Balkinization  

Monday, June 21, 2010

The Supreme Court Calls for Less Speech

Mark Graber

Cross posted at Quoth the Raven

The Supreme Court has decided that making speech cheaper increases investment in violence. Chief Justice Roberts in Holder v. Humanitarian Law Project claimed that non-profit groups that instructed terrorist organizations on how to pursue goals peacefully enabled those organizations to divert more of their resources to terrorist activities. This is a remarkable perversion of traditional free speech doctrine. Conventional First Amendment wisdom treats speech as a preferred substitute for violence. Policies that make speech cheaper (i.e., not punishing speakers) supposedly make individuals and groups more likely to speak than maim. The Roberts Court apparently disagrees. A 6-3 majority thinks human rights organizations that provide material assistance to humanitarian activities sponsored by terrorist organizations permit those terrorists to shift more of their scarce resources into murderous activities. Apparently the justices believe terrorists organizations operate on fixed budgetary constraints. Fifty percent for bombs; fifty percent to feed the starving. If this view is correct, then by providing a terrorist organization with material to make bombs, I would cause that group to shift more of their existing budget into humanitarian activities.

Consider whether Humanitarian Law Project permits Congress to ban organizations from handing out Shakespeare plays to teenagers. Most teenagers have a budget. They spent a certain percentage of their budget on innocent activities and a certain percentage of their money on less than innocent activities. If Chief Justice Roberts is correct, giving Shakespeare to troubled teenagers is likely to cause teenagers to divert money that might have gone to innocent activities (buying books) to less than innocent activities (buying drugs). At least Congress could make this decision. If Congress has a compelling interest in stopping the drug trade, then Congress has the power to prohibit people from giving books to teenagers. Such as the logic of Humanitarian Law Project.

Traditional free speech doctrine encourages efforts to substitute speech for violence. Just we think giving teenagers Shakespeare might encourage them to spend more time reading classic literature, so making speech cheap is more likely to cause organizations to pursue more legitimate means of achieving their goals. Congress until this week could regulate speech only in cases of incitement to imminent lawless violence. When terrorists are involved, advocacy of imminent lawful behavior is also beyond the pale of constitutional protection.

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