Humanitarian Law Project -- the dissent

How much deference, then, does the dissent say should be given to the government's judgments in this high-scrutiny First Amendment context?

On this point, Justice Breyer makes three points. The first is that "here, there is no evidence that Congress has made ... a judgment regarding the specific activities at issue in these cases." (Dissent at 15.) It does appear, in fact, that neither Congress nor the State Department official's affidavit on which the majority relied repeatedly does specifically focus on material support in the form of, for example, training in the use of international dispute resolution mechanisms. Breyer writes that "[t]he most one can say in the Government's favor about these statements [invoked by the Government] is that they might be read as offering highly general support for its argument." (Dissent at 9.)

But perhaps one should defer to such highly general support, on the ground that foreign policy issues are distinctively in the political branches' sphere of expertise and responsibility? Breyer's second point is that while "the Government's expertise in foreign affairs may warrant deference in respect to many matters, e.g., our relations with Turkey, .... it remains for this Court to decide whether the Government has shown that such an interest justifies criminalizing speech activity otherwise protected by the First Amendment." (Dissent at 16.) This statement is somewhat elusive. Perhaps Justice Breyer means that the Government can tell the Court that our relations with Turkey matter, but nothing more. Breyer next says, however, that "the fact that other nations may like us less for granting that protection cannot in and of itself carry the day." (Id.) That observation seems to imply that Breyer concedes also that the Government can tell the Court that particular steps by the U.S., such as criminalizing or not criminalizing certain kinds of speech, will cause other nations to dislike us -- in other words, that the Government not only can define what our foreign policy goals are but also has expertise, entitled to at least some deference, concerning the impact of events and actions on those goals.

If Breyer would go that far, why doesn't he accept the government's argument that here this foreign policy concern trumps the free speech interests at stake, even though heightened scrutiny protects those interests? His third point is, I think, his answer: Breyer sees the government's theory here as so far-reaching that it deeply invades First Amendment values. The court perhaps must accept the government's appraisal of the foreign policy interests, but those interests must be weighed against First Amendment costs, and that weighing is the job of the Court. (Breyer emphasizes this role at 15-16.) Here, Breyer says that it just isn't plausible to treat the kind of speech at issue here as "fungible" with direct support for terrorism in the way that, say, cash donations would be. (Dissent at 8-9). Moreover, he says that the government's argument that speech, even about international dispute resolution processes, will potentially enable terrorist organizations to "legitimate" themselves is dangerously sweeping, for any speech that somehow favored a terrorist organization's cause might legitimate it and so the logic of this argument would sweep far into unmistakably protected speech. (Dissent at 10.)

The majority's response to this is that there is indeed a stopping point -- whether the speech in question was or wasn't "coordinated" with the terrorist organization. (Majority opinion at 26.) Breyer disputes this, arguing that almost any speech will be coordinated in some sense, e.g. in the scheduling of the training class sessions. (Dissent at 14.) But the majority undoubtedly agrees that the degree of damage to First Amendment interests remains a matter for the Court to assess.

Does this mean that Breyer rejects the legitimation argument for restricting speech always and everywhere? Not quite. He writes, at 11, that "[i]n short, the justification, put forward simply in abstract terms and without limitation, must always, or it will never, be sufficient. Given the nature of the plaintiffs' activities, 'always' cannot possibly be the First Amendment's answer." This language is pregnant with a possible exception for less-abstract contentions, further hinted at by Breyer at 16: "Finally, I would reemphasize that neither the Government nor the majority points to any specific facts that show that the speech-related activities before us are fungible in some special way or confer some special legitimacy upon the PKK." One way to take these observations is to say that the ultimate difference between the majority and the dissent lies in how far the two sides are prepared to defer to the government's estimate of the severity of risk: the majority, to a considerable extent; the dissent, much less. But if the government made a stronger showing, Justice Breyer too might accept even the legitimation rationale as a basis for restricting speech.

What would a stronger showing be? One possibility would, certainly, be more specific proof of the connection between speech and legitimation for a particular terrorist organization. It's not easy to imagine compelling proof on these lines, however -- partly because legitimation itself is a rather intangible concept, and partly because gathering proof (public opinion polls? scholarly studies?) is likely to be arduous and slow, when the need for government response is presumably sometimes present and acute.

Perhaps a better interpretation, though not one that jumps out from the words Justice Breyer uses, would be that a specific showing is made when the group in question is one that we are at war against. (I suggested this in an earlier post.) The fact of war does not directly prove the special salience of harm from speech that arguably provides "material support," but it does give special reason to believe that any such harm is a grave danger to the United States. Otherwise, the Courts might find themselves either deferring to predictions of danger generally, or looking for proof of specific danger that is unlikely to be available. In war, perhaps, some special extension of government power is legitimate -- some, but not too much.

