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: […]