The boys are behaving better, and I have a chance now to return to the Humanitarian Law Project decision. In this post, I thought I’d approach the opinion from a different perspective.
Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.
Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.
And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.
But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”
If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).
So it seems to me that Humanitarian Law Project is endorsing a test for content-based speech restrictions that is less restrictive (and thus, if I’m right, more speech protective) than strict scrutiny. The trouble is that the Court doesn’t really define the test precisely. Is the test that content-based speech restrictions are constitutional if they are both narrowly tailored to a compelling government interest and at the same time leave open ample alternative channels for expressing the same message (a prong borrowed from the test for content-neutral restrictions), so that bans on speech coordinated with terrorist groups are generally constitutional because they leave open the alternative of independent advocacy? If so, how ample must the alternative channels must be? Or is the test that such restrictions are constitutional only if the restriction is on speech coordinated with the bad guys, on the theory that such coordination is independently punishable? (I don’t think so, but I wanted to flag the possibility.) Or is the test something else? We don’t really know.
But note that this is consistent, as I mentioned in an earlier post, with the Court’s holding in Buckley v. Valeo that the government may restrict expenditures that are coordinated with a candidate, even though the government may not restrict expenditures that are truly independent. If you want to run expensive ads urging the reelection of President Obama, you are free to do so under Buckley, since your spending is necessary for you to effectively communicate your message. But if you coordinate your speech with the President’s campaign, that is treated as a contribution (unless you fall within the media exemption), subject to the contribution limits, and thus probably prohibited.
The Court’s chief rationale for the distinction was that the coordinated expenditures are more likely to be implicit bribes than are the independent expenditures; but I don’t think that’s a particularly strong argument. Rather, I think that the real reason that restrictions on coordinated expenditures are easier to justify than are restrictions on independent expenditures (not to say that they should ultimately be found to be justified, just that they are easier to justify) is that people restricted from engaging in coordinated expenditures can still say pretty much what they want independently. People restricted from engaging in independent expenditures, on the other hand, have no such alternative for effectively conveying their message.
In any case, though, what I want to suggest that Humanitarian Law Project should not be read as a case holding that content-based speech restrictions are constitutional if they are narrowly tailored to a compelling government interest. Maybe it will unfortunately be read that way, and the Court’s lack of clarity on this point creates such a risk, but it shouldn’t be so read — since if it is so read, the result would be that all speech that defends groups labeled by our government as foreign terrorist organizations could be criminalized, which is something that can’t be right and that the majority itself is unwilling to support. Rather, the Court is saying that restrictions on speech coordinated with those groups are constitutional when they pass strict scrutiny, and stressing the fact that the restrictions are limited to coordinated speech and exclude independent advocacy. For such narrower restrictions, the test seems to be strict scrutiny. But for broader restrictions, both in this area and in others, the test may yet prove to be per se invalidation.
leo marvin says:
Would such a restriction really be “necessary?” The government’s interest in opposing the effects of the independent advocacy can be countered with its own opposing public advocacy. Coordinated assistance, on the other hand, tends to be a bell that can’t be unrung.
June 21, 2010, 6:23 pmmatth says:
If the ban on coordinated speech passes strict scrutiny, then so would a ban on uncoordinated expenditures. Yet, for a variety of reasons, we’re all pretty sure a ban on uncoordinated speech would be unconstitutional.
There are 2 ways to square this circle. Eugene says that the Court will apply a new, stricter-than-strict standard of scrutiny to uncoordinated speech. The more obvious conclusion, though, would be that the Court didn’t really apply strict scrutiny to the coordinated speech ban.
The Court never describes the government’s interest as compelling, never discusses narrow tailoring, and never confirms that the statute is the least restrictive means of achieving the government’s interest. And had the Court applied anything resembling conventional strict scrutiny, it is hard to see how the plaintiffs could have lost. (Especially on what was, I take it, a motion for summary judgment by the government.)
June 21, 2010, 6:34 pmChris Travers says:
This is especially odd since the statute says that it shall be interpreted to be consistent with rights of free speech and association.
June 21, 2010, 7:36 pmSuperSkeptic says:
“national security” heightened-intermediate scrutiny?
