The Volokh Conspiracy

I blogged several items yesterday about Holder v. Humanitarian Law Project. I’m still digesting the implications of the majority opinion, but it tentatively strikes me as somewhat troubling: It does allow a content-based restriction on speech by Americans, and while I think it can be limited to speech coordinated with designated foreign terrorist organizations — so that speech that’s independent of those organizations remains protected even if it ends up helping them — (1) that limitation is not as clearly set forth as I’d like, (2) the majority doesn’t say much to justify the constitutional significance of the distinction, and (3) I’m not positive that the distinction is sound (though I’m also not positive it’s unsound).

But I thought that it might be helpful to think about a slightly different fact pattern that might shed light on the coordinated/independent advocacy distinction. The fact pattern isn’t identical, but it strikes me as similar enough to be potentially instructive.

The fact pattern comes from the treason-by-propaganda cases, such as the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this “Vision of Invasion” broadcast while working for the Nazis:

Continue reading ‘Free Speech That Helps Bad Foreign Military Groups, and the Coordinated/Independent Advocacy Distinction’ »

Here’s a passage from Holder v. Humanitarian Law Project that would be very troubling if the restriction weren’t limited to speech coordinated with groups designated as foreign terrorist organizations — and may be very troubling even given that limitation. The Court is explaining why the restricted speech may jeopardize the government interest in “combating terrorism,” and thus why the restriction is necessary to serve that interest (a conclusion that I do agree is likely accurate as a factual matter):

Providing foreign terrorist groups with material support in any form also furthers terrorism by straining the United States’ relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks. We see no reason to question Congress’s finding that “international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally protected person, and aircraft piracy and sabotage.” The material-support statute furthers this international effort by prohibiting aid for foreign terrorist groups that harm the United States’ partners abroad: “A number of designated foreign terrorist organizations have attacked moderate governments with which the United States has vigorously endeavored to maintain close and friendly relations,” and those attacks “threaten [the] social, economic and political stability” of such governments. “[O]ther foreign terrorist organizations attack our NATO allies, thereby implicating important and sensitive multilateral security arrangements.”

For example, the Republic of Turkey — a fellow member of NATO — is defending itself against a violent insurgency waged by the PKK. That nation and our other allies would react sharply to Americans furnishing material support to foreign groups like the PKK, and would hardly be mollified by the explanation that the support was meant only to further those groups’ “legitimate” activities. From Turkey’s perspective, there likely are no such activities. See 352 F. 3d, at 389 (observing that Turkey prohibits membership in the PKK and prosecutes those who provide support to that group, regardless of whether the support is directed to lawful activities).

But of course our allies, both old allies and allies-for-the-moment, may “react sharply” to much speech by Americans, “and would hardly be mollified” by speech-protective explanations. The Turks might react sharply to people who say that the Turks committed genocide against the Armenians. The Pakistanis might react sharply to our tolerating publication of cartoons of Mohammed. Any foreign country might react sharply to revelations to leading American newspapers’ revealing the countries’ dirty secrets, or accusing the countries of various sins. And this might in turn undermine the “international cooperation … required for an effective response to terrorism” — or for that matter the international cooperation required for us to more effectively fight our out-and-out wars, such as the ones in Iraq and in Afghanistan.

Surely, though, this can’t justify restricting all speech by Americans that may alienate our allies, even when that allies’ cooperation is important to us. Nor can it justify restricting all speech by Americans that praises or makes excuses for groups that those countries view as terrorist, even when our government agrees.

This further leads me to assume that the Court really is focusing solely on speech coordinated with foreign terrorist organizations, and that its arguments 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 coordinated speech and not to independent speech. But it didn’t squarely hold that restrictions on independent advocacy would be unconstitutional, nor did it specifically explain the constitutional significance of a coordinated/independent speech distinction. I wish it had said more about this, and made absolutely clear that avoiding bad reactions by foreign nations does not justify restricting independent advocacy by Americans.

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.

Continue reading ‘Speech That Aids Foreign Terrorist Organizations, and Strict Scrutiny’ »

[UPDATE: I have since added a post that takes a different -- and, I think, more helpful, look -- at the strict scrutiny test as it is affected by Holder v. Humanitarian Law Project; you can see it here.]

The Holder v. Humanitarian Law Project majority acknowledges that the law was a content-based restriction on the speech of Americans. What’s more this is a restriction on speech that doesn’t fall within the existing First Amendment exceptions, such as incitement of imminent illegal conduct. And the restriction is imposed by the government acting as sovereign, not in its capacity as property owner, employer, educator, and the like, controlling speech using its own property, within its own institutions, or by its own employees.

