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Tuesday, December 07, 2010

The Supreme Court's World War II Channel

This month I'll be blogging at least once about a symposium piece I've written examining rules and standards in three recent First Amendment cases: Citizens United, US v. Stevens and Holder v. Humanitarian Law Project (HLP).  But for now I'd like to share an interesting tidbit that I found when reading Citizens United and HLP.  As everyone knows, in Citizens United Justice Stevens took issue with the majority's "glittering generality" that the First Amendment does not allow identity-based restrictions on political speech.  As part of his analysis, he pointed to Tokyo Rose, the (apparently generic) name for English-language Japanese propaganda announcers during World War II, rhetorically suggesting that the majority's analysis would presumably have frowned on restrictions on "her" right to speak based on "her" identity.

Interestingly, a few months later in HLP Chief Justice Roberts also referred to Imperial Japan.  He mocked the dissent's argument that the speech restrictions at issue should be reviewed more stringently because the restricted speech consisted of helping terrorist groups utilize peaceful means of dispute resolution.  He speculated that under the dissent's analysis the Court would have had to allow analogous assistance to the Imperial Japanese government during World War II.

Coincidence?  Maybe.  But a very quick search reveals no similar analogies in Court opinions over the past five years.  It's also probably relevant (or at least "not irrelevant," as we cautious folk like to say) that in HLP Justice Stevens deserted his Citizens United co-dissenters and joined Chief Justice Roberts' majority.   This is not to say that Justice Stevens was enticed to join the majority in HLP by an analogy to events that he alone on the Court was old enough to have experienced as an adult.  But if Chief Justice Roberts in HLP was going to abandon rigid First Amendment rules and point to some alleged absurdity in applying those rules in that case, he could have done a lot worse, in terms of attracting at least some support from the liberal bloc, than to use the same World War II-era hypothetical Justice Stevens used in Citizens United.  I'll soon be blogging about the merits of the Chief's analysis in HLP, but for now this is one of those nuggets that potentially reveal the human motivations behind the drafting choices the Justices make.

Posted by Bill Araiza on December 7, 2010 at 07:00 AM in Article Spotlight, Constitutional thoughts, First Amendment, Judicial Process | Permalink


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