June 21, 2010, 7:52 pmChris Travers says:
Right. So we now have a 4th level of scrutiny ;-)
June 21, 2010, 8:01 pmHoward Gilbert says:
If an army travels on its stomach, logistics officers know that armies or terrorist organizations still have to do a lot of things that are not directly involved in killing other people. There is nothing dangerous about someone peeling a potato. However, when an enemy private in uniform is assigned the duty of peeling potatoes, he can still be lawfully targeted and killed in an air strike on the enemy camp. If nobody fed the enemy army, it would not be much of a threat.
In this case a group of people claim that they should be entitled to provide training and instruction to terrorist organizations as long as they do not believe that the information they provide will be directly used in a terrorist operation. Training in the regular use of computers, printing forms, the use of disposable cell phones, procedures for international funds transfer through banks, and even instructions on how to fly a jetliner are not obviously associated with any terrorist activity. However, if KSM and his associates had not been able to acquire this training, they would not have been able to carry out the 9/11 attack. However, it is not just the attack. To run an operation you need to know basic bookkeeping, database management, communications technology, and knowing how to peel potatoes is not a bad skill to pick up.
You might be able to show that training in transcendental meditation and yoga has no possible lethal use, and then they will use it to sneak some guy through customs in a box. The law is not content neutral in the sense that it applies to training and not all forms of speech, but then it is content neutral because it applies to all training and you don’t get to argue that your type of training should not be covered.
June 21, 2010, 8:14 pmMichael Masinter says:
My sense is different, and it is that, like Schenck during WWI, like Whitney and Gitlow during the red scare of the thirties, and like Dennis during the perceived communist threat of the fifties, the Court is upholding speech restrictions that target the perceived national security threat of the moment. The hallmark of the Roberts opinion, like Schenck, Whitney, Gitlow, and Dennis, is deference to legislative judgments in the face of a perceived national security threat. When the threat passes, the Court narrows (as in Dennis to Yates) or overrules (as in Whitney to Brandenburg) speech restrictions that in retrospect seem unnecessary and unjustified, but that in the heat of the moment, the Court blinks.
As for the language that purports to narrow today’s holding, remember that anyone relying on that language will have to first risk indictment and pretrial detention in maximum security conditions, prosecution, conviction, and imprisonment in a supermax pending appeal.
June 21, 2010, 8:22 pmA.W. says:
I’ll say it again. Given what the treason clause actually says, i find nothing at all remarkable in this ruling.
June 21, 2010, 8:25 pmOwen H. says:
So those who said Sinn Fein had legitimate concerns and gave money to them would fall under this too, right?
And of course, anyone objecting to a particular group being listed as “terrorists” now cannot advocate or work to alter that.
Can we finally now send all those involved in Iran/Contra to jail, please?
June 21, 2010, 9:05 pmMark N. says:
It’s possible there’s a Treason-Clause-based way of disposing of this case, but I’m unable to find any discussion of it in the actual ruling.
June 21, 2010, 9:31 pmJardinero1 says:
I am still scratching my head trying to find my way from, “Congress shall make no law… abridging… and to petition… ” all the way to this decision. I feel like Bugs Bunny popping up out of the hole and saying, “We must have made a wrong turn at Albuquerque.”
June 21, 2010, 10:32 pmA.W. says:
Mark
Agreed, I find nothing in the opinion on the subject, although i haven’t read all of it.
But still, it all sounds like a bill banning “aid and comfort” to our enemies. I have no problem with it.
June 21, 2010, 11:04 pmLaura Victoria says:
Michael Masinter is spot on here:
I am one of Eugene’s biggest fans, but I find often he looks at issues only in terms of what will happen when issue X gets looked at on the next round of cert. The real world is exactly what Michael describes. If the opinion is anything less than robust in drawing the lines, our friends in government – the Elena Kagans, Eric Holders, and Alberto Gonzalez’s of the world will push the envelope and prosecute people unjustly. They know this will have a chilling effect, and they know few will have the resources to get to SCOTUS for a clean-up ruling.