But the Court upheld the restriction nonetheless. In principle, the Court has in many cases said that such restrictions may still be constitutional, if they pass “strict scrutiny,” which is to say that they are “narrowly tailored” to a “compelling government interest.” (For more on this, see my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997).) But in practice, this scrutiny has so far been — borrowing Gerald Gunther’s words about early equal protection strict scrutiny — very nearly “strict in theory, fatal in fact.” The only majority opinion until this one that has upheld a content-based speech restriction (again, imposed by the government as sovereign and operating outside the existing First Amendment exceptions) was Austin v. Michigan Chamber of Commerce, and that was just reversed by Citizens United v. FEC. (In Burson v. Freeman, which upheld a ban on electioneering within 100 feet of a polling place, only the plurality used strict scrutiny; the fifth vote was provided by Justice Scalia, whose argument was based on the government’s proprietary rights over public sidewalks.)

This decision is thus the only non-overruled majority opinion upholding a content-based speech restriction under strict scrutiny. Or at least this is so if the Court’s inquiry into whether the law is “necessary to further” “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order” is another way of asking whether the law is narrowly tailored to a compelling government interest. I’m inclined to say that this is indeed so — especially since the Court’s precedents call for strict scrutiny of content-based speech restrictions — though the dissent reasonably notes that the majority is not entirely clear on this.

So what does this mean? Does it suggest that other content-based speech restrictions will be more easily upheld in the future? I think it’s possible, but not very likely, because of the Court’s repeated insistence that the law doesn’t apply to independent advocacy, and only covers speech controlled by or coordinated with the group. In particular, the Court stresses this in the strict scrutiny discussion:

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.

I take this to mean that the Court would apply a more demanding standard — perhaps something more like per se invalidation — to a restriction that more seriously interfered with speech by blocking independent advocacy as well as coordinated.

I’d like to say more about this, but our family is on a trip right now, and my children are screaming about something; so my brief break from family duties is temporarily interrupted. But I think that (1) the application of strict scrutiny to uphold a content-based restrictions does pose a possible danger for the future, but (2) the Court did try to limit the application to coordinated speech, likely because a ban on all speech that helps a foreign terrorist organization — including independent advocacy — would be too speech-restrictive. (There’s an interesting parallel here with restrictions on independent expenditures supporting or opposing a political candidate, which Buckley struck down, and restrictions on coordinated expenditures, which it upheld.) I hope to have more to say about this tonight.

The Supreme Court has long distinguished content-based speech restrictions, which are almost never upheld (when they’re imposed by the government as sovereign rather as proprietor, and deal with speech outside the established First Amendment exceptions), from content-neutral speech restrictions, which will often be upheld if they leave open ample alternative channels for communication. And the Court has at times made clear that a restriction is content-based even if it turns only on the subject matter of speech or general content of speech (such as whether speech serves “philatelic, numismatic, educational, historical, or newsworthy purposes”), rather than with the specific ideas expressed by the speech.

Still, some lower court decisions — and perhaps at times the Court itself — have treated facially content-based restrictions as content-neutral if they deal with broad enough classes of speech. Holder v. Humanitarian Law Project seems to reject this:

United States v. O’Brien does not provide the applicable standard for reviewing a content-based regulation of speech, see R.A.V. v. St. Paul, 505 U. S. 377, 385–386 (1992); Texas v. Johnson, 491 U. S. 397, 403, 406–407 (1989), and §2339B regulates speech on the basis of its content. Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B depends on what they say. If plaintiffs’ speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge” — for example, training on the use of international law or advice on petitioning the United Nations — then it is barred. On the other hand, plaintiffs’ speech is not barred if it imparts only general or unspecialized knowledge.

This, I think, is in some tension with the Court’s conclusion in Hill v. Colorado (2000) that a limit on “protest, education, or counseling” outside health care facilities was content-neutral. I think the two cases are theoretically reconcilable, but I’m not sure whether such a reconciliation is likely to be entirely satisfactory or persuasive. But in any event, it seems to me that Humanitarian Law Project‘s discussion of content discrimination further points towards a broad definition of content discrimination.

For most restrictions, there’s little controversy about whether they are content-based or content-neutral. If the restriction treats speech differently based on the viewpoint or subject matter of the speech, on the words the speech contains, or on the facts it conveys, the restriction is based on the content (and the communicative impact) of speech. Classic examples: Bans on advocacy of illegal conduct (Brandenburg v. Ohio), on sexually explicit speech (Miller v. California), on all residential picketing except labor picketing (Carey v. Brown), on profanity (Cohen v. California), or on the publication of the names of rape victims (Florida Star v. B.J.F.). Some of these restrictions may be viewpoint-neutral, but they’re all content-based.

For more about the distinction between content-based and content-neutral restrictions, and the mysterious, mystifying, and perhaps even mystical “secondary effects” doctrine, see this post.

