52 Pages Posted: 20 Dec 2010 Last revised: 26 Sep 2013
Date Written: December 19, 2010
The holding in Humanitarian Law Project (HLP) v. Holder marks a significant shift in First Amendment doctrine, unprecedented since the early twentieth century “Red Scare” cases. The HLP decision suggests that free speech principles which have been developing for over half a century — culminating in the paramount protection of “subversive advocacy” — are less deserving of adherence in the face of terrorism than in times of relative peace. Throughout the past several decades, the Court has retreated from the notion that speech which is disturbing to public opinion but benign in its capability to incite imminent lawless action deserves lower legal protection. To the contrary, the HLP decision seemingly disregards that “freedom for the thought that we hate” has been heralded as a cherished American value, critical and fundamental to the preservation of democracy, and setting the U.S. aside as unique from other nations.
This article attempts to explain the Court’s shift in jurisprudence as resulting from structural flaws in terrorism legislation, and the “hydraulic pressure of emotion or politics” surrounding terrorism today. Drawing from two competing theories that 1) the Court’s commitment to free speech — even when disturbing — is fundamentally unwavering and unique to our nation; or 2) the Courts is “unwilling; or perhaps unable, to protect dissident speech except in periods of relative social tranquility,” this paper finds that the HLP decision tends to support the latter. In fact, as HLP shows, protective standards of “hated” speech do not appear to be based on a quest for promoting social or political values — as a unique right in American democracy — but rather on the speech’s proximity to threatening the government’s interest in self-preservation. The Court, in this sense, has strayed from the “categorical principle” of protecting “narrowly limited classes of speech” based upon their nature, to a protection of speakers based on the factual context of individual cases. This shift as marked by the HLP decision runs afoul of accepted free speech theories such as “marketplace of ideas” and “dissent theory,” and hence valuable concepts of moral philosophy in law that the judiciary strives to achieve.
Part I of this article discusses the parties involved in the HLP litigation as well as its procedural history over the course of changing legislation. Part II describes the free speech and association theory and background doctrine most relevant, concluding that Plaintiffs’ speech historically falls within a sphere of highly protected interests. A brief summary and critical analysis of relevant points from the HLP decision appears in Part III, with a following discussion in Part IV on how FTO designation and the war on terror metaphor fail to recognize complexities of terrorism, in turn complicating the role of the judiciary. Part V hypothesizes that, as applied to these particular Plaintiffs and parties involved, HLP chills a type of advocacy capable of furthering conflict resolution in which the government claims to share a moral interest. Part VI concludes that since HLP marks a departure from the categorical analysis of subversive advocacy formerly regarded by the Court as fundamental to American democracy, in the face of terrorism the Court must seek greater balance between adhering to precedent and reacting to modern dangers. This may be facilitated by addressing imprecision in the U.S. anti-terrorism laws, recognition of how the “war on terror” metaphor distorts public fears, and a careful weighing by courts of competing interests based on empirical evidence.
Suggested Citation: Suggested Citation
Armstrong, Alicia C., Friendly Fire Casualties of American Civil Liberty in the War on Terror: Humanitarian Law Project V. Holder and The Erosion of Free Speech (December 19, 2010). Available at SSRN: https://ssrn.com/abstract=1728580