ABSTRACT
In this chapter, the authors discuss in some detail why the court’s free speech analysis in the Humanitarian Law Project case is ill conceived, and identify some potentially significant negative consequences of that analysis for free speech law in the United States. They suggest how the court should have analyzed the free speech claims in that case. The authors explain it was ‘the kind of activity to which the First Amendment ordinarily offers’, at most, only modest protection. They also discuss the free speech interests implicated by the ban on the activity in which the plaintiffs wanted to engage are fairly modest. The Supreme Court’s decision in Holder v. Humanitarian Law Project is a prime example of the old adage that hard cases make bad law. The court’s acceptance of the government’s weak factual showing is, unfortunately, not the only way that the reasoning of Humanitarian Law Project makes bad law.