A post on Humanitarian Law Project and content discrimination reminded me that I’d never blogged my summary of the content-based/content-neutral speech restrictions under current First Amendment law. So here it is, extracted from my First Amendment textbook. (Note that all this assumes that the government is regulating speech acting as sovereign — not as proprietor, educator, employer, and the like — and that the restriction isn’t one of those legitimized by the existing First Amendment exceptions, such as the exceptions for obscenity, certain kinds of libel, threats, and so on.)

For most restrictions, there’s little controversy about whether they are content-based or content-neutral. If the restriction treats speech differently based on the viewpoint or subject matter of the speech, on the words the speech contains, or on the facts it conveys, the restriction is based on the content (and the communicative impact) of speech. Classic examples: Bans on advocacy of illegal conduct (Brandenburg v. Ohio), on sexually explicit speech (Miller v. California), on all residential picketing except labor picketing (Carey v. Brown), on profanity (Cohen v. California), or on the publication of the names of rape victims (Florida Star v. B.J.F.). Some of these restrictions may be viewpoint-neutral, but they’re all content-based.

If the restriction focuses on the noncommunicative aspects of the speech, and treats speech the same regardless of what it says, then it’s treated as content-neutral. Classic examples: Bans on all loudspeakers (Kovacs v. Cooper), on all leafletting (Schneider v. State), or on all sleeping in public parks (Clark v. CCNV).

Sometimes, though, the matter is indeed controversial, as in Texas v. Johnson or in the cases in this section, partly because the Court has enunciated at least four subtly different tests for deciding which restrictions are content-based:

Continue reading ‘Content Discrimination and the First Amendment (Including the “Secondary Effects” Doctrine)’ »

Today’s Holder v. Humanitarian Law Project says something that’s important for speech restrictions generally. Some laws ban a wide range of conduct that causes a certain kind of harm, and include speech that tends to causes the harm — and thus triggers the law — because of what the speech communicates. Thus, for instance,

1. A ban on aiding and abetting crime might be applied to books or Web sites that describe how a crime can be easily committed.
2. A ban on “willfully obstruct[ing] the recruiting or enlistment service of the United States, to the injury of the service or the United States” might be applied to speech that opposes the war and expressly or implicitly urges draft resistance (as it was in the World War I-era cases Debs v. United States, Frohwerk v. United States, and Schenck v. United States, cases that are generally thought to have been implicitly overruled by later decisions, such as Brandenburg v. Ohio).
3. A ban on offensive behavior that “disturbs the peace” (which may include excessive noise and the like) might be applied to speech that disturbs the peace by its content (as it was in Cohen v. California and many similar cases).
4. A ban on “assisting interference with the provision of abortion services” could be applied to speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism.
5. A ban on “conduct that knowingly or recklessly aids the enemy in time of war” could, among other things, ban speech that helps the election of an anti-war candidate. Such speech could even be banned by the existing law of treason — which bars intentionally aiding the enemy during wartime — if a prosecutor could persuade the jury that the speaker was motivated by a desire to help the other side.
6. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.
7. Tort law that makes actionable conduct that interferes with business relations could be applied to speech that urges a politically motivated boycott (see NAACP v. Claiborne Hardware Co.).
8. Tort law that makes actionable outrageous conduct that recklessly or intentionally inflicts serious emotional distress could be applied to speech that distresses people because of its content (see Hustler v. Falwell).
9. Hostile environment harassment law could be applied to speech that allegedly creates a hostile environment because of its content.
10. Legal rules that decide custody cases based on the best interests of the child could be applied to speech that supposedly interferes with the child’s best interest by teaching the child bad ideas.

(I discuss all these examples and more in Part I of my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell Law Review 1277 (2005).) In all these cases, defenders of the applicability of the laws could — and often do — argue that there should be no First Amendment scrutiny, or only the very deferential O’Brien scrutiny applicable to content-neutral conduct restrictions, because the law is a generally applicable law that applies to a wide range of conduct that happens to include speech.

The Supreme Court in Humanitarian Law Project rejected this argument, and in my view quite rightly so:

Continue reading ‘Freedom of Speech and Generally Applicable Statutes’ »

The Court just handed down its decision in Holder v. Humanitarian Law Project. There’s a lot there that’s important for free speech law, even for contexts far outside national security and anti-terrorism laws. And while the Court rejected the free speech claim (6-3, with the majority consisting of the conservatives plus Justice Stevens), there’s some language in its opinion that can help future free speech claimants. I hope to post several items today about individual aspects of that opinion.

For now, though, here’s a brief summary:

The statute, as interpreted by the Court: 18 U. S. C. §2339B, which outlaws “knowingly provid[ing] material support or resources to a foreign terrorist organization,” with “material support resources” defined to mean: any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

The Court stressed that the statute did not apply to speech that was engaged in independently of the foreign organizations, even if the speech could help the organizations. “Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: ‘The statute does not prohibit independent advocacy or expression of any kind.’ Section 2339B also “does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so.’”

Continue reading ‘Holder v. Humanitarian Law Project’ »