Peter Margulies (Roger Williams University School of Law) has posted Advising Terrorism: Hybrid Scrutiny, Safe Harbors, and Freedom of Speech on SSRN. Here is the abstract:
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Ever since Brandenburg v. Ohio, departures from content-neutrality under the First Amendment have received strict scrutiny. However, in Humanitarian Law Project v. Holder (HLP), the Supreme Court decided that the perils of content-regulation were less pressing than the need to curb the human capital of groups such as Hamas designated as foreign terrorist organizations (DFTOs). As a result, the Court upheld a statute that bars “material support” of terrorist organizations, ruling that the statute barred speech coordinated with DFTOs, including training in negotiation or the use of international law. Some commentators have labeled HLP as heralding a new McCarthyism. This Article argues that critics who condemn HLP as the reincarnation of Cold War content-regulation overlook the tailored quality of the decision’s hybrid scrutiny model, its roots in the Framers’ concerns about foreign influence, and its surprising parallels with constitutional justifications for professional regulation. However, Chief Justice Roberts’s opinion for the Court also sends needlessly mixed signals that may encourage government overreaching.
HLP is not the marked departure that critics claim. Anxiety about covert influence from abroad drove enactment of the Constitution’s Foreign Gifts Clause and Washington’s Neutrality Proclamation. Regulation of lawyers has long curbed asymmetries in information and crafted “rules of the road” that promote cooperation. Just as professional regulation limits lawyers’ use of pretrial publicity, HLP reduced the impact of asymmetries in information that terrorist groups exploit. Groups like Hamas only signal cooperation to maximize gains from defection, e.g., by treating a cease-fire as a pretext for rearmament. Curbing this defection scenario required limits on a narrow band of speech: communication between an agent and a DFTO on putatively nonviolent matters such as the negotiation of truces. To constrain government, HLP’s framework of hybrid scrutiny also provides a safe harbor for the independent expression of ideas, and for scholars, journalists, human rights monitors, and attorneys.
Nevertheless, HLP’s critics are right that the Court’s decision is flawed. Chief Justice Roberts’s opinion invited confusion about the First Amendment status of lending “legitimacy” to violence, which could quickly drain the safe harbor that the Court created for independent advocacy. Roberts’s opinion also made a studied show of deference to official sources, disdaining independent accounts of terrorist groups’ penchant for defection. Only the next case will tell if these flaws were minor missteps in a balanced decision or signs of a more severe conflict with First Amendment values.