This happens in state courts all the time. Law X is thrown out in another state by SCOTUS. Close to identical law stays on the books in the other state. Oh, of course that law is subject to that state’s Supreme Court tossing any interpretation at odds with SCOTUS. Real world: cops and DAs “enforce” law as written in plain language, abrogate their own constitutional responsibilities, and let people try to get up to their state’s high court knowing that even the few with resources will likely not get there. That’s the real world and that needs to be the focus.
Should anyone get the idea I’m sick of analyses on how many angels can dance on the head of a pin, you would be right. The Court’s failure to be absolutely crystal clearly dispositive in the message Eugene suggests is not a side point, it is the main point.
June 22, 2010, 6:24 amThe NY times gets it right on free speech matters, this time « Muse Free says:
[...] trouble with this ruling, as the editorial points out, and others such as Eugene Volokh have described, is [...]
June 22, 2010, 6:49 amJustin says:
Well, if you want to be a textualist, it’s pretty easy to get from “Congress shall make no law” to here. The law wasn’t about speech, it was about material support. The Executive’s interpretation of the statute is that it incidentally applies to speech, and the Supreme Court has upheld that interpretation.
I don’t agree with the decision, but it’s pretty hard for me to fathom how Justice Thomas can intellectually arrive at joining this opinion. Yes, in his McConnell dissent he doesn’t state that all speech restrictions are illegal, he only states that “the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient.” But the government did PRECISELY THAT in McConnell in a way that was far more lucid and believable than here.
What really rues me about this decision is that “terrorism” is becoming the old FLSA during the Justice Black regime – it’s a magic word that changes the broad application of legal theory.
June 22, 2010, 8:41 amJustin says:
AW, this case isn’t about Treason, but remember that the First Amendment has no Treason exception. The Treason clause comes prior in time to the First Amendment and is therefore abridged to the degree the two conflict. If the First Amendment applies (key if), then no Treason can result.
Sorry to ruin your warbloodlust.
June 22, 2010, 8:44 amJustin says:
One other thought.
The argument by the Government here is laughable. Teaching a party to apply for humanitarian relief, negotiate peace treaties, and write articles to the editor is advancing terrorism? I understand that, as Justice Thomas’s facially-correct-but-rediculous-in-context dissent in Lawrence said, the Constitution does not bar a law just because it is silly. BUT – that’s PRECISELY what should happen when a constitutional right is at stake that requires the Supreme Court to review the justification for the law.
Ultimately, what bothers me the most is that the Court applies strict scrutiny to this application (correctly), and then says the Government’s argument meets the test. People have complained that when it comes to gay rights, SCOTUS defines rational basis review up. But this is clearly defining strict scrutiny down.
June 22, 2010, 8:58 amA.W. says:
Justin
> AW, this case isn’t about Treason, but remember that the First Amendment has no Treason exception.
And when you are talking about pure speech, I agree. But material support is speech + conduct as it is classically understood.
As for the idea that the first amendment limited the treason clause, give me a break. Madison believed that every single one of the bill of rights was already implied into the constitution, but felt that Jefferson had the better part of the argument by saying that its better to say it explicitly than leave it implicit.
June 22, 2010, 9:13 amJustin says:
AW, the “Material Support” in question here is, in fact, speech.* Material support is not speech + conduct as it is classicly understood, because either component can be missing, and indeed, “classic” material support does not include speech at all. “Classic material support” is usually MONEY.
And your second argument, for whatever it is, is not a legal argument. To the degree that it is a legal argument, it has been rejected. And if you were right, then the more obvious result is that Treason NEVER could be just speech, not that the Treason clause trumps the First Amendment clause and makes analysis of the First Amendment impossible.
* One could guess that coordination by itself could be seen as “conduct,” but I don’t think that works. I don’t think the Government would argue that “coordination” by itself — without any activity being coordinated may be criminalized, or is even sensical. And that position indeed got 0 votes – every *single* Justice analyzed the law under strict scrutiny. Even the government argued for intermediate scrutiny. Nobody had the teremnity to argue that speech wasn’t impacted because it’s the “conduct” (the coordination itself?) that was being criminalized.
