Wednesday, April 4, 2012
David Cole (Georgetown University Law Center) has posted The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine (Harvard Law & Policy Review, Vol. 6, pp. 148-177, 2012) on SSRN. Here is the abstract:
In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project seems to contravene all three. This article assesses the place of Humanitarian Law Project in First Amendment jurisprudence. It argues that the decision departs so dramatically from precedent that it was wrongly decided. But it also maintains that if the decision is to do least damage to First Amendment freedoms going forward, and if it is to be construed as far as possible in harmony with its precedents, three limiting features of the decision are essential to understanding its rationale.
At issue in Humanitarian Law Project was whether the government could make it a crime to engage in speech advocating only lawful, peaceful activity, when done in coordination with or for a foreign organization labeled “terrorist.” In Humanitarian Law Project, the Court properly ruled that the government may prohibit speech advocating lawful, peaceful activity based on its content only where it can satisfy the demanding standard that governs when laws prohibit speech on the basis of its content. But the Court’s application of that scrutiny bore no resemblance to any other speech case in the modern era and employed reasoning and reached results that are sharply inconsistent with substantial precedent. Where it had previously protected even direct advocacy of crime, it now denied protection to advocacy of peace and human rights. Where it had previously held that strict scrutiny placed a heavy burden on the government to demonstrate with concrete evidence that its specific speech prohibitions were necessary to further a compelling end, here it sua sponte advanced arguments that the government never made; said no evidence was necessary to support its speculations; and deferred to a legislative finding and an executive affidavit that did not even address the necessity of prohibiting speech, and were not based on any actual evidence. Where it had previously ruled that a desire to suppress particular viewpoints was enough to render a law presumptively invalid, here it took the government’s viewpoint-based motive in suppressing messages of legitimacy as a reason to uphold, not to strike down, the law. And where it had previously protected the right to associate with groups having both lawful and unlawful ends, and recognized that the right included the freedom to act in concert with one’s associates, inHumanitarian Law Project it reduced the right to an empty formalism.
Such dramatic departures from precedent suggest that the decision was wrongly decided. But until it is overturned, we must live with it. And that puts a premium on considering whether its rationale can be limited. The Court itself offered three possible avenues of limitation, but offered no explanation for why those avenues were doctrinally significant. None of the three distinguishing features the Court identified is sufficient to reconcile the result with First Amendment precedent. But if the case is to be harmonized as much as possible with precedent, its application should be limited to situations in which all three of the factors identified by the Court are present—namely, when the government is prohibiting only speech coordinated with or directed to foreign organizations that have been subjected to diplomatic sanctions for compelling national security reasons. Short of outright reversal, such a reading provides the most persuasive ground for restricting the damage Humanitarian Law Project does to First Amendment doctrine.