Free Speech In The Post 9 11 Undeclared War Era

This thesis examines judicial rulings on free speech in the post-9/11 undeclared war era through the lens of two Supreme Court cases, Holder v. Humanitarian Law Project (2010) and Snyder v. Phelps (2011). Holder involved a self-identified humanitarian group that wished to provide various forms of aid to groups overseas that had been designated as foreign terrorist organizations. In this case the Supreme Court ruled that these advocacy efforts were not protected under the free speech clause of the First Amendment. Moreover, the material support statute of the Intelligence Reform and Terrorism Prevention Act criminalized this aid. The Court's determination depended in part on the implications for national security of material support connected with verbal expression. Snyder began as a lawsuit filed in response to a Westboro Baptist Church protest at a fallen Marine's funeral. The Supreme Court ruled that the speech of the protestors was protected under the First Amendment, despite the pain it may have inflicted on the family. The majority ruling identified the protest as public speech and hence constitutional. My question revolves around why the outcomes in these contemporaneous cases were different, and whether the national security concerns of this era of undeclared war played a role in these decisions. Two variables were instrumental: first, whether the speech was simply expression, or instead overlapped with teaching, advice, or material aid, and second, whether the speech directly assisted international organizations, or aimed primarily to stir domestic discussion.I examine the facts of each case, as well as how they align with precedents and what played a role in the Justices' jurisprudence. While the interest of national security was certainly present in both cases, it only visibly influenced the Justices' decision-making in the Holder case. Here, speech had the potential to impact foreign relations and national security, especially because speech was understood to include material aid. Both rulings, however, were part of a larger history of reviewing First Amendment free speech protection in times of both declared and undeclared war. The cases indicate both the Justices' enduring commitment to protect free speech, as well as their recognition that government may have a compelling interest to regulate speech at times of international conflict.