The Roberts Court's Free Speech Problem

The Roberts Court’s Free Speech Problem

“In the past, the Supreme Court has ruled that the First Amendment protected the right to advocate even criminal activity, including overthrow of the government, so long as one’s advocacy was not intended or likely to produce an imminent crime. In the Humanitarian Law Project case, however, the Court ruled—for the first time in its history—that speech advocating only lawful, nonviolent activity can be subject to criminal penalty, even where the speakers’ intent is to discourage resort to violence.”

As the Court correctly pointed out, giving what appears on the surface to be harmless aid to a terrorist organization can be used to legitimize the group and ultimately lead to disruption of legitimate diplomatic efforts. These groups are not placed on the terrorism list as a result of random coin toss; they are there because they have a history of interference with legitimate governments, diplomatic efforts, and national laws with the ultimate goal of making those governments susceptible to weakening or attacks. That’s why it’s not legal to help them in any way.

If the only intention is to help them learn how to sit at a table and discuss their differences instead of blowing something up, the proper way to do that is via the State Dept, who is charged with that function. You aren’t allowed to go off on your own diplomatic effort if that effort runs counter to what your legitimate government is trying to do. That’s all this decision reinforced.

The First Amendment is also supposed to protect speech that the government does not like and/or is not in the government’s interest. The very low standard used in this case to justify the curtailment of speech, promoting legal behavior no less, is disturbing.


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