Moreover, EO 13928 goes beyond mere content-discrimination to approach actual viewpoint discrimination. While the United States Supreme Court has held that content-based restrictions are presumptively unconstitutional, viewpoint-based restrictions are even more disfavored.14 EO 13928’s terms demonstrate its disapproval of the viewpoint that the ICC can or should exercise jurisdiction over American personnel or personnel of American allies.15 If an individual advocates for the position that the ICC does not and should not have jurisdiction over American or allied personnel, such speech could hardly be considered to constitute the provision of “services by, to, or for the benefit of” the designated ICC officials. On the contrary, speech advocating for the exercise of such jurisdiction—even when made independent of any coordination with the designated ICC officials—could constitute such services “for the benefit of” such officials based on the plain language of the statute and the lack of any further specified definition of “services.” The fact that the prohibitions in section 3 of EO 13928 appear to be viewpoint-based weighs against the constitutionality of the provision. The Supreme Court has insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.”16 Even if section 3 of EO 13928 is not viewpoint-based, it is nonetheless subject to strict scrutiny.

III. Strict Scrutiny Analysis

Because EO 13928 is at least a content-based, if not also viewpoint-based, speech restriction, it is subject to strict scrutiny, which “requires the government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”17 The first step of this analysis is to determine whether the government’s interest in enforcing section 3 of EO 13928 is indeed compelling. On its face, EO 13928 appears to satisfy this first step of analysis. EO 13928 expressly identifies the protection of American sovereignty and the maintenance of American foreign policy relationships as the government’s interest in issuing EO 13928.18 Generally, the Supreme Court has deferred to the other branches of government in identifying important American foreign policy and national security interests.19 More specifically, when the government seeks to prevent imminent harms in the context of national security and international relations, it “is not required to conclusively link all the pieces in the puzzle before [the Supreme Court] grant[s] weight to its empirical conclusions.”20 Nonetheless, the Supreme Court’s precedents clearly state that “concerns of national security and foreign relations do not warrant abdication of the judicial role.”21 In Holder v. Humanitarian Law Group, the Supreme Court quickly disposed of the issue of whether the government’s interest was compelling and held unequivocally that the government’s interest in combating terrorism is a compelling one.22 However, the interests implicated by EO 13928 do not reach the level of the government’s interest in combating terrorism. The government’s interest in protecting the life and limb of its citizens is undoubtedly “of the highest order.”23 However, unlike the government’s interest in combating terrorism, its interest in preventing the ICC’s exercise of jurisdiction over American or allied personnel does not implicate the same potential consequences. Unlike the terrorist organizations designated by the government in Holder, the ICC is not a violent or deadly organization. Failure by the government to prevent such exercise of jurisdiction by the ICC does not have the potential to lead to the death of American or allied personnel, but rather potentially opens them up to criminal liability under the Rome Statute. However, despite these arguments, a court will likely find that the government’s interest in protecting attacks on its sovereignty, national security, or foreign relations is compelling. Regardless of such a conclusion, EO 13928 will nonetheless fail strict scrutiny because the speech restrictions being imposed are not narrowly tailored to advance that interest.

In determining whether a speech restriction is narrowly tailored to the identified government interest, the Supreme Court has looked to whether the restriction:

1. materially advances the stated government interest;

2. restricts a significant amount of speech that does not implicate the interest;

3. fails to restrict a significant amount of speech that harms the interest;

4. is the least restrictive alternative available to advance the compelling interest.24

EO 13928 only marginally advances the government interest, and likely does not meet the threshold required by strict scrutiny. The government will point to the ICC Office of the Prosecutor’s decision to investigate the situation in Afghanistan, including alleged conduct by members of the United States armed forces and of the Central Intelligence Agency, as posing an imminent threat of prosecution against American personnel.25 In so arguing, proponents of EO 13928 will contend that the restrictions and interests implicated are substantially similar to those in Holder v. Humanitarian Law Group. In that case, the Supreme Court held that, in presenting evidence of an imminent harms in the context of international relations and national security, prohibiting the provision of “material support in the form of training, expert advice, personnel and services to foreign terrorist groups” did, in fact, materially advance the government’s interest in combating terrorism.26 Section 3 of EO 13928 is distinguishable from the factual circumstances in Holder. Unlike the statute in Holder, it is not clear that the “provision of [...] services by, to, or for the benefit of” the designated ICC officials actually undercuts the government’s actions in preventing the ICC from exercising jurisdiction over American and allied personnel.

