Vo.4-Moshirnia-Final

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2013 / Valuing Speech and OSINT in the Face of Judicial Deference 416 allow terrorist groups to refocus resources on violent terrorist activities. 171 Furthermore, such advocacy might lend legitimacy to terrorist groups and allow these groups to use the international legal system to threaten, manipulate, and disrupt. 172 HLP, then, essentially stands for the notion that the involvement of terrorist aliens transmutes protected political speech to actionable material support. 173 It is unclear what constitutional principles support this transformation. Writing in dissent, Justice Breyer argued that “‘[c]oordination’ with a group that engages in unlawful activity does not deprive the plaintiffs of the First Amendment’s protection under any traditional ‘categorical’ exception to its protection. . . . Not even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.” 174 While the Court provided little constitutional reasoning for its holding in HLP, the Justices in the majority believed that interpreting the statute to cover coordinated speech activity would serve a compelling Government interest in combating terrorism. 175 As a content-specific criminal restriction on speech, the statute should have received “strict scrutiny”’—the Court’s most searching type of review. 176 Although the 171 Id. at 2729. The Court explained that because money is fungible “‘foreign terrorist organizations that have a dual structure raise funds . . . highlight the . . . humanitarian ends to which such moneys could be put . . .’ but ‘there is reason to believe that foreign terrorist organizations do not maintain legitimate financial firewalls between those funds raised for civil, nonviolent activities, and those ultimately used to support violent terrorist operations.’” Id. at 2725–26 (quoting Declaration of Kenneth R. McKune, App. 135, 12). 172 Id. In this way, the statute appears to be a manner restriction, limiting whom the speaker may address, in addition to a content restriction. 173 See e.g., Erwin Chemerinsky, Not A Free Speech Court, 53 ARIZ. L. REV. 723, 729–30 (2011) (“The court allowed the government to prohibit speech that in no way advocated terrorism or taught how to engage in terrorism solely because the government felt that the speech assisted terrorist organizations. The restriction on speech was allowed even without any evidence that the speech would have the slightest effect on increasing the likelihood of terrorist activity. The deference that the Court gave to the government was tremendous and the restrictions it placed on speech were great.”). 174 HLP, 130 S. Ct. at 2733 (Breyer, J., dissenting). 175 Id. at 2724. 176 See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (“Since [the law] is a content-based speech restriction, it can stand only if it satisfies strict scrutiny.”); City of Houston v. Hill, 482 U.S. 451, 459 (1987). Though it is not relevant to the statute at issue here, it is interesting to note that the current Court does not seem to
417 Harvard National Security Journal / Vol. 4 Court claimed that its review amounted to strict scrutiny, 177 in practice the majority applied an analysis that bore few of the hallmarks of that high standard: narrow tailoring and least restrictive means. 178 Instead, the Court returned to an ignominious tradition of deferring to the military in wartime, even in matters of fundamental rights. The Government, surely aware of the oft-fatal touch of strict scrutiny, had argued that the restriction merited only intermediate scrutiny. 179 The Government argued that the Court should apply the intermediate scrutiny set out in United States v. O’Brien, 180 under the theory that § 2339B was a facially neutral regulation of conduct that only incidentally burdened speech. 181 Under this less exacting standard, the law need only be substantially related to an important government interest. 182 The majority rejected the Government’s suggestion that the Court apply a weaker First Amendment standard for conduct. 183 However, it is unclear what level of scrutiny the Court actually applied. To be sure, the Court adopted some of the language of the strict scrutiny standard when it considered whether there was a compelling Government interest in agree if all content-based restrictions trigger strict scrutiny, with limited historical exceptions, provided that the targeted speech involves false statements about easily verifiable facts. Compare United States v. Alvarez, 132 S.Ct. 2537, 2548 (2012) (Kennedy, J.) (plurality opinion) (noting that “[i]n assessing content-based restrictions on protected speech, the Court . . . . has applied the ‘most exacting scrutiny’ and applying strict scrutiny to the Stolen Valor Act) with Alvarez, 132 S.Ct at 2552–53 (Kagan, J, concurring) (applying intermediate scrutiny to same Act due to “the regulation[] concern[ing] false statements about easily verifiable facts” unrelated to “statements about philosophy, religion, history, the social sciences, [and] the arts”). 177 Analogizing to its decision in Cohen v. California, 403 U.S. 15 (1971), the Court wrote, “[W]e recognized that the generally applicable law was directed at Cohen because of what his speech communicated—he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied a more rigorous scrutiny and reversed his conviction. . . . This suit falls into the same category.” HLP, 130 S. Ct. at 2724. 178 The Court did, however, determine that the statute served a compelling state interest. Id. (“Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.”). 179 Id. 180 391 U. S. 367 (1968). 181 HLP, 130 S. Ct. at 2723 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968)). 182 O’Brien, 391 U.S. at 377. 183 HLP, 130 S. Ct. at 2724.
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