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

By Heins, Marjorie | Albany Law Review, Fall 2012 | Go to article overview

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


Heins, Marjorie, Albany Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.