The Supreme Court in Holder identified a number of facts about the nature of terrorist organizations to support its conclusion that the speech restriction in that case materially advanced the government’s interest in combating terrorism. The Supreme Court emphasized a finding made by Congress that terrorist organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”27 The Supreme Court used this congressional finding to justify the government’s sweeping prohibition against “material support” to designated foreign terrorist groups, even if the material support was not given in support of the group’s violent ends.28 However, unlike the nature of terrorist organizations, the ICC is not so tainted by its attempts to exercise jurisdiction over the United States that any “services by, to, or for the benefit of” the designated ICC officials would be tantamount to support for the ICC’s exercise of jurisdiction over American or allied personnel. In fact, of the Office of the Prosecutor’s ten open preliminary examinations and thirteen open investigations, it seems that only one implicates American personnel.29 Additionally, although the Office of the Prosecutor included American forces as potential perpetrators in its request to open an investigation in Afghanistan, the ICC has never successfully exercised jurisdiction over American personnel.30 Moreover, it is not clear how the speech being restricted by section 3 of EO 13928—which seems to cover any speech that supports the designated officials of the ICC or their work—undermines the government’s interest. The “services” that would be provided through an American speaking in support of the designated persons or their efforts in the Office of the Prosecutor does not seem to materially increase the threat of prosecution.

Even if section 3 of EO 13928 does materially advance the government’s interest in protecting its sovereignty from “illegitimate” exercises of jurisdiction by the ICC, the speech restriction fails the narrow tailoring prong of the strict scrutiny analysis, in large part because it is substantially overinclusive as it relates to the government’s interest. Before analyzing the overinclusive nature of EO 13928’s speech restrictions, it is necessary to consider whether the section’s vagueness expands the amount of speech that it ultimately covers. If the prohibition is substantially vague as to make the boundaries of the prohibited speech unclear, the amount of speech covered by EO 13928 increases accordingly.

In Holder v. Humanitarian Law Group, the Supreme Court contemplated a statute that prohibited the provision of “material support or resources” to foreign terrorist groups that had been designated as such by the Secretary of State.31 In finding that the statute was not impermissibly vague such as to render it sufficiently overinclusive to fail strict scrutiny, the Supreme Court emphasized the statutory narrowing that followed the initial passage of the statute.32 Indeed, the statute at question in Holder was substantially less vague than the language in section 3 of EO 13928. Congress had further specified the meaning of “material support or resources” in the statute in question in Holder, initially defining it as:

Any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.33

This additional guidance provided by the statute in Holder provides substantially more notice than EO 13928’s prohibition on “services to, by or for the benefit of” designated persons, without further clarification as to what constitutes services. Moreover, the Supreme Court in Holder highlighted the additional statutory narrowing undertaken by Congress following the passage of the statute.34 Specifically, Congress added the term “expert advice or assistance” to the definition of “material support or resources.”35 Furthermore, Congress clarified the mental state required for an individual to violate the statute, requiring knowledge of the “foreign group’s designation as a terrorist organization or the group’s commission of terrorist acts.”36 The government, in defending EO 13928, would argue that, like section 3 of EO 13928, Congress later added the term “service” to the definition of “material support or resources.”37 Congress also further defined “training” to mean “instruction or teaching designed to impart a specific skill, as opposed to general knowledge, and defined “expert advice or assistance” to mean “advice or assistance derived from scientific, technical or other specialized knowledge.”38 While the statute in Holder ultimately did contain the term “services” by the time it was analyzed by the Supreme Court, that term was couched in the context of a substantially detailed definition of what constituted “material support or resources.” Unlike the statute in Holder, EO 13928 does not contain any such definition of “services.”

More importantly than the definition of “services” was the Holder statute’s specific exception regarding independent advocacy for the designated terrorist groups. The Supreme Court strongly emphasized the fact that the statute reaches “only material support coordinated with or under the direction of a designated foreign terrorist organization,” and specifically noted that “[i]ndependent advocacy that might be viewed as promoting the group’s legitimacy is not covered.”39 The Supreme Court further stressed the importance of this exception, stating that its decision “in no way suggest[s] that a regulation of independent speech would pass muster, even if the Government were to show that such speech benefits foreign terrorist organizations.”40 Unlike Holder, neither section 3 nor any other provision of EO 13928 excludes independent advocacy from the prohibition, thus rendering EO 13928 substantially more broad in its speech restrictions than the statute in Holder.41

When the boundaries of a restriction on speech are not clearly drawn, the vagueness of the restriction will have a substantial chilling effect on potential speakers who aim to steer well clear of prohibited speech. This chilling effect leads a vague restriction, such as the one found in section 3 of EO 13928, to restrict a significantly greater amount of protected speech. In this case, the vagueness of EO 13928’s speech restriction would lead a reasonable person to steer well clear of the speech being restricted, especially when they could potentially face civil penalties and criminal prosecution as a result of engaging in the restricted speech. Because of the significant uncertainty left by EO 13928 as to what amounts to the prohibited conduct in section 3—unlike the considerable detail provided by Congress in the Holder statute—EO 13928’s vagueness substantially contributes to the amount of speech that is restricted by section 3.

