearing en banc in this case (U.S. v. Afshari), and I found his dissent quite persuasive; one of the defendants has petitioned for certiorari (Rahmani v. U.S. is the name of that matter), and I hope the Court agrees to hear the case.
For those who want a sense of what's going on, here's an excerpt from Judge Kozinski's dissent (some paragraph breaks added); I don't know why I didn't blog about it at the time, but better late than never.
It goes without saying that the United States government may prohibit donations to terrorist organizations.... [M]oney is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitutionally protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.
This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney.
The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process. Because I believe that the prosecution in this case runs contrary to two of our defining traditions — that of free and open expression, and that of justice and fair play — I respectfully dissent from the court's failure to correct the panel's errors by taking this case en banc....
It is firmly established that monetary contributions to political organizations are a form of "speech" protected by the First Amendment ..... [G]iving money to a designated terrorist organization is not protected speech. But if the organization is not a designated terrorist organization, then monetary contributions to it are protected by the First Amendment — maybe not to the same degree as pure speech, but protected nonetheless. A terrorist designation is thus a type of prior restraint on speech, because it criminalizes monetary contributions that would otherwise be protected by the First Amendment.
The panel dismisses Rahmani's First Amendment arguments with conclusory statements that the money here is being given to a terrorist organization, and is therefore a completely unprotected form of expression.... But this begs the question. The crux of the case — the issue the panel has elided in each iteration of its opinion — is the process by which the designation was made.
If the designation process does not comply with constitutional standards, then the designation is invalid and Rahmani's donations are protected by the First Amendment. In order to determine whether that process was constitutional, we must rely on the guidance of Freedman v. Maryland, 380 U.S. 51 (1965), and McKinney v. Alabama, 424 U.S. 669 (1976).
1. "[A]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Freedman, 380 U.S. at 57. In Freedman, the Supreme Court detailed the "procedural safeguards" that must accompany prior restraints on speech, setting a high hurdle for the government to clear before a restraint can be held constitutional. Freedman concluded that "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, [thus] only a procedure requiring a judicial determination suffices to impose a valid final restraint." Id. (emphasis added). The panel ignores Freedman entirely, upholding a prior restraint on speech that contains not a single one of Freedman's procedural safeguards....
For more, see the rest of Judge Kozinski's dissent, or the petition for certiorari, the government's brief in opposition, or the petitioners' reply, all available on Rahmani's lawyer's site. The site also includes amicus briefs in support of the petition from The Constitution Project (cofiled by Bruce Fein), and from Congressmen Bob Filner and Tom Tancredo on behalf of the Iran Human Rights and Democracy Caucus of the U.S. House of Representatives.