David Cole: The Roberts Court's Free Speech Problem
[David Cole is a Professor of Law at Georgetown University Law Center.]
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 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....
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.
Read entire article at NYRB Blog
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 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....
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.