41 research outputs found
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Candides and Cassandras: Technology and Free Speech on the Roberts Court
Terrorism and Associations
The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these problems, the 2010 decision in Holder v. Humanitarian Law Project, the majority largely avoided the hard questions by simply asserting that 18 U.S.C. § 2339B, the federal statute forbidding the provision of material support to foreign terrorist organizations, does not directly burden either the freedom of speech or freedom of association. Lower courts have performed even more poorly, generally rejecting powerful speech and association claims with bare assertions that “there is no First Amendment right...to support terrorists.”This article has taken as its major goal identifying and analyzing the First Amendment issues raised by the domestic War on Terror, focusing especially on the role of freedom of association in this context. Freedom of association has historically been a critical and basic First Amendment right, central to the process of democratic self-governance that the First Amendment protects. The right of association is also deeply implicated in many domestic terrorism prosecutions, since the essence of those prosecutions is an act of association, often combined with speech. Finally, the judiciary’s bare assertions that “material support” or financial contributions do not constitute association cannot be sustained given both first principles and well-developed law outside the context of terrorism. In short, in this area the courts have failed in their basic job of honestly engaging with the law.Ultimately, however, I conclude here that there does exist a clear, textually and historically justifiable basis for limiting constitutional protections for terrorist and other violent groups. The principle derives from the textual roots of the freedom of association, which lies in the Assembly Clause of the First Amendment. The Assembly Clause, unlike the Free Speech Clause, explicitly protects only a right “peaceably to assemble,” and so excludes violent groups. This simple principle, completely missed by the courts, serves to reconcile most terrorism prosecutions with the First Amendment. It cannot, of course, resolve all issues, especially when a prosecution is based primarily on speech not association, but it does much of the work. There also remain some difficult and complicated issues of definition and implementation, on which I provide some thoughts. But the basic argument advanced here is quite simple: the freedoms of association and assembly protect only peaceable association and assembly; and terrorists are not peaceable
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The Test that Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence
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Religious Associations:Â Hosanna-Tabor and the Instrumental Value of Religious Groups
In its 2012 decision in Hosanna-Tabor Evangelical Church & Sch. V. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a “ministerial exception” to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government’s argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was “untenable,” and indeed “remarkable,” because the very existence of the Religion Clauses indicated that religious groups must be treated differently from secular groups. It also rejected the view that its groundbreaking decision in Employment Division v. Smith, which interpreted the Free Exercise Clause extremely narrowly, precluded reliance on the Religion Clauses here, curtly distinguishing Smith on the grounds that it did not involve “government interference with an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor thus appears to stand for the propositions that religious groups are different from secular groups for constitutional purposes and entitled to extra constitutional protections, and further, that religious institutions such as churches possess broader Free Exercise rights than do individuals. In this article, I argue both these propositions are indefensible in light of the text, history, and purposes of the Religion Clauses. I further argue that granting religious institutions special constitutional rights raises some very difficult, ultimately irresolvable boundary problems regarding the scope of the ministerial exception.Ultimately, I conclude that a much better analytic course for the Court to have followed in Hosanna-Tabor would have been to rely on the freedoms of association and Assembly protected by the First Amendment, which the Court so casually rejected. The effect of relying on Assembly and association would be to grant all groups whose activities are relevant to democratic politics a right of autonomy, including a right to select its members and leaders. Religious groups would certainly qualify for such a right (thus affirming the result in Hosanna-Tabor), but so would many secular groups on the same terms. I discuss the ways in which this vision of associational rights fits well with the overall structure of the First Amendment, and with the instrumental role that religious groups (as opposed to individuals) play in our society. Relying on Assembly and association also avoids the boundary problems raised by the ministerial exception, and defuses the tension with free-speech doctrine created by the Court’s preferential treatment of religious groups in Hosanna-Tabor. I conclude by exploring the ways in which the existence of the Religion Clauses may be relevant to religious groups’ Assembly/associational rights, even if they are not the source of those rights
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Free Speech Without Democracy
In the United States, First Amendment protections for free speech are deeply associated with democracy. The dominant view in the Supreme Court and among commentators is that the primary (albeit not necessarily the only) reason we protect free speech is because of its essential role in advancing democratic self-governance. What are the implications of the democratic self-governance theory for free-speech protections outside the United States, in particular in nondemocratic countries? If we assume that the role of free speech is to advance democratic politics, then presumably non-democratic countries would have no reason to protect or tolerate speech. After all, if one rejects western-style liberal democracy, presumably one also rejects the subsidiary rules that undergird that system of government. The truth, however, is more complex. First of all, the vast majority of constitutions in the world grant at least some level of written protection for free speech, even though many of these constitutions are in countries which do not even purport to be free, multiparty democracies. Of course, many of these constitutional protections are shams; but it is simply not the case that no autocratic regimes permit free speech. The purpose of this paper is to explore how and why that might be so, and to consider whether the answers to these questions might have implications for domestic law.I begin by surveying the scope of global protections for free speech in written constitutions, and then examining in some detail three case studies of autocratic countries which have provided a degree of room for free speech: modern Communist China, the Soviet Union during the Glasnost era under Mikhail Gorbachev, and modern Qatar. In each case, I demonstrate that the regime provides meaningful protections for free speech, albeit with clear limits. I also argue that in each of these cases, the leadership has absolutely no interest in advancing democracy or surrendering their monopoly on power. Yet even without democracy, they perceive that permitting some degree of free speech advances their interests and the interests of their citizens and nations.Based on my case studies, I identify three distinct reasons why autocratic leaders might have an interest in permitting some freedom of speech by citizens. The first, and most significant, is internal control. In any large, bureaucratic system, central leadership often faces great difficulty in getting local officials to advance central policies and follow central leadership. Citizens can play an important role in identifying, and publicizing, corruption and lawlessness, as well as violations of central policy, at the local level. Second, free speech can act as a safety valve. Permitting some degree of free speech can, therefore, alleviate pressures for political change. Third, free speech as a form of citizen participation in government can lend legitimacy to a government, even without the legitimacy conferred by popular consent through elections. I also explore the countervailing factors – notably the desire for rulers to maintain their power – which result in clear limits on what sorts of speech will be tolerated in autocracies.I close by considering whether these alternative justifications for protecting free speech have any implications for speech within the United States. I argue they do, for this reason: even though our system of government is at its base democratic, actual citizen interactions with the government often are not experienced this way. This means that in addition to protecting democratic government, free speech also plays some of the same roles in the U.S. as in autocracies: permitting oversight over the bureaucracy, providing a safety valve, and granting legitimacy to high officials. I close by considering some doctrinal implications of this insight