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

[Rick Hasen]

Deborah Hellman, who is not on the list (but is copied on this message), 
sends along this reply:

In reply to the post by Paul Sherman, let me clarify my argument. You 
are surely right that the did conclude that providing expert legal 
advice was “speech” under the First Amendment.  What I was stressing is 
that the Court did not consider whether giving money to terrorist groups 
was also speech.  The 9^th Circuit opinion did so and strained rather a 
lot to make its decision consistent with Buckley, and that issue was not 
challenged on appeal so perhaps it was unfair for me to read anything 
into that.  In response, let me make two points.  First, In section V.A. 
of the Supreme Court opinion in HLP, the court says “Rather, Congress 
has prohibited "material support," which most often does not take the 
form of speech at all.”  What “material support” most often does not 
take the form of speech?  What could that be, other than giving money?  
So the Court seems to proceed on the assumption that giving money to 
terrorist organizations is not “speech.”  Second, the plaintiffs 
decision to pick out legal advice, etc. rather than giving money as the 
basis for the appeal at the S.Ct. reflects, I think, a well-founded 
intuition that this activity is much more clearly “speech.”


On 10/31/12 7:01 AM, Paul Sherman wrote:
>
> 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.”
>
> Share 
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> -- 
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu  <mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
> Now available: The Voting Wars:http://amzn.to/y22ZTv
>   

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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