June 22, 2010, 9:29 amJohnEMack says:
I am surprised at the relative lack of comment on the relationship of Citizens United to Holder. Five of the six justices who rejected the free speech claim in Holder upheld it in Citizens United. Three of the four justices who rejected it in Citizens United rejected it in Holder. As far as I can tell, the principal difference in the cases for the Holder majority is that while strict structiny applies to both, fighting terrorism is more important that fighting political corruption. But this line of reasoning is dangerously subjective. “Scrutiny” of any kind is tricky to apply from the bench, since courts are singularly ill-equipped to determine what is relatively more important than something else, and fact-finding by the legislative branch does not play the same role. Suppose the Congress had said, in the Campaign Finance Law, that attempts to avoid the pernicious influence of money are so important it justifies restricting free free. Arguably, the courts would pay no attention to such a clause. But why are courts in a better position to make such a determination, and upon what basis would they do so?
The dissents in Citizens United have it even worse. The essence of Stevens’ argument was that corporations were not persons, and only persons have first amendment rights. This logic could have been seized upon by the Holder majority to say that the primary Holder plaintiff had no standing to litigate their case, because it was not a natural person. Fortunately, the majority did not take this tack. But looming behind the Citizens dissent was the idea that some speech was not equal to other speech, “shall make no law” language to the contrary notwithstanding. And this is just the flip side of the “not all threats presented by speech are equal” coin. For since we engaged in a balancing test — the relative value of being able to speak about a topic against the relative danger such speech poses — the “lineup” of votes in Citizens and Holder is due almost entirely to a determination of the relative weights the justices put on public safety vs. political corruption.
June 22, 2010, 9:44 amJustin says:
I wouldn’t say that the dissents in CU have it worse. I don’t think you have the standing argument right, because the criminal prosecutions under the material statute would be against the organization’s members, not against the corporate body.
I also say you aren’t being completely fair regarding the CU’s decision. Underlying CU dissent is the theory that corporate speech will be regulated rather than banned (which I agree with), that corporate speech should have less-protected rights than noncorporate speech (which I partially agree with), that expenditures can be regulated as part of corporate regulation rather than speech regulation (which I partly agree with, at least in regards to for-profit corporations).
If there is a hidden “some speech was not equal to other speech,” it would only be that speech which tends to have an overall negative effect on the existence of a metaphorical “public forum of political discourse” is less protected than speech which tends to contribute to the well-being of that forum. While I agree that the Court should proceed cautiously if at all in using that rationale in regulating speech, it is of a completely diffent genre than the speech at issue in HLP. HLP regulates viewpoint-unneutral speech that is regulated precisely by who the speech favors, and certainly does not have a tendency to reduce the public forum of political discourse.
(I say this as someone who is on the fence, but probably would have concurred in the judgment in Citizen’s United, fwiw. While I disagree with the CU majority’s rationale, the CU dissent failed to consider – at all – the important distinction between political nonprofit corporation that is formed for the purpose of political activity, and a for-profit corporation that is formed for the purpose of, well, profit).
June 22, 2010, 10:09 amLaura Victoria says:
JohnEMack: Your points are well taken. I have not yet read opinion, but the result is quite shocking at least in terms of the majority. I gave them more credit for being consistent on 1st Am. Minority, I already knew were result-oriented hacks who only cared about the speech they approved of.
I hope majority is not of same ilk. I’m sure you will find much commentary on this topic once we’ve had a chance to fully review the opinion and digest same.
