The Supreme Court and political speech in the 21st century: the implications of Holder v. Humanitarian Law Project.

AuthorHeins, Marjorie
PositionIntroduction through III. AEDPA and the Holder Litigation, p.561-586
  1. 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. (14) It then reviews the twelve-year Holder litigation, culminating in the Supreme Court decision rejecting every constitutional challenge that the plaintiffs presented to aspects of the "material support" law. (15) An analysis of Chief Justice Roberts's majority opinion reveals startling lapses of logic and inattention to precedent, but it is not yet clear whether the decision portends a broad rejection of the case law that emerged from the 1950s Red Scare or simply a politically driven ruling that will be essentially limited to its facts. (16) The final section of the article surveys reactions to the case in the broader context of the Roberts Court's First Amendment jurisprudence, and cautiously assesses the likely long-term consequences of the decision. (17)

  2. The Red Scare Background

    The Supreme Court did not seriously address First Amendment rights of political dissent until the period just after World War I, when Justice Oliver Wendell Holmes, Jr. famously announced the "clear and present danger" test for restrictions on speech; then promptly misapplied it to situations where dangers to U.S. security were neither clear nor present. (18) Justice Holmes soon changed his mind and urged a more strenuous application of "clear and present danger," (19) but it was not until the 1930s that the Court majority began to draw lines that genuinely protected political dissent. (20) In De Jonge v. Oregon, relied on by the plaintiffs in Holder seven decades later, (21) the Court reversed a conviction for "criminal syndicalism" that was based solely on the defendant's participation in an orderly meeting held under the auspices of the Communist Party. (22) Mere association with a presumably subversive organization was not sufficient to strip a person of First Amendment protection, Chief Justice Charles Evans Hughes wrote for the Court:

    While the States are entitled to protect themselves from the abuse of the privileges of our institutions through an attempted substitution of force and violence in the place of peaceful political action in order to effect revolutionary changes in government, none of our decisions goes to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application.... The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. (23) The rhetoric was powerful, but De Jonge's recognition of freedom of association did not survive the Cold War Red Scare. An early case, American Communications Association v. Douds, upheld an anti-Communist oath that the 1947 Taft-Hartley Act required of all union officers as a condition of receiving the benefits of federal labor law. (24) Chief Justice Fred Vinson, writing for a plurality of three Justices, (25) rejected First Amendment and vagueness challenges to the oath, reasoning that it was a legitimate effort by Congress to prevent political strikes that might set the stage for revolution. (26) He acknowledged that the breadth of the oath would raise additional questions if read "literally to include all persons who might, under any conceivable circumstances," hold revolutionary ideas, so he interpreted the language to cover only those "persons and organizations who believe in violent overthrow of the Government as it presently exists under the Constitution as an objective, not merely a prophecy." (27)

    Vinson's distinction between an "objective" and a "prophecy" did little to protect freedom of association. As a practical matter, it is a distinction rarely made by loyalty boards or investigators. (28) And the oath itself barred anyone who was a member of, or "affiliated" with, the Communist Party, regardless of state of mind. (29) Douds, the Court's first Cold War encounter with test oaths and guilt by association, became the government's main precedent as it defended other anti-subversive measures in the ensuing years.

    The Vinson Court's next freedom of association cases, decided in 1951, involved President Harry Truman's 1947 executive order requiring loyalty investigations of all federal workers and directing the Attorney General to create a list of "totalitarian, fascist, communist, or subversive" organizations, membership in, affiliation with, or "sympathetic association" with which would establish a presumption of unfitness for employment. (30) Two groups on the list challenged the absence of due process in its creation; they prevailed at the Supreme Court on narrow grounds in Joint Anti-Fascist Refugee Committee v. McGrath ("JAFRC"), (31) but the government resisted any change in its...

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