A War Like No Other
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In a crucial turn of the argument, the chief justice refused to read the statute in such a way as to allow any compartmentalization, even in the context of advocacy.11 A speech extolling only the humanitarian projects of the organization or defending the justness of the organization’s goals, Roberts reasoned, might lend legitimacy to the organization and thereby help it solicit funds or recruit members that might then be used to further the organization’s violent activities. Roberts also maintained that Congress might have feared that exempting any speech from the criminal ban of the statute would jeopardize our relations with the foreign nation trying to suppress the organization, even if it is assumed that the support entailed in the speech was a benefit only to the organization’s humanitarian activities. For example, at one point Turkey was at war with, and determined thoroughly to defeat, the PKK and the achievement of its separatist goals, and in that spirit may have tried to deny any support to any of the PKK’s activities, even those that are wholly peaceful. And, according to Roberts, Congress, anxious to foster international cooperation with an ally such as Turkey, may have authorized the secretary of state, through the exercise of the power to designate the PKK a foreign terrorist organization, to support that endeavor.
Although Roberts read the statute in such a way as to deny the compartmentalization of the violent and humanitarian activities of a designated organization, he did, in fact, recognize one limitation in the material-support statute as it applies to political advocacy. This limitation—so central to Roberts’s opinion—is premised on the distinction between independent and coordinated advocacy. Coordinated advocacy consists of advocacy that occurs in coordination with, or at the direction of, a designated terrorist organization, while independent advocacy remains a residual category—all advocacy that is not directed by, or coordinated with, a designated terrorist organization. Roberts read the statute to cover only coordinated advocacy. He insisted, “Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and [the Tamil Tigers], the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations.”12 The catch, however, is that in Roberts’s opinion the statute allows individuals to engage in such advocacy only if it is independent, as opposed to coordinated, advocacy.
Roberts maintained that the distinction between independent and coordinated speech is implicit in the term “services”—the category of material support that brings political advocacy within the reach of the statute. I am doubtful of this reading. According to Roberts, a service to an organization is an activity done for the benefit of the organization. Yet independent advocacy extolling the justness of an organization’s claim can be as much a service to the organization—a benefit done for, or conferred on, the organization—as coordinated advocacy. What moved Roberts to make the distinction between independent and coordinated advocacy, to my mind, is not the word “services” but a view of the Constitution—a view that remains to be examined. This view holds that coordinated advocacy on behalf of a foreign terrorist organization is not protected by the First Amendment.
The Court’s Decision and the Free Speech Tradition
A constitution establishes the structure of government and identifies the lawful means by which grievances are to be aired and social changes are to be effectuated. Violence is not one of those means. There is thus no constitutional interest in protecting violence as an instrument of change, and it is difficult to understand why a constitutional guarantee of freedom of speech, even one as absolute as the First Amendment, should protect speech urging others to engage in violence. However, starting in the period following World War I, and inspired by the dissents of Justices Holmes and Brandeis, the Supreme Court began to place limits on statutes that criminally proscribed the advocacy of violence. The purpose of this doctrine was not to protect the advocacy of violence in and of itself but to protect criticism of society so radical or far-reaching that it can only be implemented, so its proponents believe, through violent means. Radical criticism often operates, as Harry Kalven once put it, as the major premise upon which the advocacy of violence rests.13
This effort to place bounds on the censorship of the advocacy of violence had its ups and downs during the twentieth century but reached something of a resting point in 1969 in the Supreme Court’s decision in Brandenburg v. Ohio14—a case that, to borrow a phrase made popular in Roberts’s confirmation hearing, may be a “super precedent.”15 Brandenburg involved not a foreign but a domestic terrorist organization—the Ku Klux Klan—that held a rally on an Ohio farm at which there was advocacy or at least talk of violence. The Court held that an Ohio criminal statute proscribing the advocacy of violence could not, consistent with the First Amendment, be applied to the Klan members as long as the Klan’s advocacy was not directed “to inciting or producing imminent lawless action and [was not] likely to incite or produce such action.”16 A distinction was thus drawn between incitement to violence and the general advocacy of violence, with the state censor confined to proscribing incitement.
