By Eugene Volokh
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.