A speech restriction is overinclusive if it restricts a significant amount of speech that does not implicate the government’s stated interest.42 That is true of EO 13928. Firstly, as briefly mentioned in discussing whether the speech restriction materially advances the government interest, section 3 of EO 13928 is overinclusive as to individuals whose speech may constitute “services by, to, or for the benefit of” the designated ICC officials but does not address, encourage, or otherwise mention potential ICC exercise of jurisdiction over American or allied personnel. Because of the vagueness of section 3’s prohibition on “services by, to, or for the benefit of” designated persons—which is not further defined in EO 13928—individuals can be expected to avoid any speech that reasonably could subject them to civil or criminal liability, as proscribed by EO 13928. This would likely include any speech directed to the ICC, whether or not it supports or even relates to the exercise of ICC jurisdiction over American or allied personnel. Moreover, because of the vagueness as to what constitutes “services,” especially “services […] for the benefit of” the designated persons, it is possible that even speech that presents a position of opposition against the ICC’s exercise of jurisdiction may be restricted by section 3. If this opposition speech would be restricted by EO 13928, the speech restriction is overinclusive as compared with the government’s stated interest. If, on the other hand, opposition speech would not be restricted by EO 13928, then the prohibitions laid out in section 3 constitute clear viewpoint discrimination.

Furthermore, section 3 of EO 13928 is overinclusive as to advice and advocacy efforts on the part of American citizens that relate to investigations and prosecutions that the United States has expressly supported. Given the vagueness of the prohibition on “services” in section 3, it is reasonable to conclude that EO 13928 prohibits any speech that is made for the benefit of the designated ICC officials, regardless of whether it advocates for the ICC efforts to exercise jurisdiction over American or allied personnel. EO 13928 does not contain a provision limiting section 3’s prohibitions to speech that in some way relates to the ICC’s exercise of jurisdiction over the covered personnel.43 Unlike speech that serves to advocate for the ICC’s jurisdiction over the personnel identified by EO 13928, speech made “by, to, or for the benefit of” the designated ICC officials that does not address that issue directly, does not implicate the government’s interest in preventing such alleged jurisdictional overreach.

Strict scrutiny analysis also requires a court to consider whether less speech-restrictive alternatives to the prohibition in question exist that will achieve the compelling interest. Such alternatives exist here. The main alternative to the speech restriction, as applied through section 3 of EO 13928, would be to limit the conduct that implicates the government’s interest without restricting speech. It seems that, given the government’s stated interest in imposing “tangible and significant consequences on those responsible for the ICC’s transgressions,” the main effect of EO 13928 takes the form of the significant property, immigration, and financial restrictions on the designated ICC officials themselves. Removing section 3(a) from EO 13928 would render it substantially less speech restrictive while maintaining essentially the same effectiveness in the advancement of the government’s interest in punishing the designated ICC officials in an effort to protect American sovereignty.

Finally, EO 13928’s speech restriction is underinclusive as it relates to the government’s interest in preventing the investigation and prosecution of American and allied personnel. A speech restriction is underinclusive in relation to the stated government interest when a substantial amount of speech that implicates the interest is not restricted by the law.44 EO 13928 at question here is underinclusive as to other foreign officials, including other officials within the ICC or even within the Office of the Prosecutor, who may similarly have been involved in or seek to exercise jurisdiction over American or allied personnel. The fact that a speaker could provide “services,” in the form of speech, to other members of those offices who do not work with the designated persons but may nonetheless aim to exercise jurisdiction over American personnel suggests that the government’s stated interest in protecting American sovereignty and preventing American and allied personnel from being subject to international criminal liability is pretextual. The Secretary of State has the authority to designate any foreign person who he determines has committed any of the acts in section 1(a) of EO 13928. In particular, section 1(i)(D), authorizes the Secretary of State to designate a person because they “have acted or purported to act for or on behalf of, directly or indirectly,” any designated person.45 This would almost certainly apply to the rest of the staff in the Office of the Prosecutor, meaning that the Secretary of State, under the direction of the President, could have, but did not, designate others in the OTP and ICC who may pose similar (alleged) threats to American sovereignty. Such an underinclusive application of the speech restriction undercuts the compelling nature of the government’s interest, and supports a finding that the restriction is not narrowly tailored to the government’s stated interest.