June 22, 2010, 10:10 amJR says:
Yes, I am of the same opinion as the author that advocacy efforts may be criminalized. I am particularly interested in the impact of the case since I work in the humanitarian field, and may come into contact with designated terrorist organizations in the course of my daily work. In countries such as Sri Lanka or Colombia, the national government’s only restraint on throwing us all in jail for negotiating humanitarian access into conflict zones at different roadblocks has been the Geneva Conventions and the general impression that, although these Conventions have lost their teeth now that international wars have subsided and almost all new wars are gaining ‘terror’ dynamics in assymetrical warfare patterns, the Conventions PROBABLY still provide us some protection. My faith that these perceptions will last, however, was shaken by yesterday’s ruling. Warfare is changing irrevocably, and the humanitarian impact of that war is harming to civilians. While from the white marble edifices of the US capitol it may seem a clear cut, black and white issue, in the jungles and mountains of many countries, it is not. The US has taken a leadership role with this court decision, it would appear in my eyes, to making any contact, even be it for the sake of civilians and with the intention of maintaining neutrality and impartiality, to be very dangerous for those of us responsible for negotiating humanitarian access. The next cases will not be tried in DC however, you can count on them taking place in Jerusalem, Bogota, Colombo and New Delhi, and the outcome will be mortifying for me and people like me who have dedicated their lives to working for those affected by conflict.
June 22, 2010, 10:11 amJardinero1 says:
Where within the enumerated powers does Congress obtain the authority to designate a group as an unlawful terrorist organization? Unless we have declared war against such a group, isn’t this a bill of attainder? The Constitution is very specific about what is treason and how one is convicted of it. Yeah, I know this statute is not about treason and that is precisely the problem. This statute seems like a wimpy end run around that.
June 22, 2010, 10:42 amChris Travers says:
Well, I think one should have to look at how far removed the training is from possible terrorist activity. I don’t think it should be enough to worry about conferring legitimacy, for example, so I’d draw a fairly clear line between something of common applicability to an organization (offering a service of peeling potatoes) and something solely of political applicability (here’s how to address the international community to get support for ending the conflict peacefully). To be sure there are tough cases, such as food aid for people displaced by a tsunami, but there might be some permissible cases there (for example, how to approach international organizations to bring in food aid and distribute it, so that the designated FTO is not in possession of the food).
To be fair, I don’t think that’s his view.
Let me ask you a question which I’d hope you are thinking about today ;-)
What right do you have to aid civilians whose day-to-day lives are governed by groups (foreign terrorist organizations or governments) your government doesn’t like? Do you have any right to interfere with the government’s foreign policy? What gives you the right to mitigate the collective punishment our government wants to mete out on them?
This is a harsh question but there’s a reason for it. I knew a lot of people growing up who were involved in the Sanctuary Movement. They would risk their freedom to help civilians living under death-squad governments supported by the US. Some were charged for their “crimes” and of those most I knew were acquitted. There is no legal right to aid foreigners that the government doesn’t want aided, but that doesn’t absolve individuals from moral responsibilities. Legal protections are only as robust as the moral courage of those who struggle for them, and if nobody is willing to risk long prison sentences to challenge this law responsibly, then it will never be struck down. This is a lesson I’ve learned not only from my Quaker upbringing but also my mother’s uncle who was deeply involved in fighting McCarthyism in his day through the courts, and even spent a year in jail for his convictions (pun intended).
Human courage is a powerful thing. Let’s all hope we have enough courageous people in this country to undo the damage caused by this opinion.
June 22, 2010, 11:49 amNickS says:
If I’m reading this correctly, even speech which is intended to make terrorist organizations seek peaceful legal redress is prohibited because it might “legitimize” them? If Al Qaeda was less detonation and more litigation, I’d certainly be happy. And they might even win.
June 22, 2010, 12:15 pmChris Travers says:
I actually don’t think that’s it. I’d actually go with a practical vs expressive line (where expression is highly protected and practical speech is relatively unprotected). I think the majority has it dangerously wrong in Holder v. HLP, but for reasons beyond that line.
It’s long established that an action that would otherwise be a crime doesn’t cease to be a crime merely because it’s carried out through pure speech. For example, if I help you plan a terrorist attack, my help is no different than if I gave you blueprints, materials, etc. Similarly if I write a book on how to commit tax fraud, or computer software (which is generally treated as speech) to help do the same, that’s still a simple matter of speech-as-conduct rather than suppression of expression. The Second Circuit’s opinion in Universal v. 2600 is a very good primer on this issue of conduct vs expression in areas of pure speech (in that case software to decrypt DVD’s).
So while the conduct at issue in Citizens United was conduct for the sake of expression, the expression at issue here was expression for the sake of conduct (i.e. trying to further a peaceful resolution to the Kurdish conflict in Turkey). The majority basically said that the government could ban coordination with such groups but left jurisprudence regarding expression untouched.
