The Humanitarian Law Project's speech should be fully protected under the First Amendment and thus, their speech should not be penalized or prohibited because to do that would be infringing upon virtually all speech promoting lawful activity to, for, or at a designated group, which violates the First Amendment.
The Antiterrorism and Effective Death Penalty Act of 1996 states that it is a crime to support terrorist organizations by providing material support as a matter of national security. It goes through several provisions, in which the Humanitarian Law Project (HLP) argues that these provisions against "training”, providing "expert advice or assistance", or providing "service" or "personnel" to terrorist organizations are too vague to be applied to their intended speech and these provisions’ interactions actually exacerbates their vagueness. These provisions are overly broad, criminalize pure speech, and instead discriminate on the basis of content. HLP states that they wish to engage in pure political speech and that to prohibit that would be criminalizing pure speech and that HLP is entitled to the highest First Amendment protection which states that "Congress shall make no law...abridging the freedom of speech, or of the press." Thus, I find that to penalize HLP would penalize virtually all speech promoting lawful activity to, for, or at a designated group.
I would use “that which promotes self-governance and democracy” and Meiklejohn’s philosophy of a political versus private speech, in that political is absolutely protected, and private speech is protected under the Fifth Amendment in that you would be protected under due process, but you do not have absolute free speech protection. I would use this philosophy in this case because this case involves political speech and a possible breach in national security. However, HLP is engaging in political speech in trying to teach a "terrorist organization" how to negotiate and communicate with governments like the US and the UN in order to proceed with peaceful negotiation, rather than outwardly violent acts. Thus, HLP should be absolutely protected.
I would also possibly use John Stuart Mill’s “harm” principle, in evaluating whether or not these actions might lead to harm. John Stuart Mill's "harm" principle suggests that we need to "distinguish between legal sanction and social disapprobation as means of limiting speech" in that we would need to evaluate whether or not HLP's speech would lead to actual harm, rather than simply offend. As Mill recognizes, "speech fosters authenticity, genius, creativity, individuality, and human flourishing" and thus, as we don't find that HLP's exercise of pure, non-violent speech in an effort to create peace would necessarily lead to harm, and because we cannot restrict free speech based on content discrimination, HLP, according to Mill's philosophy, should be protected.
I would use the theories of Bradenburg v. Ohio because I believe it to be the government’s responsibility to prove that the danger that they think will come of this is real, not imaginary and because the First Amendment protects free speech and cannot be interpreted in another way. Bradenburg v. Ohio protected all speech except that which incited imminent and immediate violence. That which would be a direct threat to national security would be restricted. Thus, because HLP is not inciting immediate or imminent violence and is not creating a direct threat to national security, their First Amendment right to free speech should be fully protected.
In this case, I would subject the government's actions to strict scrutiny level. I think that this level of scrutiny is the most appropriate because this case involves the infringement of a fundamental constitutional right that would be protected by the First Amendment in the Constitution (freedom of speech) and the government should absolutely be responsible for having to provide a compelling reason for pure, non-violent speech to be prohibited. However, I find that the government would not pass strict scrutiny because to prohibit this speech would be violating explicit constitutional protections (First Amendment giving freedom of speech) and HLP is not inciting imminent or immediate violence, and is not creating a direct threat to national security. In addition, the provisions that the government provides are overly broad and to prohibit the speech would be criminalizing free speech on the basis of content.
Overall, I would conclude that non-violent, peaceful, advice that is purely free speech to designated terrorist groups should be protected, not criminalized, because (1) by HLP wanting to provide a terrorist organization with non-violent advice passes Mill's harm theory and should be protected when coinciding with Meiklejohn's philosophy of political v. private speech. Also (2) according to Bradenburg v. Ohio, HLP is not inciting imminent or immediate violence and is not creating a direct threat against national security. They are instead, providing peaceful, non-violent advice to a "terrorist" group and exercising their right to pure, political speech as is their "fundamental", constitutional right. Also, (3) I find that a strict scrutiny level would be necessary here as the government would have to provide a compelling reason to restrict an explicit constitutional protection, but would also find that the law would not pass strict scrutiny. Even in a time of war (or in this case in associating with a terrorist organization), it doesn’t provide the President with a blank check to limit the rights of the Nation’s citizens. Congress’s law is not to violate the First Amendment and the government hadn’t shown that criminalizing purely peaceable expression is necessary to the nation’s security or given any other compelling reason to prohibit or criminalize a constitutional right. Thus, I conclude that the plaintiff’s (HLP's) proposed speech must be protected. I believe that HLP should be allowed to continue on with their right to exercise pure, non-violent, free speech.
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ReplyDeleteTo begin with, I completely agree with your decision to use Meikeljohn’s philosophy of free speech. Because this case deals with political speech, it would not make sense to employ Emerson’s philosophy of individual self-fulfillment. Nor would it be reasonable to solely approach this case as an expression of intellectual freedom and the search for truth.
