Court Breaks Its First Amendment Streak

The Supreme Court broke its streak of pro-First Amendment decisions in today’s decision in Holder v. Humanitarian Law Project.  This “very difficult case,” as Justice Kennedy described it at oral argument, was decided by a 6-3 vote in an opinion written by Chief Justice Roberts.  Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.

The opinion held that the First Amendment does not bar the criminal prosecution of the Humanitarian Law Project (HLP) under a federal statute criminalizing “material support” to groups designated as terrorist organizations by the United States government.  HLP provided lessons on international law and non-violence to groups such as the Kurdistan Workers’ Party (PKK) and the Tamil Tigers.  The majority refused, however, to determine whether the federal statute would be constitutional as applied to “more difficult cases” that could arise in the future.

This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms.  In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment.  In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.

The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay.  Their fingerprints may be seen in the passages urging moderation:

We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” …

For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …

The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may pro  hibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.

Interestingly, the Court cites its 1989 opinion in Texas v. Johnson–the famous flag burning case–for the proposition of strictly scrutinizing the material support law:

As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less strin  gent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”

For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …

Stevens dissented in Texas v. Johnson, writing that he would have allowed the criminal law against flag burning to stand where the five-justice majority–in which Justices Scalia and Kennedy joined the liberal bloc of Brennan, Marshall, and Blackmun–applied a maximalist view of the First Amendment to strike down the Texas law.

Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism.  He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.

Justice Breyer read his dissent from the bench today, stating that the federal statute could not survive strict scrutiny.  Breyer, however, is no First Amendment maximalist himself, despite this morning’s oral dissent.  Today’s decision, when compared with this term’s earlier First Amendment decisions, is a reminder that on the Roberts Court there is no unyielding free speech champion.  Instead, the justices use the First Amendment as an ancillary issue to be used to their advantage on cases that touch their greater concerns, be they national security or campaign finance.

Breyer’s oral announcement of his dissent marked the second time this term a justice has done so.  Justice Stevens spoke for 20 minutes to protest Citizens United back in January.  There may be others yet, as a few more charged cases remain for the Court’s Thursday and Monday sessions.