This Essay, by Owen Fiss, explores the curtailment of freedom of speech in the name of fighting terrorism. Specifically, Fiss examines the Supreme Court’s decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.
The World We Live in
Volume 83, No. 2, Winter 2011