Hedges v Obama Part II: Freedom of Speech in the Age of Terror

The concept of freedom is one of the most perplexing issues that modern courts are forced to grapple with. Freedom is the glue that holds liberal democracies together; yet, in the age of terror, restrictions on freedom have become more commonplace as a means to preserve that very concept. The idea that we, as a society, choose to renounce an element of our freedom in order to remain free reflects the philosopher Thomas Hobbe’s theory of social contract. In a Hobbesian world, our freedom is exchanged for the protection of a sovereign that protects humanity from returning to its natural state, which Hobbes viewed as a state of war.

One could argue that the idea of the social contract is an accepted aspect of democracy. As a result, the question for courts is not whether the State can infringe on fundamental freedoms, but whether the infringement can be justified as necessary to protect the broader freedoms of its citizens. This issue was addressed by an American court in Hedges v Obama, 12 Civ. 331 (2012). In my first post, I discussed the issue of whether the plaintiffs had standing to pursue their challenge to § 1021 (2)(b) of the National Defence Authorization Act, which grants the military a broad power to detain a person who “substantially supported al Qaeda” or “any associated forces that are engaged in hostilities against the United States.”  The plaintiffs, who are all activists and writers, argued that because the provision had the potential to capture their own activities, it infringed on their rights to free speech and due process, guaranteed by the First and Fifth Amendments of the Constitution. This post will discuss the court’s analysis of the plaintiffs’ First Amendment challenge.

The First Amendment Challenge

The starting point for Justice Forrest’s analysis is found in the recent decision of United States v Alvarez, 132 S. Ct. 3537, 2542 (2012), where the Supreme Court stated that “the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The court in that case held that “content-based restrictions of speech are presumed invalid and that the government bears the burden of showing their constitutionality.”

The main issue for the court to decide in Hedges was “whether § 1021(b)(2), with its undefined breadth capturing both speech and non-speech activities, actually falls within the category of content-based restriction.” To determine whether the content of a law is neutral, the court is required to consider “whether the government has adopted a regulation of speech because of its agreement or disagreement with the message it conveys,” pursuant to the decision in Turner Board. Sys., Inc. v Fed. Commc’ns Comm., 512 U.S. 622, 642 (1994).

In applying this test to the facts, Justice Forrest found that, while covering content is not the sole purpose of § 1021(b)(2), it does have a “content-directed aspect.” This is sufficient to “subject it to strict scrutiny.” Where an infringement on content is found, Turner requires the government to provide a “compelling government interest” to satisfy this “most exacting scrutiny.” Such a purpose is similar to the Canadian law’s requirement that the government must provide a “pressing and substantial objective” to justify a rights infringement under s 1 of the Charter.

The power to detain persons of interest for the purpose of protecting American lives is a compelling government interest. However, the government’s failure to narrowly tailor the provision towards that interest was found to be detrimental. Absent the appropriate procedural safeguards, such as a precise definition of the kinds of actions or words that can lead to a person’s detention, Justice Forrest concluded that the statute failed to pass the Constitutional test as required by Turner.

A Legitimate Sweep?

In defence of the provision, the Government further argued that the plaintiffs’ facial challenge was inappropriate because “the statute has a legitimate sweep.” Or in other words, that the activity capture by the provision is clear and justified. To address this issue, Justice Forrest explains that the “determinative question” for the court to address is whether the provision’s “‘plainly legitimate sweep’ is outweighed by its ‘substantial number of’ unconstitutional applications.”

To answer this question, the court must (1) determine what the regulation actually covers and (2) consider whether it is “‘actually necessary’ to achieve its interests.” On the first point, Justice Forrest emphasized again that the provision is “devoid of the required specificity.” On the second point she concluded that the provision failed to meet the standard because there is no reason that it “could not have a definitional framework that excludes protected conduct.” To drive home this point, Forrest J. noted that § 1021 could be compared to other statutes that are “targeted more directly at criminal conduct associated with terrorist activity,” but which do not encompass “protected speech.”

