[EL] “Politics and Terrorism: What Happens When Money is Speech?”

[Paul Sherman]

Professor Hellman’s essay is provocative, but I can’t agree with her reading of Holder v. Humanitarian Law Project.  The Court in Holder did not conclude, as Hellman argues, that there “was no First Amendment issue raised” by the federal prohibition on providing “material support” to terrorist groups in the form of expert legal advice.  Rather, the Court quite clearly held that the law imposed a burden on speech and must, therefore, be reviewed with heightened scrutiny:

“The Government is wrong that the only thing actually at issue in this litigation is conduct, and therefore wrong to argue that O'Brien provides the correct standard of review. O'Brien does not provide the applicable standard for reviewing a content-based regulation of speech, and § 2339B regulates speech on the basis of its content.” (internal citations omitted).

Of course, the Court ultimately upheld § 2339B, but only after engaging in First Amendment analysis.  One can disagree with the conclusion they reached, as the dissent does, but they certainly purported to be reviewing the law as a content-based restriction on speech.  That seems to be in harmony with Buckley’s holding on contribution limits.  Indeed, if anything, Holder’s conclusion that cases like Texas v. Johnson provide the appropriate standard of review suggests that Buckley gave insufficient protection to political contributions.

Best,
Paul

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, October 30, 2012 6:26 PM
To: law-election at UCI.edu
Subject: [EL] more news 10/30/12

“Politics and Terrorism: What Happens When Money is Speech?”<http://electionlawblog.org/?p=42769>
Posted on October 30, 2012 1:43 pm<http://electionlawblog.org/?p=42769> by Rick Hasen<http://electionlawblog.org/?author=3>

Deborah Hellman writes<http://www.virginialawreview.org/inbrief.php?s=inbrief&p=2012/10/30/post_3> for Virginia Law Review‘s “In Brief.”
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Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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