The First Amendment's borders : the place of Holder v. Humanitarian Law Project in First Amendment doctrine
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Harvard law and policy review, Vol. 6, no. 1, Winter 2012, p. 147-177
In Holder v. Humanitarian Law Project, decided in 2010, the Supreme Court addressed the constitutionality of punishing speech and association on the ground that they might further violence. The particular speech in question in Humanitarian Law Project (HLP) advocated only nonviolent, lawful ends; the plaintiffs principally sought to advocate for human rights and peace to and with the Kurdistan Workers’ Party, a Kurdish organization in Turkey that the Secretary of State had designated as a “foreign terrorist organization.” They did not intend to further the organization’s illegal ends; indeed, they sought to dissuade it from violence, and to urge it to pursue lawful ends through peaceful means. Yet the Court held, by a vote of 6-3, that the First Amendment permitted criminal prosecution of such speech. The HLP decision has potentially grave repercussions. Most immediately, nongovernmental organizations working to resolve conflict or to provide humanitarian assistance may well be unable to operate where designated “terrorist organizations” are involved, because any advice or assistance they provide could be criminally prohibited. Still more troubling, however, are the decision’s potential consequences for First Amendment doctrine more generally. Part I summarizes the case and its treatment by the Supreme Court. Part II details the grave consequences for First Amendment doctrine that the Court’s analysis portends if it applies generally. Part III asks whether HLP can be limited in ways that would preserve First Amendment protection for other speech and association disputes involving national security in the future.