Does Crying Terrorism Trump Free Speech?

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While much of the country’s focus has been on the Supreme Court’s decision not to review any marriage equality cases and the sweeping social change implicit in such a move, little has been said about the Supreme Court’s refusal to hear the appeal of Tarek Mehanna and the potential ramifications it has for US society. The Supreme Court’s decision to not decide the issue of marriage equality has had a domino effect of progress for LGBTQ equality and human rights. But the Mehanna case has disturbing implications for civil liberties. With its refusal to hear Mehanna’s appeal, the Supreme Court is helping to cement a reactionary reinterpretation of the First Amendment that dramatically curtails freedom of speech and gives the government yet another weapon with which to persecute Muslims and intimidate those whose political views it deems unacceptable.

Mehanna’s Conviction for Material Support to Terrorism

Mehanna is an American-born pharmacist who was convicted of lying to the FBI, providing material support to terrorism, conspiracy to provide material support to terrorism, and conspiracy to commit murder in a foreign country. When one hears the phrase “material support to terrorism,” it most likely conjures up the idea of giving money to finance a group’s violent attacks, or providing terrorists with weapons or materials with which to build bombs. However, the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 changed the definition of material support to include “training,” “service” and “personnel.” The Patriot Act amended the statute to include “expert advice or assistance.”

Mehanna’s material support for terrorism was not support for bomb building. His crimes included translating texts, subtitling videos, writing a poem and discussing his political and religious views online and in person. These actions constituted material support in the view of the US government – not because they could be directly tied to the death of anyone, but because they were “coordinated advocacy” for al-Qaeda.

Prior Supreme Court Cases on Political Speech

It would seem that the First Amendment should protect such activities. US courts have a notoriously spotty record in protecting the First Amendment rights of dissidents. The Supreme Court upheld the use of the Espionage Act to criminally prosecute socialists, anarchists and pacifists for opposing US participation in World War I. The high court refused to hear an appeal from the Socialist Workers Party after members were convicted for their political beliefs under the Smith Act. The court had a mixed record in the cases of Communist Party members convicted under the Smith Act – upholding their convictions in some cases and overturning them in others. Nevertheless, the court’s past rulings should have provided protection to someone like Mehanna.

The court’s most sweeping ruling upholding free speech was in Brandenburg v. Ohio, which is still the law. The court overturned Ohio’s criminal syndicalism statute after Ku Klux Klan member Clarence Brandenburg was convicted. Brandenburg had the peculiar impression that the US Congress, president and Supreme Court were colluding to “suppress the white, Caucasian race.” In a speech to his fellow Klansmen, Brandenburg stated that unless this collusion ceased, the Klan would have to take “revengeance” [sic] against the government.

After parts of this speech were aired on a local news broadcast, Brandenburg was convicted of criminal syndicalism, that is, the teaching or advocacy of using unlawful methods to achieve political, social or economic change (i.e. revolution). The court ruled that the First Amendment protected political speech that advocated violence or revolution in the abstract, and that only speech intended to incite imminent lawless action that was likely to succeed could be criminalized. While this ruling might seem self-evident today, the importance of this decision and its departure from precedent cannot be understated, as the court had upheld the constitutionality of the criminal syndicalism statutes and the similar federal law known as the Smith Act.

Even before the court rejected the notion of “criminal syndicalism,” it still issued some rulings that can be read as protecting speech similar to Mehanna’s. Much like Brandenburg, Dirk De Jonge was convicted under Oregon’s criminal syndicalism statute. At the time, Portland was in the midst of a labor rebellion, with striking longshoremen met with heavy police repression, including raiding workers’ homes and halls and shooting strikers. To protest the repression of the strike, the Communist Party organized a meeting. De Jonge, a party member, addressed the audience on the subject of the Portland city jail conditions and was arrested and convicted of criminal syndicalism.

The state presented communist literature advocating revolution. It conceded that such literature was not at the meeting and that De Jonge made no calls for revolution from the podium. However, since De Jonge gave a speech at a Communist Party-organized event, the state argued that he had “assisted in conduct” of the Communist Party and since the party advocated criminal syndicalism, he too was guilty of criminal syndicalism. The court would have none of this. While in this pre-Brandenburg decision, it held that states had a right to criminalize the teaching or advocacy of revolution, the court still ruled in favor of De Jonge. Even if the party engaged in criminal syndicalism, mere association with the Communist Party could not criminalize giving a speech on a “lawful” topic at a peaceful meeting.