ReplyDeleteThe main contradiction I see in the outline of your argument is your decision to use both Dennis v. United States and Brandenburg v. Ohio. These cases are both very important, but the conclusions they represent are distinct. In Dennis v. United States, the conclusion actually reverted to the use of the bad tendency model and actually convicted Dennis on the grounds that his teachings were likely to have lead to eventual violent revolution. At moments in this case, the clear and present danger standard was alluded to, but was not used to arrive at the final conviction. Brandenburg v. United States on the other hand, goes beyond the clear and present danger standard and establishes a new standard of incitement, which would require that the danger resulting from the speech in question be immediate and imminent.
In regards to your conclusion, I think it would make the most sense to use the incitement standard set in Brandenburg v. United States, because in the case of HLP, their speech is not likely to be seen as the cause of imminent, immediate danger.
I think that rather than applying intermediate scrutiny to this case, a level of strict scrutiny would be more appropriate. This way, the government would be responsible for providing more evidence of the harm caused by the speech in question and would be required to employ the least restrictive corrective means possible. Finally, I think that your conclusion to allow the continuation of HLP’s speech is highly rational.
You make a strong argument here that the government’s application of the law in this case criminalizes pure speech. You follow a logical course that by penalizing the Humanitarian Law Project, the government would also need to penalize all speech that is in some way associated with what the US defines as a terrorist organization. Following this, you would have a clear case of possibly incriminating the government for any speech they engage in with these organizations, even if it is only in responding to a threat or issuing a line of questioning in court. I also agree with your application of Meiklejohn here because it seems as though the HLP's political speech in advising these organizations is protected by Meiklejohn’s definitions. If you were a Supreme Court Justice, I think the way you proposed to cite the harm principle would further your argument and possibly convince other justices to agree with you. I do not believe Mills alone would allow you fully evaluate the case at hand but in conjunction with Meiklejohn it sounds as though you have strong philosophies you are relying on that would allow you to make your case.
ReplyDeleteOne thing I am unclear about here is how both court precedents would work in deciding HLP v Holder because they seem so different. If you had to pick only one, which would you choose? My interpretation is that as you go on to your conclusion, you feel this case “does not pass the clear-and-present danger test in that pure, peaceful, non-violent speech does not create an imminent threat or danger to the United Nations or the US government.” Based on this, it sounds as though you are putting more emphasis on Brandenburg v US in your argument that this case establishes no threat or danger. From this, I think you have a stronger inclination to use the theories resulting from Brandenburg.
I really like the justifications you provide in your conclusion, and would agree with what you feel should be protected. I think you apply the First Amendment in a way that supports your claim that the HLP “should be allowed to continue on with their right to exercise pure, non-violent, free speech.”
I would also agree with you Kim, in your statement that the Humanitarian Law Project should be allowed to continue forward with their right to exercise pure, non-violent, free speech. Inclusively, with added protection for their participation with other organizations that may be deemed “terrorist organizations,” by the United States government. I strongly support your statement of, “The government’s defense of these provisions account for the fact that they criminalize pure speech, violating their First Amendment right as well as HLP’s right to association. To penalize HLP would penalize virtually all speech promoting lawful activity to, for, or at a designated group.” I would additionally support this statement by citing Article 19 of the Universal Declaration of Human Rights that states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. I believe that while this matter is one that can be complex in the dynamics of free expression and national security, it is one that is simply protected under the First Amendment as free speech and additionally as stated above – by the Universal Declaration of Human Rights. This case is one that should not be left to the unjust persecution of the United States Government, and should be vehemently defended.
ReplyDeleteI really liked the support that you used to support your argument that the HLP should have the right to train terrorist organization about peaceful conflict resolution and the advancement of human rights. Your use of the harm principle and use of Mieklejohn's philosophy were a good way to get your point across.
ReplyDeleteYour argument about the absence of clear and present danger is valid, but I am reluctant to agree that clear and present danger isn't a factor in this case. How does the HLP know that interfacing with terrorist groups would lead to negative consequences. Many terrorist groups seem to be very set in their beliefs and the way that that they act, and I don't know if offering training would do anything to help, but instead might have an opposite effect. However, how can we know that this is the case if the HLP doesn't have the right to give it a try. It's a sticky situation, and I'm still not quite sure on the desired outcome of the case.
As for intermediate scrutiny, I definitely agree with your statement that the government must provide substantial evidence before a decision is made. The government's interest shouldn't be advanced, and clear reason should be provided. Since there is the possibility of harm, I feel that minimal scrutiny would be in the government's favor too strongly, and strict scrutiny might lead to speech that shouldn't be protected in this case.
As you can see, I am somewhat undecided on which side I stand on in this case, but you brought up some good arguments that have made me rethink my original stance on the subject.