The Roberts Court’s Free Speech Problem

David Cole

On January 21, in its first decision of this term, Citizens United v. Federal Election Commission, the Supreme Court’s five-member conservative majority announced that the First Amendment bars Congress from imposing even mild constraints on the ways corporations can employ their vast financial resources to drown out the voices of ordinary people in federal election campaigns. On June 21, in one of its last decisions of the term, Holder v. Humanitarian Law Project, the same majority, this time joined by Justice John Paul Stevens, ruled that the First Amendment permits Congress to imprison human rights activists for up to fifteen years merely for advising militant organizations on ways to reject violence and pursue their disputes through lawful means. The two decisions purported to apply the same First Amendment standard, but in fact the Court applied that standard in radically different ways. In the Roberts Court’s world, corporations’ freedom to spend unlimited sums of money apparently deserves substantially greater protection than human rights advocates’ freedom to speak.

Ronald Dworkin has cogently identified the errors in the Court’s legal reasoning in Citizens United, a decision President Obama himself has criticized. But you won’t see the President condemning the decision in Humanitarian Law Project, the first Supreme Court case to pit free speech rights against national security since the September 11 attacks. At issue was a federal law banning “material support” to “foreign terrorist organizations” even when the “support” consists only of speech advocating peace and human rights. The lower courts had repeatedly declared the provisions that prohibit speech unconstitutional, but the Obama administration—represented by Elena Kagan, the Solicitor General and now Supreme Court nominee—appealed to the Supreme Court. (I argued the case for the Humanitarian Law Project, an organization that works to promote human rights and peace in conflict-ridden regions.)

The material-support law, enacted as part of the 1996 Antiterrorism and Effective Death Penalty Act and expanded by the 2001 Patriot Act, gives the Secretary of State virtually unchecked authority to place organizations on a list of “foreign terrorist organizations.” The list includes, among others, Hamas, Hezbollah, and the Kurdistan Workers’ Party of Turkey. It is a crime to provide “material support” to listed groups, not only in the form of money or weapons, but also in the form of speech; the law specifically prohibits anyone from providing them with “expert advice,” “training,” and “services.” According to the government the law prohibits even speech that advocates only lawful, nonviolent activity, including speech designed to discourage violence by encouraging lawful alternatives.

Under this law, when President Jimmy Carter monitored the June 2009 elections in Lebanon, and met with all of the parties to advise them on fair election practices, he could have been prosecuted for providing “material support,” in the form of “expert advice” to a designated group, because he advised Hezbollah. It means that when the New York Times, Los Angeles Times, and Washington Post published op-eds by Hamas leaders in recent years, they were engaging in the crime of providing “material support” to a designated terrorist group, because doing so provided Hamas a “service.” And it means that my clients, a retired judge and a human rights group, cannot continue to work for peace and human rights on behalf of the Kurds in Turkey, as they had been doing before the law took effect, without risking long prison terms.

In the past, the Supreme Court has ruled that the First Amendment protected the right to advocate even criminal activity, including overthrow of the government, so long as one’s advocacy was not intended or likely to produce an imminent crime. In the Humanitarian Law Project case, however, the Court ruled—for the first time in its history—that speech advocating only lawful, nonviolent activity can be subject to criminal penalty, even where the speakers’ intent is to discourage resort to violence.

The Court’s decision is all the more disturbing when contrasted with Citizens United. The campaign finance law that the Court struck down did not prohibit speech, but merely required corporations to use segregated funds to engage in political campaign speech. The material-support law, by contrast, criminalized speech outright—consulting with, advising, or speaking on behalf of, disfavored groups. The Court treated both as laws that restrict speech based on its content, which can be sustained only if they are narrowly tailored to serve a compelling government interest. Stanford Law Professor Gerald Gunther once described this speech-protective standard as “strict in theory, but fatal in fact,” because so few laws have ever survived it.

In both cases, there was no dispute that the government had a compelling goal; the question was whether the means chosen were necessary. Thus, in Humanitarian Law Project the Court asked whether barring peaceful communication with listed groups intended only to further nonviolent ends was necessary to protect our national security. In Citizens United, the question was whether requiring corporations to use segregated funds for campaign spending was necessary to guard against corruption of the political process.

In Citizens United, the Court imposed a heavy burden of justification on the government, and required solid evidentiary support for all justifications that the government offered. For example, the Court rejected the government’s argument that unrestricted corporate expenditures could lead to corruption of politicians because it deemed it unsupported by evidence of such corruption. By contrast, in Humanitarian Law Project, the Court upheld the material-support law based on justifications that were unsupported by evidence, and in some instances were not even advanced by the government. The Court reasoned that even if speech did not directly lead to violence, it might “legitimate” the group, thereby interfering with US foreign policy. And Chief Justice Roberts speculated that advising an organization on how to file human rights complaints with the United Nations might help the group use the law to “threaten, manipulate, and disrupt,” and that helping a group pursue peace might give it cover to prepare for its next attack.

The Court demanded no evidence that any of these hypothetical dangers had ever come to pass. Instead, the Court explained that, because the material-support statute’s goals were “preventive,” no evidentiary support was required. But of course, the campaign finance law was equally preventive, as it sought to forestall corruption and distortion of the political process. Indeed, virtually all laws restricting speech are “preventive,” inasmuch as they seek to avoid future harm.

Moreover, in permitting the government to suppress speech on the ground that it might make people think better of designated groups, the Court endorsed a “viewpoint-based” rationale directly antithetical to the First Amendment. The Court has reserved its most skeptical review for viewpoint-based laws which prohibit speech on one side of a particular issue, but not the other. In fact, until the current decision no viewpoint-based law had ever survived Supreme Court review. The government’s interest in barring speech because it might “legitimate” an organization is, by definition, “viewpoint-based”: It prohibits speech because it sends a message—that a group is “legitimate”—of which the government disapproves. Yet Chief Justice Roberts never even addressed this critique.

Roberts stressed that the Court’s decision addressed only speech “coordinated” with foreign organizations engaged in terrorism, not independent advocacy or speech coordinated with domestic groups. By “coordinated,” the Court seemed to mean speech that involves some kind of direct contact with the group in question. But coordinated speech is just as protected as independent speech; the right to speak necessarily implies the right to speak with and to others. Roberts never explained why, in an increasingly interconnected world, an American’s right to speak with a group should vary if the group is domestic or foreign. An American writing for the Guardian is no less protected from US criminal prosecution for his speech than one writing for the New York Times. And the Court has repeatedly upheld the right of US citizens to speak and associate with the Communist Party as long as they intended to further only lawful ends—even though Congress formally found that the Communist Party was an international conspiracy that used terrorism and other violent means to seek the overthrow of the United States by force and violence.

In short, while the Court ostensibly applied the same stringent standard of review in both Citizens United and Humanitarian Law Project, in the latter case it accepted arguments that would never have survived the scrutiny employed in Citizens United. Once the government invoked national security and the war on terror, the Court simply deferred to rank speculation, rather than requiring the government to meet the heavy burden of hard evidence and narrow tailoring that speech prohibitions based on content have heretofore required. History shows that it is in moments of great fear that governments are most likely to target speech and association. Such overreaching not only compromises the fundamental freedoms that undergird our democracy, but is likely to backfire, by targeting innocents and breeding resentment. When the Court allows unsupported speculation about “terrorism” and disapproval of a speaker’s viewpoint to justify making advocacy of human rights a crime, the First Amendment as we know it is in serious jeopardy.