The Government’s inability to accurately define the scope of § 1021 was fatal to its argument that the law has a legitimate sweep that insulates it from a facial challenge. In what is arguably the most forceful and memorable paragraph of the decision, Justice Forrest takes a moment to comment on what she views as the seriousness of the government’s reluctance to more precisely define its laws:

“If a plaintiff does not know what “substantially support” means, could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have “substantially supported” the Taliban? How about a YouTube video? Where is the line between what the Government would consider “journalistic reporting” and “propaganda”? What does “independent” mean? Would being paid by Al-Jazeera to do a series of articles run afoul of § 1021(b)(2)? Who will make such determinations? Will there be an office established to read articles, watch videos, and evaluate speeches in order to make judgments along a spectrum of where the support is “modest” or “substantial”?”

The tone of this passage may be surprising to some. At least in the Canadian context, once an infringement has been found and the necessary analysis has been conducted to determine whether that infringement can be justified, the discussion usually ends. As a matter of deference towards Parliament, only rarely does the Supreme Court of Canada take the time to comment on the nature of an unconstitutional law. Justice Forrest’s thoughts in this case highlight the very real implications of the Court’s line drawing activity. Most importantly, this passage recognizes that while a law that limits freedom have a legitimate purpose, the government’s failure to properly anticipate the effects of such a law may be problematic.

The Social Contract: The Price We Pay for Freedom

Beyond the potential implications suggested by Justice Forrest, this decision also considers how laws related to freedom reflect a democracy’s evolving relationship with the social contract. As law students, we are taught to understand the technicalities of the law in order to develop the skills that are required to construct effective legal arguments. However, it is important to remember the larger purpose that the law is designed to serve. The farther we stray from that purpose, the easier it may become to justify infringements on fundamental rights and freedoms.

In this case, a Hobbesian view of the social contract may assist in understanding the government’s position. In a nutshell, Hobbes viewed the social contract as a tool to create order out of our natural state, the state of war. Because human beings are rational, they agree to give up their freedom and “live together under common laws.” However, society only becomes possible through the creation of a sovereign that has the authority to enforce those laws and issue punishments against those who break the contract.

As a sovereign state, the American government has the power to pass laws to protect American citizens from the threat of terrorism. While laws such as § 1021 of the NDAA may have the effect of infringing on citizens’ rights, this infringement is consistent with the sovereign’s absolute authority. Once freedom is abdicated, it is entitled to exercise its authority in any manner that is necessary to maintain order. According to Hobbes, this trade-off is worthwhile, as it prevents us from retreating back to our natural state, whereby life is, as the famous statement goes, “poor, nasty, brutish and short.” Thus, no matter how the government chooses to exercise its power, citizens have no justification to rebel because the government is the only thing protecting them from the threat of terrorism.

Justice Forrest clearly rejects this interpretation of the social contract. While her decision acknowledges the seriousness of combating terrorism, the legal test favours the plaintiffs’ position that the pursuit of this objective should not interfere with their freedom of speech. This argument more closely resembles John Locke’s theory of social contract. In contrast to Hobbes, Locke did not view the state of nature as a state of war. Nevertheless, he acknowledged the potential to “devolve into a state of war, in particular, a state of war over property disputes.” To prevent this from happening, humanity voluntarily agrees to give up its freedom and contract together “to form civil government.” Rather than concentrating power in the hands of a sovereign, Locke recognizes that power ultimately belongs to the people who create the government. As a result, when a government ceases to make laws that are in the best interests of its citizens, they have the power to revolt, retrieve their freedom and create a better government.

Locke’s emphasis on the power of revolt had a significant impact on the American Revolution and the country’s founders. For that reason, it is not surprising to find Lockeian threads woven throughout this decision. The plaintiffs’ argument—albeit not a full-scale revolt—is an example of the type of challenge that is designed to thwart a tyrannical government. By protecting fundamental freedoms, the Constitution ensures that the government is only creates laws that are in its citizens’ best interests. The plaintiffs’ challenge in this case utilizes the Constitution to assert their freedom and remind the government of its responsibility to legislate in their best interests.

As with any Constitutional challenge, this decision serves as an important reminder of the responsibility of citizens to hold their government accountable, and vice-versa. Such action is required to maintain the integrity of the social contract and prevent a civil government from descending into an autocratic one. While limitations on freedom form an essential part of this contract, as this decision demonstrates, these limitations must be clearly justified and intelligible to the citizens whose best interests lie at the heart of government decision-making.