Terrorist Advocacy and Exceptional Circumstances

By David S. Han

This Article proceeds as follows. Part I discusses the harmful effects of terrorist advocacy and outlines the present doctrinal treatment of such speech. Part II discusses the issue of exceptional circumstances and highlights the two approaches courts might take to account for them: applying strict scrutiny to the case at hand or broadly reformulating the First Amendment’s doctrinal boundaries. Part III sets forth my central thesis: courts should adhere to case-by-case strict scrutiny analysis, rather than broad doctrinal reformulation, as the initial means of accounting for exceptional circumstances with respect to terrorist advocacy. This approach reflects the vital importance of caution and incrementalism whenever a potential reduction in First Amendment protection is contemplated, as these narrower analyses act as an intermediate stopping point for courts to carefully consider whether any broad doctrinal reformulation is ultimately warranted. Part IV sets forth some thoughts as to how strict scrutiny should be calibrated to serve this role effectively, focusing in particular on the U.S. Supreme Court’s decision in Holder v. Humanitarian Law Project.