Thus I am free to talk about, for example, how I think Hamas might be able to more effectively struggle in nonviolent means than violent ones (for example leveraging smuggling operations to bring in video recorders, hand tools, etc. and record mass efforts by unarmed Palestinians to tear down the walls, Israel’s response, etc.), but I’m not allowed to lobby Hamas to make changes to their approach.
This line is found to some extent even in Yates (to violate the Smith Act, one must try to convince someone to DO rather than merely BELIEVE something) and Brandenburg (which refined this doctrine somewhat in terms of incitement to terrorism).
The problem with the majority opinion, however, is different, namely that everything that was said about the designated FTOs in the opinion was previously said about the Communist Party USA in the McCarthy era, namely that they were fundamentally a criminal enterprise, colluding against US interests internationally, lending legitimacy to Communist regimes around the globe, etc. I think that one important element missing from the court’s seemingly short view of history is that groups are usually trans-national in important ways in general, and so a distinction between a political organization in the US and a violent uprising in Kurdistan is not as water-tight as one might like to think. Opening the door on this sort of prosecution brings back the threat of a return to the McCarthy era but worse, since it would be applied to shadowy, ill-defined, multi-national boogeymen.
June 22, 2010, 12:20 pmAvoiding Bad Reactions by Foreign Nations as a Justification for Speech Restrictions? | theConstitutional.org says:
[...] would not apply equally to broader restrictions that also cover independent advocacy. And, as I argued below, the Court did stress that the speech restrictions in Humanitarian Law Project only applied to [...]
June 22, 2010, 12:56 pmJustin says:
But isn’t the conduct here actually expression?
In other words, isn’t the ultimate conduct here – presentation of claims to tribunals, negotiating peace agreements, and engaging in political advocacy – protected by the First Amendment? You say this is expression for the sake of conduct, but to me, if anything, it is conduct for the sake of expression.
Nor does the fact that the ultimate goal – obtaining judicial relief itself, entering into contracts, or obtaining legislative or governmental accomodations – not 1st Amendment rights appear to have any bearing, since they are the same types of things that one could also do by, say, buying advertisement supporting a particular candidate or ballot measure.
I think your broader concern is valid, and I don’t think the Court is objectively crafting a terrorism vs. corruption rule (even if it is motivated by such principles). But I also don’t agree with your distinction here.
June 22, 2010, 1:09 pmDilan Esper says:
The Court’s chief rationale for the distinction was that the coordinated expenditures are more likely to be implicit bribes than are the independent expenditures; but I don’t think that’s a particularly strong argument. Rather, I think that the real reason that restrictions on coordinated expenditures are easier to justify than are restrictions on independent expenditures (not to say that they should ultimately be found to be justified, just that they are easier to justify) is that people restricted from engaging in coordinated expenditures can still say pretty much what they want independently. People restricted from engaging in independent expenditures, on the other hand, have no such alternative for effectively conveying their message
I think this is part of it, but not all of it. It’s also that coordinated expenditures basically break down the entire contribution-expenditure dichotomy. In other words, if Buckley is right that contributions are less protected than expenditures because there’s a greater “speech” component in spending your own money and saying what you want in your own name than there is in handing your money to someone else who then may use it to say something you wouldn’t have said in their name, then it follows that if expenditures are really indistinguishable from contributions, they should be regulated as contributions.
For instance, if Obama said to a contributor who wanted to donate $1 million but couldn’t due to contribution limits, “I want you to take that $1 million and use it to put this ad (the content of which was prepared by my campaign team) on the air at these dates and times on these stations in this battleground state”, where that is exactly what Obama would do if he had raised $1 million in additional contributions from donors, that’s indistinguishable from the donor simply making the $1 million contribution and Obama spending the money.
So the contribution-expenditure dichotomy only works if coordinated expenditures are treated differently from independent expenditures.
June 22, 2010, 1:57 pmAaron says:
I’d turn that question on its head: what right does the government have to interfere, merely because it doesn’t like the rulers of one of the participants?