Of course, general advocacy can lead to violence, but this contingency was seen as a risk that had to be suffered in order to ensure the robustness of public debate. In that respect, as others have observed,17 Brandenburg followed from the Supreme Court’s 1964 decision in New York Times Co. v. Sullivan,18 which, in order to create more “breathing space” for the press, enlarged the risk of defamation that public officials must suffer. Sullivan required public officials seeking to recover damages for defamation to prove that the alleged defamatory statement was false and, even more decisively, that the speaker knew or had reason to know that it was false. There could be no recovery for the kinds of slips or errors inevitable in aggressive reporting or the rough and tumble of heated debate. The right of public officials to recover for damage to their reputations had to be limited, the Court reasoned, to make certain that debate on issues of public importance remains “robust, uninhibited and wide open.”19
The political advocacy at issue in Humanitarian Law Project—for example, a speech supporting the PKK—cannot possibly be regarded as incitement to violence or imminent lawless action. Suppose the advocate says that the platform of the PKK is just, or even goes so far as to argue that the justness of its demands entitles it to use violence. Such utterances may lend legitimacy to the PKK and help in its efforts to raise funds and to recruit members who might be willing to engage in violent action. In that way, such advocacy may be part of the causal chain that leads to violence. Yet the same could be said of the general advocacy of violence protected by Brandenburg—it too makes violence more likely. However, we protect the general advocacy of violence in order to preserve the radical critique upon which it is premised. Political advocacy that benefits or is made on behalf of a designated terrorist organization should also be protected so long as it cannot be regarded as an incitement to violence.
Admittedly, under the terms of the statute, the ban on political advocacy applies only to advocacy that benefits a foreign, as opposed to a domestic, terrorist organization. It is important to understand, however, that this ban applies to speakers who are Americans addressing their fellow citizens or their representative institutions for the purpose of changing the policy of their government toward such an organization. Criminalizing political advocacy on behalf of foreign terrorist organizations strikes a blow to American democracy, which in our times has become, as it must, increasingly cosmopolitan and concerned with foreign nations and foreign organizations.
Roberts virtually conceded that independent advocacy supporting a designated terrorist organization is protected by the First Amendment. Trying to assure his audience, he disclaimed any intent to allow Congress to criminalize independent advocacy: “[W]e in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.”20 Yet it is difficult to unders
tand why an advocate loses the protection of the First Amendment because his speech is coordinated with, or even made at the direction of, a designated organization.
We may have greater respect for an individual who takes it upon himself to speak out on issues of public importance and who acquires on his own the information needed for such speeches than we would for a person who speaks at the direction of an organization or who gets all his information from that organization. The independent speaker often strikes us as the more admirable person. But the democratic theory of the First Amendment—dedicated to preserving the vitality and robustness of public debate—requires that the focus be on the listeners and their need for information and critical perspectives, not on the moral qualities of the speaker. The character of the speaker—his independence—might make a difference in the listener’s evaluation of the speech, but, while such a concern may justify requiring the speaker to disclose the nature of his tie to the organization, it does not justify a flat prohibition on speaking.
Protecting the independent speaker in the way that Roberts promised might lessen the loss to democracy attributable to the ban on the coordinated speaker. As long as the independent speaker is protected, some views about the justness of the designated organization’s cause, or its use of violence, might reach the public. That contingency does not, however, render the loss to democracy from a ban on coordinated speech de minimis, and, in fact, there is every reason to believe that the loss is substantial. Although globalization and recent advances in the technologies of communications enhance the capacity of Americans independently to acquire information about foreign organizations, some degree of coordination or contact with these organizations still seems essential for Americans to develop well-informed opinions about these organizations and the United States’ policy toward them.
There is, moreover, no reason to assume that the loss arising from the ban on coordinated advocacy will—as a purely quantitative matter—be compensated for by the available independent speech. Granted, free speech doctrine has long been concerned with the availability of alternative channels of communication and has tolerated closing one channel (handing out leaflets inside a shopping center) when another appears available (handing out the leaflets at the entrance to the shopping center).21 But it has never tolerated a ban on one speaker on the ground that another might take his place.
First Amendment analysis depends not only on the quality and quantity of speech at issue but on the danger the speech presents to society. Roberts viewed sympathetically Congress’s decision to ban advocacy so long as it was coordinated on the theory that such speech might legitimate the designated organization and thus enhance its capacity to pursue violent activities.22 I do not dispute the capacity of political advocacy to legitimate an organization and thus to enhance the danger of violence. My claim, rather, is that this risk of legitimation is never constitutionally sufficient to justify censorship; the First Amendment demands that the remedy be more speech, not censorship. If, however, this danger of legitimation is sufficient to justify censorship, as Roberts suggests, it is difficult to understand why it is not sufficient to justify the censorship of independent political advocacy, which also might legitimate the designated organization and its activities and set in motion a causal chain leading to violence. In terms of assessing or weighing the social danger arising from speech, there is no reason to distinguish between independent and coordinated political advocacy. Both present the same danger to society.