IV. Conclusion

The issuance of EO 13928 by President Trump, when taken together with the Secretary of State’s designation of Fatou Bensouda and Phakiso Mochochoko as designated persons under EO 13928, restricts an extraordinary amount of protected speech. Whether the government intented to restrict such a substantial amount of speech is immaterial.46 In sum, section 3 of EO 13928 is a content-based restriction—which at least borders on viewpoint discrimination—and is thus subject to strict scrutiny. As discussed, EO 13928 does not pass strict scrutiny because it is not narrowly tailored to its stated interest. More specifically, section 3 of EO 13928:

1. in large part fails to materially advance the government’s stated interest;

2. is overinclusive as to independent advocacy and those who provide services to the ICC but in no way facilitate or encourage the ICC’s exercise of jurisdiction over American or allied personnel;

3. is not the least speech-restrictive alternative available to the government in order to achieve its goal of protecting American sovereignty from ICC exercises of jurisdiction; and

4. is underinclusive as to services provided to other ICC personnel that do not work or otherwise professionally interact with the designated persons for their benefit.

For all these reasons, section 3 of EO 13928 fails strict scrutiny, thus rendering it an unconstitutional restriction on American citizens’ First Amendment right to freedom of speech.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020) [hereinafter EO 13928], available online. ↩

2. 2.

   Id. § 3(a). ↩

3. 3.

   EO 13928, supra note 1. ↩

4. 4.

   Id. ↩

5. 5.

   U.S. Constitution, amend. I, available online, archived. ↩

6. 6.

   R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382 (Jun. 22, 1992) [hereinafter R.A.V. v. St. Paul], available online. ↩

7. 7.

   Eleanor McCullen et al. v. Martha Coakley et al., 573 U.S. 464, 479 (Jun. 26, 2014), available online; Clyde Reed et al. v. Town of Gilbert, Arizona et al., 576 U.S. 155, 163–64 (Jun. 18, 2015) [hereinafter Reed v. Gilbert], available online; see also Carey v. Brown, 447 U.S. 455 (Jun. 20, 1980), available online. ↩

8. 8.

   Rosenberger et al. v. Rector and Visitors of the University of Virginia et al., 515 U.S. 819, 829 (Jun. 29, 1995) [hereinafter Rosenberger v. Rector], available online

   (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for restriction.”). ↩

9. 9.

   R.A.V. v. St. Paul, supra note 6; Reed v. Gilbert, supra note 7. ↩

10. 10.

    EO 13928, supra note 1, § 3(a). ↩

11. 11.

    See Eric H. Holder, Jr. et al. v. Humanitarian Law Project et al., 561 U.S. 1, 27 (Jun. 21, 2010) [hereinafter Holder], available online. ↩

12. 12.

    See id. ↩

13. 13.

    Edmund G. Brown, Jr. et al. v. Entertainment Merchants Association et al., 564 U.S. 786, 799 (Jun. 27, 2011) [hereinafter Brown v. Entertainment Merchants Assn.], available online. ↩

14. 14.

    Rosenberger v. Rector, supra note 8. ↩

15. 15.

    EO 13928, supra note 1. ↩

16. 16.

    Turner Broadcasting Systems, Inc. et al. v. Federal Communications Commission et al., 512 U.S. 622, 658 (Jun. 27, 1994), available online. ↩

17. 17.

    Reed v. Gilbert, supra note 7. ↩

18. 18.

    EO 13928, supra note 1. ↩

19. 19.

    Holder, supra note 11, at 33–36

    (noting that executive or legislative evaluation of the facts about possible threats to national security is entitled to deference). ↩

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Id.

    (“Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.”). ↩

23. 23.

    Id. ↩

24. 24.

    See, e.g., Carey v. Brown, supra note 7. ↩

25. 25.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorisation of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017), available online. ↩

26. 26.

    Holder, supra note 11, at 36. ↩

27. 27.

    Id. at 29–30. ↩

28. 28.

    Id. ↩

29. 29.

    Preliminary Examinations, ICC, available online (last visited Dec. 17, 2020); Situations Under Investigation, ICC, available online (last visited Dec. 17, 2020). ↩

30. 30.

    Defendants, ICC, available online (last visited Dec. 17, 2020). ↩

31. 31.

    Holder, supra note 11, at 8. ↩

32. 32.

    Id. at 21. ↩

33. 33.

    Id. at 8–9. ↩

34. 34.

    Id. at 11–12. ↩

35. 35.

    Id. ↩

36. 36.

    Id. ↩

37. 37.

    Id. ↩

38. 38.

    Id. ↩

39. 39.

    Id. at 31–32. ↩

40. 40.

    Id. at 39. ↩

41. 41.

    See EO 13928, supra note 1. ↩

42. 42.

    See, e.g., Carey v. Brown, supra note 7; Brown v. Entertainment Merchants Assn., supra note 13. ↩

43. 43.

    EO 13928, supra note 1. ↩

44. 44.

    See Brown v. Entertainment Merchants Assn., supra note 13; Carey v. Brown, supra note 7. ↩

45. 45.

    EO 13928, supra note 1. ↩

46. 46.

    Reed v. Gilbert, supra note 7

    (holding that a law that is “content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech”). ↩