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NDAA Hearing Decision

NDAA Hearing Decision

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Published by: revolutiontruth on May 17, 2012
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not cover speech has been limited to speech that incites

violence, is obscene, or is incidental to criminal activity.

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 590 (1976).

However, the type of speech in which the plaintiffs here have

engaged does not, as presented at the hearing, fall into any of

those categories.

This Court is left then, with the following conundrum:

plaintiffs have put forward evidence that § 1021 has in fact

chilled their expressive and associational activities; the

Government will not represent that such activities are not covered

by § 1021; plaintiffs’ activities are constitutionally protected.

Given that record and the protections afforded by the First

Amendment, this Court finds that plaintiffs have shown a

likelihood of succeeding on the merits of a facial challenge to

§ 1021.

c. The Due Process Challenge: Is the Statute Void
for Vagueness?

To satisfy the Due Process Clause of the Fifth Amendment,

individuals are entitled to understand the scope and nature of

Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12 Page 52 of 68


statutes which might subject them to criminal penalties. Thus,

“[a] penal statute must define the criminal offense (1) with

sufficient definiteness that ordinary people can understand what

conduct is prohibited and (2) in a manner that does not encourage

arbitrary and discriminatory enforcement.” Skilling v. United

States, 130 S. Ct. 2896, 2928 (2010). That analysis is performed

against the backdrop of a strong presumption of validity given to

acts of Congress. Id.

In the absence of an accompanying First Amendment challenge,

a vagueness challenge is generally evaluated on an “as applied”

basis. United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.

2003); accord United States v. Whittaker, 999F.2d 38, 42 (2d Cir.


However, there is an exception to the general rule that

vagueness challenges are generally evaluated on an “as applied”

basis: courts have allowed facial attacks for vagueness when a

criminal statute lacks a mens rea requirement, even in the

absence of an accompanying First Amendment challenge. See City

of Chicago v. Morales, 527 U.S. 41 (1999). In City of Chicago,

the Supreme Court found a criminal statute that lacked a scienter

requirement vague and subject to facial invalidation. Id. at 55.

As stated above, § 1021 (unlike § 1022, or even 18 U.S.C.

§§ 2339A/B--i.e., the statute(s) under review in Holder) lacks a

knowledge requirement; an individual could fall within the

Case 1:12-cv-00331-KBF Document 36 Filed 05/16/12 Page 53 of 68


definition of “covered person” under § 1021 without having either

intentionally or recklessly known that he or she was doing so.

A question, then, for this Court is whether § 1021 should be

treated as analogous to a criminal statute. If it is, then the

test set forth in Skilling applies. See Rybicki, 354 F.3d at

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