On Wednesday, Judge Furman granted a permanent injunction against an Executive Order imposing civil and criminal penalties on those who provide “services” to certain persons associated with the International Criminal Court (“ICC”). The plaintiffs, two law professors, had in the past submitted amicus briefs in support of the ICC, conducted trainings, and advised certain ICC individuals. Consistent with a 2020 decision from Judge Failla concerning a similar Executive Order (subsequently withdrawn in the Biden administration), Judge Furman determined that the new Order was “content-based” and therefore subject to strict scrutiny. As Judge Furman explained, “Plaintiffs are free to speak if their speech does not have the function or purpose of benefitting [the head of the ICC’s Office of the Prosecutor]; but they are subject to civil and criminal penalties if it does have that function or purpose.”
The Court found the government’s arguments to the contrary “unpersuasive”:
[The government’s] primary response is that the 2025 Order does not regulate protected speech. Its support for that statement? An excerpt from the OFAC website’s Frequently Asked Questions page stating that “OFAC does not sanction persons for their engagement in activities subject to U.S. constitutional
protection, such as protected speech . . . .” Plaintiffs’ First Amendment rights cannot be defeated by the Government’s professions of good will. Indeed, in United States v. Stevens, 559 U.S. 460, 480 (2010), the Government vigorously declared that it enforced the statute at issue narrowly so as not to sweep in any protected expression, but the Supreme Court was unmoved by its assurances. “The First Amendment,” the Court declared, “protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Just so here.
Being content-based, the 2025 Order “is thus presumptively unconstitutional.” Examining the scope of the 2025 Order, the Court held that it could not overcome that presumption because it was not narrowly tailored so as to serve compelling state interests. The Court explained:
The Government’s national security argument does not withstand strict scrutiny because it is overinclusive. In the Government’s words, “[b]y sanctioning [the head of the Office of the Prosecutor], the Government is seeking to deter him from continuing to attempt to exercise jurisdiction over the personnel of the United States and its allies without consent.” But it is undisputed that Plaintiffs want to engage in speech that is unrelated to the Government’s interest in shielding protected persons from ICC prosecution. In fact, the terms of the Order seemingly bar Plaintiffs from providing speech-based services even in connection with ICC prosecutions that the United States purportedly supports. Plaintiffs cite, for example, speech-based services to assist the ICC’s investigative and prosecutorial work in Ukraine, the Democratic Republic of Congo, the Central African Republic, Sudan, Libya, and Mali — work that has previously enjoyed the support of the United States.