Legal Commentary

Avoiding Bad Reactions by Foreign Nations as a Justification for Speech Restrictions?

By Eugene Volokh

Here?s a passage from Holder v. Humanitarian Law Project that would be very troubling if the restriction weren?t limited to speech coordinated with groups designated as foreign terrorist organizations ? and may be very troubling even given that limitation. The Court is explaining why the restricted speech may jeopardize the government interest in ?combating terrorism,? and thus why the restriction is necessary to serve that interest (a conclusion that I do agree is likely accurate as a factual matter):

Providing foreign terrorist groups with material support in any form also furthers terrorism by straining the United States? relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks. We see no reason to question Congress?s finding that ?international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally protected person, and aircraft piracy and sabotage.? The material-support statute furthers this international effort by prohibiting aid for foreign terrorist groups that harm the United States? partners abroad: ?A number of designated foreign terrorist organizations have attacked moderate governments with which the United States has vigorously endeavored to maintain close and friendly relations,? and those attacks ?threaten [the] social, economic and political stability? of such governments. ?[O]ther foreign terrorist organizations attack our NATO allies, thereby implicating important and sensitive multilateral security arrangements.?

For example, the Republic of Turkey ? a fellow member of NATO ? is defending itself against a violent insurgency waged by the PKK. That nation and our other allies would react sharply to Americans furnishing material support to foreign groups like the PKK, and would hardly be mollified by the explanation that the support was meant only to further those groups? ?legitimate? activities. From Turkey?s perspective, there likely are no such activities. See 352 F. 3d, at 389 (observing that Turkey prohibits membership in the PKK and prosecutes those who provide support to that group, regardless of whether the support is directed to lawful activities).

But of course our allies, both old allies and allies-for-the-moment, may ?react sharply? to much speech by Americans, ?and would hardly be mollified? by speech-protective explanations. The Turks might react sharply to people who say that the Turks committed genocide against the Armenians. The Pakistanis might react sharply to our tolerating publication of cartoons of Mohammed. Any foreign country might react sharply to revelations to leading American newspapers? revealing the countries? dirty secrets, or accusing the countries of various sins. And this might in turn undermine the ?international cooperation ... required for an effective response to terrorism? ? or for that matter the international cooperation required for us to more effectively fight our out-and-out wars, such as the ones in Iraq and in Afghanistan.

Surely, though, this can?t justify restricting all speech by Americans that may alienate our allies, even when that allies? cooperation is important to us. Nor can it justify restricting all speech by Americans that praises or makes excuses for groups that those countries view as terrorist, even when our government agrees.

This further leads me to assume that the Court really is focusing solely on speech coordinated with foreign terrorist organizations, and that its arguments would not apply equally to broader restrictions that also cover independent advocacy. And, as I argued below, the Court did stress that the speech restrictions in Humanitarian Law Project only applied to coordinated speech and not to independent speech. But it didn?t squarely hold that restrictions on independent advocacy would be unconstitutional, nor did it specifically explain the constitutional significance of a coordinated/independent speech distinction. I wish it had said more about this, and made absolutely clear that avoiding bad reactions by foreign nations does not justify restricting independent advocacy by Americans.

Full post as published by The Volokh Conspiracy on June 21, 2010 (boomark / email).