Legal Commentary

Humanitarian Law Project and Strict Scrutiny

By Eugene Volokh

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 was based on the government?s proprietary rights over public sidewalks.)

This decision is thus the only non-overruled majority opinion upholding a content-based speech restriction under strict scrutiny. Or at least this is so if the Court?s inquiry into whether the law is ?necessary to further? ?the Government?s interest in combating terrorism[, which] is an urgent objective of the highest order? is another way of asking whether the law is narrowly tailored to a compelling government interest. I?m inclined to say that this is indeed so ? especially since the Court?s precedents call for strict scrutiny of content-based speech restrictions ? though the dissent reasonably notes that the majority is not entirely clear on this.

So what does this mean? Does it suggest that other content-based speech restrictions will be more easily upheld in the future? I think it?s possible, but not very likely, because of the Court?s repeated insistence that the law doesn?t apply to independent advocacy, and only covers speech controlled by or coordinated with the group. In particular, the Court stresses this in the strict scrutiny discussion:

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.

I take this to mean that the Court would apply a more demanding standard ? perhaps something more like per se invalidation ? to a restriction that more seriously interfered with speech by blocking independent advocacy as well as coordinated.

I?d like to say more about this, but our family is on a trip right now, and my children are screaming about something; so my brief break from family duties is temporarily interrupted. But I think that (1) the application of strict scrutiny to uphold a content-based restrictions does pose a possible danger for the future, but (2) the Court did try to limit the application to coordinated speech, likely because a ban on all speech that helps a foreign terrorist organization ? including independent advocacy ? would be too speech-restrictive. (There?s an interesting parallel here with restrictions on independent expenditures supporting or opposing a political candidate, which Buckley struck down, and restrictions on coordinated expenditures, which it upheld.) I hope to have more to say about this tonight.

Full post as published by The Volokh Conspiracy on June 21, 2010 (boomark / email).