The Supreme Court and Political Speech in the 21st Century: The Implications of Holder V. Humanitarian Law Project

Article excerpt

I. Introduction

The repression of American political dissent in the 1950s derived much of its force from the concept of guilt by association. (1) Even the Supreme Court of that era, which until the late 1950s did virtually nothing to rein in the loyalty investigations and purges, recognized early on that criminally prosecuting or otherwise punishing people for mere membership in or "sympathetic association" (2) with allegedly subversive groups was inconsistent with basic principles of personal guilt. The Court thus interpreted laws and loyalty programs that targeted political associations to require scienter, or knowledge of a disapproved group's purportedly unlawful aims. (3) But the scienter requirement alone did nothing to stop the heresy hunts; it was not until 1961, when the Court also required specific intent to advance a group's illegal purposes, that it imposed any meaningful limits on guilt by association. (4)

The all-important "specific intent" case, Scales v. United States, involved a criminal prosecution under the 1940 Smith Act for membership in the Communist Party. (5) The Court affirmed the conviction, but only by reading a specific intent requirement into the Smith Act's membership clause. (6) Explaining the importance of limiting associational crimes to situations where the defendant specifically shares the organization's unlawful purposes, Justice John Harlan wrote for the Court that if there were a "blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired." (7) The Court eventually extended this specific intent requirement to noncriminal cases, striking down loyalty oaths and investigatory programs that punished people for past or present Communist Party membership, even if they supported only the peaceful and legal programs of the Party. (8)

Fast forward to 2010, when the Supreme Court revisited this Cold War history, but rejected its application to a contemporary form of guilt by association: the prohibition of non-tangible, speech-related "material support" to any group designated by the government as a foreign terrorist organization ("FTO"). (9) In Holder v. Humanitarian Law Project, Chief Justice John Roberts's opinion for the Court declined to read a specific intent limitation into provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act ("AEDPA") that criminalized providing "material support," broadly defined, to any FTO. (10) Propounding a meaningless distinction between

membership in and material support to designated organizations, Roberts said that Scales, which concerned only membership, did not control the disposition of the case. (11) And he accepted the government's argument that nonviolent, nonmonetary, humanitarian aid or advice to an FTO may constitutionally be punished because it could lend the group legitimacy and thus undermine the U.S. government's foreign policy goals. (12) The Court reversed Ninth Circuit rulings that several elements of the material-support law were unconstitutionally vague, and dismissed the plaintiffs' and amici's First Amendment arguments with the assurance that AEDPA does not reach "independent advocacy" in support of the listed organizations. (13)

Was the Holder decision a prelude to Supreme Court acquiescence in another era of political repression comparable to the heresy hunts of the 1950s, with "terrorist" now substituted for "communist" as the demonized enemy whose threat to U.S. security is said to justify broad limits on free speech and association? Or was it a narrowly tailored and reasonable judicial acquiescence to the political judgments of the executive and Congress, affirming a law that already had built-in First Amendment protections? Or was it something in between?

This article first outlines the jurisprudential background to Holder: the Supreme Court's response to the repression of political dissent during the Cold War era, and its continuing protection for freedom of association. …