Vo.4-Moshirnia-Final

2013 / Valuing Speech and OSINT in the Face of Judicial Deference 454
barred speech. Finally, because this approach would not focus on FTO
legitimatizing speech, it would not create the underinclusive problem of
targeting coordinated speech and not the far more legitimizing category of
independent advocacy. 373 HLP is troubling not only for the Court’s outcome
but also for the strange means the Court used to arrive at that deleterious
conclusion. The Court undermined strict scrutiny and demonstrated an
alarming amount of deference to the Government in order to chill
nonviolent speech.
Supported by the HLP decision, the Government continues to
stretch the boundaries of criminalized speech related to terror, claiming that
Brandenburg does not apply to individuals who have interacted with terrorists
and ignoring Brandenburg when charging nonaffiliated domestic advocates of
terrorism. The American people are less free and likely less safe as a result.
More broadly, a military assertion that less speech will serve to protect more
freedom should not be credited; it flies in the face of repeated congressional
findings and a well-established doctrine encouraging more speech. Congress
has repeatedly stressed the vital nature of open source intelligence and
commented on the government’s repeated failures to make proactive use of
this resource. Civilian use of OSINT is flourishing through Crisis Mapping,
but the Government’s actions seek the removal of NGOs and other
information sources from troubled areas, undermining the effectiveness and
credibility of Crisis Maps. In light of the importance of OSINT and the
dubious constitutionality of the government’s positions, the Court should
not deviate from traditional speech protections. While the Court may have
considered a deliberate dilution of strict scrutiny a small price to pay for
enhanced security, the possible damage of the Court’s approach cannot be
so easily cabined. Weakened respect for foreign and domestic speech has far
reaching implications for how we approach the First Amendment, foreign
policy, journalism, human rights, military intelligence, and national security.
The Court must resist the temptation to blindly defer during times of crisis,
lest we render ourselves ignorant and visionless behind a curtain of
imagined safety.
373 Id. at 2737 (“And, as for the Government’s willingness to distinguish independent advocacy
from coordinated advocacy, the former is more likely, not less likely, to confer legitimacy than
the latter. Thus, other things being equal, the distinction ‘coordination’ makes is arbitrary
in respect to furthering the statute's purposes. And a rule of law that finds the ‘legitimacy’
argument adequate in respect to the latter would have a hard time distinguishing a statute
that sought to attack the former.”).