Yesterday’s Supreme Court decision in Holder v. Humanitarian Law Project may have broken new First Amendment ground by upholding a restriction on speech even after applying ‘strict scrutiny’ – the highest level of judicial review – to the law at issue.

Strict scrutiny is usually fatal to government regulation of speech, but it wasn’t this time, as the Supreme Court, by a 6-3 vote, upheld a federal law that criminalizes ‘material support’ – including training and ‘expert advice’ – to groups that have been designated as terrorist organizations. Human rights groups had claimed the law’s vague language would chill and punish benign education projects and speech aimed at defusing the conflicts that lead to terrorism.

‘This is the first time that the Supreme Court has applied strict scrutiny and found a statute to satisfy that strict standard,’ lamented Georgetown University Law Center professor David Cole, who argued against the law before the high court. ‘The Court came to this conclusion without the kind of demanding scrutiny the doctrine requires.’

First Amendment law expert and Volokh Conspiracy blogger Eugene Volokh at first appeared to agree with that analysis yesterday afternoon. But by last night, Volokh had returned to his blog to revise his […]