June 22, 2010, 2:19 pmChris Travers says:
Our Constitution allows the federal government to set foreign policy. As I say when I was growing up, I knew people who were breaking immigration laws by smuggling refugees to Canada. The refugees could not get asylum here in the US because the US supported the governments that were persecuting them.
I knew people who broke all sorts of other laws as dictated by their conscience. My father spent about a year in jail for a crime of conscience a few years before I was born. But in every case, moral courage took the situation and made it better. More on that later.
June 22, 2010, 2:56 pmA.W. says:
Justin
i don’t see a single thing in that statute that is banned that is just speech, rather than speech + conduct.
June 22, 2010, 5:24 pmAaron says:
Sure. It has the power to join treaties, and make wars, prevent the individual states from doing so, etc. But I nowhere see a specific grant to make criminal acting to frustrate the federal government’s foreign policy goals, nor do I see how the necessary and proper clause can be stretched to do so.
June 22, 2010, 7:28 pmJR says:
Chris said: “What right do you have to aid civilians whose day-to-day lives are governed by groups (foreign terrorist organizations or governments) your government doesn’t like? Do you have any right to interfere with the government’s foreign policy? What gives you the right to mitigate the collective punishment our government wants to mete out on them?”
I assume you are being somewhat fascetious in the last question, since collective punishment is expressly prohibited as a crime against humanity, per Article 33 of the Geneva Conventions of 1949. You are right that I do not have any right to interfere with any government’s foreign policy. The rights of humanitarians were originally governed by the Geneva Conventions, which as I bemoaned already once, have been eroded by the changing nature of warfare. The right to have humanitarian access was the precise reason that the ICRC was founded, so my argument would be that humanitarians must have the right to provide humane, impartial and neutral assistance to civilians not involved as combatants in the context of a conflict. The problem, it is true, is not so simple when we start redefining conflict as non-international, or as ‘public order’ situations. Making use of that type of scenario, the Sri Lankan Government refused access to areas throughout northern Sri Lanka while they mortar shelled into IDP camps, all the while denying they were doing so even though we could see via satellite imagery the exact mortar positions being used. Both sides in that situation abused the civilian population, although it is a fact that the authorities are more intimidating to humanitarians as they generally find the provision of any accomodation to foreigners on the battlefield to be at best an inconvenience, and at worst a potential for spying on them for foreign governments, or even worse, aiding terrorist groups.
June 22, 2010, 9:38 pmJardinero1 says:
That’s where I get stuck. Where does the Constitution allow the executive or the Congress to name any person or group as criminal or terrorist? Much less punish those who aid them. There is a treason clause to deal with persons who engage in treasonous acts.
June 22, 2010, 9:54 pmJustin says:
JW, that really doesn’t make any sense when you’re talking about an as applied challenge. I’m starting to suspect you have no clue what you are talking about.
June 22, 2010, 10:31 pmJardinero1 says:
I would recommend that anyone who is troubled by this decision and everything leading up to it read this biting editorial:
http://gonzalolira.blogspot.com/2010/06/is-us-fascist-police-state.html
Here is the money quote:
“Holder v. Humanitarian Law Project is not about limiting free speech—it’s about the state expanding its power to repress. The decision limits free speech in passing, because what it is really doing is expanding the state’s power to repress whomever it unilaterally determines is a terrorist.”
June 23, 2010, 1:15 pmLaura Victoria says:
Gardener – “Jardinero” I agree with your points and the cite. But Bill O’Reilly heartily agreed with the decision.
June 23, 2010, 1:28 pmChris Travers says:
Honestly if Bill O’Reilly heartily agrees with something, it’s a good idea to be very cautious before agreeing with him. Tim O’Reilly on the other hand? I usually find myself in deep agreement with him.
June 25, 2010, 2:13 amLaura Victoria says:
Don’t (yet) know Tim. Hopefully my sarcasm about Bill was evident without any emoticons.
June 25, 2010, 3:06 amNot-So-Sweet Charity « Around The Sphere says:
[...] Eugene Volokh: Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them. [...]
June 28, 2010, 6:37 am