Federal Judge Blocks Trump Administration From Enforcing Certain ICC Sanctions

A federal district court judge blocked the Trump administration from enforcing certain sanctions related to the International Criminal Court, saying the sanctions violate free speech rights. The decision, issued Jan. 4 by Judge Katherine Polk Failla in the Southern District of New York, imposes a preliminary injunction on certain sanctions under the International Emergency Economic Powers Act outlined in President Donald Trump’s June executive order against the ICC (see 2006110028 and 2009300003).

The court’s decision stems from an October lawsuit filed by a group of human rights lawyers and law professors, who argued that the sanctions violate free speech protections and the U.S. Constitution (see 2010020030). While Failla did not agree with all of the group’s claims, the judge said their free speech concerns were justified.

The group argued that the sanctions essentially blocked lawyers and professors from participating in free “speech activities” with the ICC, including providing advice to ICC prosecutors on investigations “for which the United States has previously expressed support.” The Trump administration, however, argued that the group was “wrong about how much speech the Executive Order and the Regulations restrict.” But Failla sided with the professors and lawyers and said the extent of the restrictions aren’t clear.

“The restrictions prohibit or chill significantly more speech than even [the Trump administration] seem to believe is necessary to achieve their end,” the judge wrote. “And without any details as to how [the Treasury Department’s Office of Foreign Assets Control] intends to implement a licensing scheme for this sanctions regime, the Court cannot conclude, as Defendants suggest, that such a scheme likely provides an adequate safety valve.”

Although forthcoming regulations “could mitigate these concerns” by “providing narrowing constructions of certain terms,” Failla said the current regulations are not narrow. “The prospect of enforcement under IEPPA has caused Plaintiffs not to speak, and hence to forgo exercising their First Amendment rights,” the judge wrote. “Thus, enjoining Defendants from enforcing IEEPA’s civil and criminal penalties against Plaintiffs would eliminate this chill and prevent irreparable harm.”

The judge’s order blocks the Trump administration from enforcing IEEPA’s civil or criminal penalty provisions against the group of human rights lawyers and law professors “for conduct specifically addressed” in the order. The preliminary injunction “affirms what we have said from the start: the executive order is misguided and unconstitutional, violating our fundamental rights to free speech,” said James Goldston, executive director of the Open Society Justice Initiative, one of the parties behind the lawsuit. “Rather than spending time defending an order in direct conflict with Washington’s historic support for international justice, the incoming administration should rescind it on day one.” The White House didn’t comment.