New York Court Enjoins US From Enforcing ICC Sanctions Against 2 Law Professors

The lawsuit concerns President Donald Trump's sanctions against the ICC, which include officials and entities linked to the court, and were imposed following the ICC's investigation of the Israeli military for war crimes in Gaza (see 2502070022). Trump initially sanctioned the ICC in his first administration, though the restrictions were revoked by President Joe Biden. Trump then reinstated the sanctions after returning to office.

After the sanctions were imposed the first time, private plaintiffs, including Rona, filed suit alleging First Amendment violations from the sanctions 2010020030). Judge Katherine Failla of the same New York court preliminarily enjoined the sanctions, finding that the plaintiffs were likely to succeed on the merits of their case against the measures, which were imposed using the same language as found in the renewed sanctions order.

In reviewing Rona's and Davis' case, Furman began by reviewing the sanctions' impact on the law professors' free speech rights to determine if they are content-based. If the restrictions are content-based, then the sanctions are subject to a higher form of judicial scrutiny.

Furman ultimately concluded that the ICC sanctions are content-based, since the sanctions order regulates "speech based on its function or purpose."

The judge first said the order "plainly regulates" the professors' speech, since the professors look to engage in action, including advising sanctioned parties and the ICC's Office of the Prosecutor "about applications for arrest warrants related to gender and other discriminatory crimes." The professors also looked to consult with victims and witnesses of international crimes to support ongoing investigations, submit amicus curiae briefs and communicate with the prosecutor's office about the placement of students in jobs and internships at the ICC.

"These actions are indisputably speech and fall comfortably within the broad scope" of the sanctions order, the decision said. The judge said the professors "are free to speak if their speech does not have the function or purpose of benefitting [ICC prosecutor Karim] Khan; but they are subject to civil and criminal penalties if it does have that function or purpose." Furman concluded that the sanctions are content-based, since the professors' speech "is restricted if, and only if, it has the function or purpose of benefitting" a sanctioned party.

The government's claim that the sanctions don't regulate protected speech is "unpersuasive," the judge said. The only support the U.S. offers for this claim is an excerpt from the Office of Foreign Assets Control's FAQs page that says OFAC doesn't sanction parties for their engagement in activities subject to constitutional protection. However, this statement pre-dates the ICC sanctions, the judge said, adding that the professors' "First Amendment rights cannot be defeated by the Government’s professions of good will."

The U.S. also argued the sanctions don't touch regulated speech, since OFAC has complied with the International Emergency Economic Powers Act's exemption for informational materials. Furman said the fact that the ICC sanctions don't regulate the transmission of "information" under IEEPA "does not lend support to the Government’s broader position that the Order regulates no protected speech at all."

For the sanctions to survive at this stage, the government had to show the sanctions are "narrowly tailored" and don't unnecessarily infringe on protected expression, the judge noted. "The Government cannot do so here," he said.

While the government touts interests in "national security and foreign affairs," the judge said these concerns don't "withstand strict scrutiny," since they are "overinclusive." The U.S. said by sanctioning Khan, the current prosecutor of the ICC, it's seeking to deter him from trying to exercise jurisdiction over U.S. individuals 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," Furman countered.

The government doesn't dispute that the sanctions bar the professors from "providing speech-based services even in connection with ICC prosecutions that the United States purportedly supports," and instead says blocking the professors from engaging with Khan is narrowly tailored to its interests, since it creates leverage over bad actors and discourages unfavored conduct. This claim "proves too much," Furman said, adding that it "would impose no limits on the President’s authority to sanction protected speech activity to 'discourag[e] certain types of conduct.'"

Even accepting the notion that restricting the professors' speech-based services can create leverage and pressure Khan's decision-making, this only shows that the restrictions are a "means for furthering" the government's goal, not that there are no "less restrictive" alternatives or that the restrictions don't "burden substantially more speech than necessary," the judge said. "Strict scrutiny demands more."

The judge lastly reviewed whether the professors would suffer irreparable harm without an injunction, evaluating the government's claim that the existence of licensing procedures undercuts the professors' claims of harm. "That is wrong," Furman replied, since the government "does not take a position on whether Rona and Davis are entitled to a license for their desired activities."