Tag Archives | Holder v. Humanitarian Law Project

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

[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 [...]

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 [...]

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 [...]

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