Humanitarian Law Project and deference to the political branches in foreign affairs -- the majority's view

So what does Humanitarian Law Project say about the degree of deference to be paid to the political branches in deciding whether the law prohibiting material support to designated foreign terrorist organizations can be applied to speech?

Chief Justice Roberts’ opinion for the Court does not begin by invoking deference. Instead, at pages 24-28, he examines in some details the reasons why, in his judgment, the statute’s view that at least some forms of speech amount to material support is correct. One can disagree with his analysis, but as presented it is indeed his (and the majority’s) analysis. It’s of some importance, I think, that Justice Roberts begins this way.

His next step, however, is to explain why “we do not rely exclusively on our own inferences drawn from the record evidence. We have before us an affidavit stating the Executive Branch’s conclusion on that question,” a conclusion “‘strongly suppor[ting]’ Congress’s findings that all contributions [including nonmonetary contributions] to foreign terrorist organizations further their terrorism…. That evaluation of the facts by the Executive, like Congress’s assessment, is entitled to deference.” (28-29)

But it is important to emphasize that Chief Justice Roberts does not assert that complete deference is called for. “It is vital in this context ‘not to substitute … our own evaluation of evidence for a reasonable evaluation by the Legislative Branch,’” he writes, quoting an earlier decision. Deference is owed not to any evaluation, but to reasonable ones. Roberts writes that “[w]e are one with the dissent that the Government’s ‘authority and expertise in these matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.’” (29) And later he declares that, “At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization – even seemingly benign support – bolsters the terrorist activities of that organization. That judgment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it.” (31) This too is the language of measured rather than complete deference.

What, concretely, does all this mean? For Chief Justice Roberts, an important part of the answer seems to be “that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess. The dissent slights these real constraints in demanding hard proof – with ‘detail,’ ‘specific facts,’ and ‘specific evidence’ – that plaintiffs’ proposed activities will support terrorist attacks.” (29) Here, I think, we are at the crux of the matter: the government’s judgments emphasize potential risks not specifically demonstrated, and the question is what to do about these possibilities.

This is the problem of the one-percent doctrine (though I am not saying that the Supreme Court majority embraced that extreme idea): what should we do when we’re not sure? The one-percent doctrine stated that we would treat essentially every risk as equivalent to certainty. As I’ve written in a previous post, that idea didn’t really make sense even in command decisionmaking. Nor would it make sense in law, where a great deal of effort has gone into trying to fashion standards for decisions about the meaning of uncertain evidence.

Broadly speaking, the First Amendment response to uncertainty has been that when we regulate speech because of its content we must have strong reason to believe that the regulation is called for. The majority here makes clear that it considers the material support statute, as applied to speech, to be a regulation based on content, because not all speech is prohibited, only that speech to terrorist groups “that imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’ (22).

But what if the “speech” in question is actually expressed via conduct – such as the speech involved in burning one’s draft card? A 1960s case about draft-card burning approved a less-demanding standard of review than “pure speech” cases require. Here, the majority rejects the plaintiffs’ argument that the statute regulates “pure political speech” – on the ground that completely pure speech, speech uttered independently of any terrorist organization, is not subject to the statute (20). But even if we think of speech that provides material support to terrorist organizations as “conduct” of a sort, the majority emphasizes that “the conduct triggering coverage under the statute consists of communicating a message.” (23) On that basis, the Court appears to conclude that “‘we must [apply] a more demanding standard” of scrutiny – though the Court never actually specifies what that standard is. Justice Breyer in dissent spends some time on the question of just how demanding a standard should be employed, but ultimately concludes that “I doubt that the statute, as the Government would interpret it, can survive any reasonably applicable First Amendment standard.” (Dissent at 6-7)

We are dealing, then, with a heightened-scrutiny context – in other words, one where the benefit of the doubt must be given to the speaker. It appears that the Supreme Court is unanimous on this score. (A partial qualification: the Court notes an argument by the government that “speech coordinated with foreign terrorist organizations” is like “speech effecting a crime, like the words that constitute a conspiracy.” 22 n.5. This argument could mean that such speech “triggers no First Amendment scrutiny at all.” Justice Breyer, in dissent, emphatically declares that “[n]ot even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.” (Dissent at 5.) The Court doesn’t express any attraction for the Government’s proposition, but also does not reject it on the merits; it declines to “consider any such argument because the Government does not develop it.” Id.)

But how much benefit, of how much doubt? In my next post on this case, I’ll take up the dissent’s answer to this question.