The First Amendment's Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine
![handle is hein.journals/harlpolrv6 and id is 147 raw text is: The First Amendment's Borders: The Place of
Holder v. Humanitarian Law Project in First
Amendment Doctrine
David Cole*
In the 1950s and 1960s, when Congress had found the Communist
Party to be engaged in an international conspiracy to overthrow the United
States by force and violence, and when the Ku Klux Klan was terrorizing
black citizens through violent attacks, the Supreme Court repeatedly con-
fronted the question whether the state could criminalize speech or associa-
tion on the ground that it might further such organizations' illegal ends. The
Court equivocated for some time, but ultimately reached a clear answer.
With respect to speech, the Court ruled in Brandenburg v. Ohio that the First
Amendment do[es] not permit a State to forbid or proscribe advocacy of
the use of force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or
produce such action.1 With respect to association, the Court held in Scales
v. United States2 and its progeny that Congress could not punish membership
in the Communist Party absent proof that an individual specifically intended
to further the party's unlawful ends.'
These precedents and principles are the linchpin of the First Amend-
ment's protection of political expression. The lesson of the Court's earliest
First Amendment decisions is that limits on the government's ability to
criminalize speech on the ground that it might lead to harmful conduct are
essential to ensure breathing room for free public discussion on matters of
* Professor, Georgetown Law. I was counsel for Humanitarian Law Project in Holder v.
Humanitarian Law Project, 130 S. Ct. 2705 (2010), and am currently counsel for plaintiffs in
Al Haramain Islamic Found., Inc. v. U.S. Dep't of Treasury, 660 F.3d 1019 (9th Cir. 2011),
both of which are discussed herein. I would like to thank Irv Gornstein, Carl Grossman, Jules
Lobel, Allegra McLeod, Amanda Shanor, Larry Schwartztol, David Super, Richard Taranto,
and Matt Waxman for their feedback on drafts of this article, and members of the Drake and
Georgetown law faculties for their comments at workshop presentations of this paper.
1395 U.S. 444, 447 (1968) (per curiam).
2367 U.S. 203 (1961).
3 In Scales, the Court interpreted a statute criminalizing membership in the Communist
Party to require proof of specific[ ] inten[t] to accomplish [the aims of the organization] by
resort to violence. 367 U.S. at 229 (quoting Noto v. United States, 367 U.S. 290, 299 (1961)).
This principle was subsequently applied to a variety of noncriminal sanctions, including the
denial of a security clearance, United States v. Robel, 389 U.S. 259, 262 (1967) (holding that
the government could not ban Communist Party members from working in defense facilities
absent proof that they had specific intent to further the Party's unlawful ends); state employ-
ment, Keyishian v. Bd. of Regents, 385 U.S. 589, 606 (1967) ([m]ere knowing membership
without a specific intent to further the unlawful aims of an organization is not a constitution-
ally adequate basis for barring Communist Party members from employment in a state uni-
versity system); denial of access to school meeting rooms, Healy v. James, 408 U.S. 169,
188-89 (1972); and civil damages, NAACP v. Claiborne Hardware, Co., 458 U.S. 886, 920
(1982).](ViewImageLocal?handle=hein.journals/harlpolrv6&div=9&collection=&method=preview&ext=.png&size=3)
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The First Amendment's Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine
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