As we enter the last phase of an election cycle marked by a huge and growing amount of money in politics, it is time to confront a central tension in the Supreme Court’s interpretation of the First Amendment. In the well-known 2010 case, Citizens United v. Federal Election Commission, the Court reaffirmed that giving and spending money in connection with elections constitute protected “speech” under the First Amendment and thus that any restrictions on these activities can only survive if they are narrowly tailored to serving a compelling governmental interest. A bare five months later, another important case of the same term, Holder v. Humanitarian Law Project,considered whether the government may ban the provision of “material support” to terrorist groups and held that it may. While some “material support” – expert advice and training — raised First Amendment concerns, the Court did not consider whether giving money to terrorists was protected “speech” under the First Amendment but implied that it was not. Thus, a contradiction resides in the heart of the Court’s interpretation of the First Amendment.Citizens United tells us that giving money to Group X is “speech” under the First Amendment, while Humanitarian Law Project tells us that giving money to Group Y is not “speech” under the First Amendment. As we reflect on this election season in which lots of “material support” to parties and candidates is being passed around, this is an important contradiction to resolve.
Sept 3, 2013
98 Va. L. Rev. Online 71