After ruling that the statute covered coordinated but not independent political advocacy, Roberts manifested a rare commitment to the passive virtues and gave the statute as applied to coordinated advocacy what might, at first, seem a reprieve. He suggested that what was wrong with the First Amendment claim against the ban on coordinated advocacy was its generality rather than its merits.23 This reprieve was, in my opinion, only an illusion. Although Roberts was reluctant to say whether plaintiffs had sufficient ties to the designated organization to fall within the statutory ban, the entire opinion emphasized the distinction between coordinated and independent advocacy and was structured to deny that coordinated advocacy is protected by the First Amendment. Indeed, he wrapped up his First Amendment analysis with this peroration:
Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Government’s interest in preventing terrorism, it was necessary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends.24
At the outset of his opinion, Roberts identified the unusual procedural posture of the case. The Court was not being asked to review a criminal conviction for a violation of the statute; it was reviewing a request for an injunction against the enforcement of the statute. He also noted that there were two groups of plaintiffs seeking an injunction, one involving the PKK, the other the Tamil Tigers. The PKK plaintiffs, according to Roberts, alleged that, in addition to having an interest in training members of the PKK to use international law for the peaceful resolution of their disputes and to petition the United Nations for relief, they wanted to “engag[e] in political advocacy on behalf of Kurds who live in Turkey.”25 The other group of plaintiffs alleged that, in addition to wanting to help the Tamil Tigers present claims to international agencies for tsunami-related relief and negotiate a peace agreement with the Sri Lankan government, they wanted to “engag[e] in political advocacy on behalf of Tamils who live in Sri Lanka.”26 In commenting on this second branch of the case, Roberts noted, as this group of plaintiffs conceded before the Court, that the recent military defeat of the Tamil Tigers rendered moot their claims relating to the tsunami relief and peace negotiations, but not the one about political advocacy. Quoting from the plaintiffs’ brief, Roberts said, “[p]laintiffs thus seek only to support the [Tamil Tigers] ‘as a political organization outside Sri Lanka advocating for the rights of Tamils.’”27
The anticipatory quality of the relief plaintiffs sought raised a question of whether the case was justiciable. Should the Court address the plaintiffs’ free speech claims on the merits or require them to await a criminal prosecution and then seek review of the conviction? Fully in accord with the tradition that seeks to minimize the loss of speech arising just from the risk of a criminal prosecution, Roberts concluded, “[p]laintiffs face a credible threat of prosecution and should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”28 Later in the opinion, once the distinction between coordinated and independent advocacy was introduced and the statute was read to ban only coordinated advocacy, Roberts addressed the plaintiffs’ complaint about the uncertainty of “exactly how much direction or coordination is necessary” to bring them within the reach of the statute.29 Roberts then noted the generality of the plaintiffs’ free speech claim against the ban on advocacy and announced that the Court would stay its hand and await the evolution of a concrete factual situation before deciding whether plaintiffs’ proposed advocacy was coordinated as opposed to independent.
This line of argument reappeared near the end of the discussion of the free speech issues, after Roberts had issued a general endorsement of the statute and turned to an application of the Court’s ruling to “the particular speech” that plaintiffs proposed to undertake.30 In this context, he upheld the authority of Congress to criminalize coordinated speech when it consisted of training members of a terrorist organization—in particular, the PKK—to use peaceful methods of dispute resolution or to obtain relief from the United Nations. Yet he hesitated when the coordinated speech proposed by plaintiffs—in this instance, on behalf of both the PKK and Tamil Tigers—consisted of political advocacy. He never explained why, from a First Amendment perspective, political advocacy should be treated any differently from the training plaintiffs proposed to undertake. He merely said that pla
intiffs’ interest in political advocacy was “phrased at such a high level of generality that they cannot prevail in this pre-enforcement challenge.”31
In saying that the plaintiffs’ claim “cannot prevail,” Roberts did not, from my perspective, mean to qualify his general endorsement of the statute and the necessary implication that the statutory ban on coordinated political advocacy is constitutional. Rather, he was simply refusing to tell the plaintiffs on what side of the constitutional line they fell—that is, whether plaintiffs’ proposed advocacy was coordinated or independent. According to Roberts, plaintiffs “cannot prevail” in their constitutional attack on the ban on coordinated political advocacy because they “do not specify their expected level of coordination with the PKK or [Tamil Tigers] or suggest what their ‘advocacy’ would consist of.”32
Even this limited exercise of restraint is questionable, for it contradicts the tradition, earlier recognized by Roberts and well anchored in long-established doctrine,33 that calls for an accelerated adjudication of free speech claims. Roberts’s restraint puts on the would-be speakers the burden of either initiating another injunctive proceeding for the purpose of obtaining clearance for their advocacy or running the risk of criminal prosecution and a sentence of up to fifteen years in jail for their advocacy. Under either alternative, speech loses.
The Prism of War?
It will not be news to anyone that the Supreme Court was divided in Humanitarian Law Project. What might be news is that the Court was divided 6–3 and that the majority included Justices John Paul Stevens and Anthony Kennedy, often seen as friends of free speech. Neither wrote an opinion, so it is difficult to know the extent to which they subscribed to Roberts’s theory. I can imagine either one of them insisting that Roberts exercise a measure of restraint and fudge the advocacy issue.