Strict in theory, tractable in practice

Despite offering a simplistic principle to guard cherished liberties, strictimissi juris is a seldom used tool in our legal system. Strictissimi juris is a doctrine requiring interpretation in the strictest sense; usually deployed where natural liberties are restrained.

The Doctrine’s Past

Strictissimi juris may have sparse judicial treatment, but its contours have nonetheless been delineated. Unsurprisingly, given the doctrine’s connection with liberties, the cases have revolved around political controversies such as the Second Red Scare and Vietnam War.

The Supreme Court addressed strictissimi juris during the 1960’s, when reviewing a conviction for a Smith Act violation involving registering as a member of the Communist Party. The Court found applying the doctrine to the criminal intent necessary, because otherwise a person who adheres to lawful and constitutionally protected purposes may be punished for unprotected purposes which he does not necessarily share. Ultimately, the Court reversed the conviction for insufficient evidence.

During the Democratic Party’s 1968 National Convention violence erupted amongst anti-war protesters leading to convictions for violations of the Anti-Riot Act.In reviewing these convictions, the Seventh Circuit found strictissimi juris applicable where:

  1. a group activity that is a bifarious undertaking, where both legal and illegal purposes and conduct are involved and
  2. is within the shadow of the First Amendment

When these elements exist a defendant’s criminal intent must be judged strictissimi juris. Such a “[s]pecially meticulous inquiry is justified and required because of the real possibility…of an unfair imputation of the intent or acts of some participants to all others.” For although the defendant may participate in the activity and be sympathetic to its legitimate aims, he did not intend to accomplish them by unlawful means.

The First Circuit utilized the doctrine to reverse a conviction for an anti-Vietnam War advocate. In doing so, the court proclaimed

“The metastatic rules of ordinary conspiracy are at direct variance with the principle of strictissimi juris.

The case stemmed from a series of events that originated with publishing A Call to Resist Illegitimate Authority and ended with four defendants being convicted of conspiracy charges. Strictissimi juris required acquitting one defendant due to insufficient evidence where the defendant’s actions did not extend beyond general anti-war, anti-draft remarks. Evidence that the defendant said he would do “anything” to further opposition to the Vietnam War or that he hoped his words would give men the courage to take active steps in draft resistance were dismissed as insufficient to establish specific intent.

The Second Circuit distilled these authorities to conclude that under strictissimi juris, a court will engage in heightened review to ensure sufficient evidence of the defendant’s own advocacy and participation in the illegal goals of the conspiracy, taking care not to impute the illegal intent of alleged co-conspirators to the actions of the defendants. But declined applying this review where only illegal goals were involved, because strictissimi juris only applies in specially limited circumstances involving a bifarious undertaking.

The Doctrine’s Future

Strictissimi juris is relatively obscure and likely to remain so. Holder v. Humanitarian Law Project contained facts seemingly within the doctrine’s framework with a bifarious undertaking implicating First Amendment rights. Individuals and nonprofits wanted to support the legal objectives of a designated terrorist organization by providing training in peaceful dispute resolution, political advocacy, and contributions. The groups feared prosecution for providing material support to a terrorist organization, however, and sought an injunction. Strictissimi juris would seem to offer these groups protection from criminal liability, because although the terrorist organization had illegal goals and engaged in illegal conduct, the humanitarian groups did not share these illegal goals and would not participate in the illegal conduct. But Congress and the Supreme Court foreclosed this outcome with a statute that did not require specific intent to aid in the illegal conduct and a judicial ruling that the First Amendment was not offended by prohibiting the speech involved in the case.

The future could involve novel applications of the doctrine beyond its political roots. White collar appears to be a fertile ground for strictissimi juris to grow. White collar often involves bifarious undertakings where actors share legal financial goals, but activities to accomplish this include both legal and illegal conduct; plus commercial speech, like political speech, is entitled to First Amendment protection.