In 1961, the court issued two opinions on the same day that would be the only decisions in which they dealt with the Smith Act’s “membership clause,” making it illegal to be a member of the Communist Party. (1) Upholding the conviction of party member Julius Scales and reversing the conviction of party member John Noto, the court ruled that the right to free association permitted Americans to freely join an organization with both lawful and unlawful aims. Such membership could only constitute a criminal act if the individual joined the group with the intent to further its illegal goals. If an individual joined a group with the intent to further its lawful goals, his or her membership was constitutionally protected freedom of association. (2) As the court would say 20 years later in NAACP v. Clairborne Hardware Co., the Scales and Noto cases meant that “for liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.”

Holder v. Humanitarian Law Project

All of this, however, changed when the Supreme Court upheld the material support for terrorism statute’s prohibition on expert advice and assistance, training, service and personnel as constitutional in Holder v. Humanitarian Law Project. The court dealt with two claims. The first involved US citizens and non-governmental organizations who (prior to the AEDPA) had been working with the Kurdistan Workers Party (PKK), a designated foreign terrorist organization (FTO), on political and humanitarian activities. These activities consisted of nonviolent conflict resolution training and “political advocacy on behalf of Kurds who live in Turkey.”

They were joined by individuals and groups who wished to help the Liberation Tigers of Tamil Eelam (LTTE), also a FTO, to petition for tsunami relief. (At the time of the 2004 tsunami, the LTTE was in de facto control of parts of Sri Lanka.) They also provided legal advice to the LTTE in its negotiations with the Sri Lankan government to end the country’s civil war, and engaged in political advocacy “on behalf of the Tamils living in Sri Lanka.” No one disputed that although they were FTOs, both the PKK and LTTE engaged in humanitarian and political activities, and that the plaintiffs only wished to assist them in what would otherwise be lawful activities.

The court’s prior cases had protected even speech that advocates violence (which the plaintiffs were not engaging in). And the court had ruled that freedom of association protected association with organizations that had both lawful and unlawful aims so long as the individual did not intend to further their unlawful goals. Thus, it seemed like the case law was very clear. Yet, Chief Justice John Roberts, writing for the majority in Humanitarian Law Project, ruled in favor of the government. The court found that association protections were not relevant as no one was prohibiting association – just material support. The court said that helping FTOs with political and humanitarian activities could free up resources for unlawful activities, and that the issue was fundamentally not a First Amendment one, but a political disagreement between the plaintiffs and Congress over how best to combat terrorism.

The decision was roundly condemned for the effects it would have on the work of humanitarian groups. Former President Jimmy Carter expressed concern that the AEDPA criminalized some of the work the Carter Center does, including peace negotiations and democracy training, since such work often entails coming in contact with FTOs. But there was another equally troubling aspect. The court found the plaintiffs’ desire to participate in political advocacy to be too vague to rule on, but laid out a framework anyway of “coordinated advocacy” and “independent advocacy” for determining when speech is and is not protected. Henceforth, independent advocacy is always protected under the First Amendment (assuming it is not incitement to imminent lawless action), whereas advocacy coordinated with or at the direction of a FTO is not protected.

Humanitarian Law Project and Mehanna

This is how Mehanna came to be convicted of a crime for translating documents. While Mehanna’s lawyers argued that the incitement standard was applicable to Mehanna’s case, the prosecution disagreed. It insisted that in light of Humanitarian Law Project, the standard for judging material support for terrorism was not whether the speech was intentional incitement to imminent lawless action that was likely to succeed, but whether it was coordinated or independent advocacy. The district court judge rejected the defense’s proposed jury instructions on the First Amendment’s protections of free speech and instead instructed the jury that convicted Mehanna as follows:

You need not worry about the scope or effect of the guarantee of free speech contained in the First Amendment to our Constitution. According to the Supreme Court, this statute already accommodates that guarantee by punishing only conduct that is done in coordination with or at the direction of a foreign terrorist organization.

Put another way, activity that is proven to be the furnishing of material support or resources to a designated foreign terrorist organization under the statute is not activity that is protected by the First Amendment; on the other hand, as I’ve said, independent advocacy on behalf of the organization, not done at its direction or in coordination with it, is not a violation of the statute.

Such a standard is bizarre because it means that the same speech, with the same effect, was First Amendment protected speech in one context and material support for terrorism in another. Or, as the prosecution told the jury, “it’s not illegal to watch something on the television. It is illegal, however, to watch something in order to cultivate your desire, your ideology.” Groups that had opposed the AEDPA’s prohibition on speech-related prohibitions, including the Center for Constitutional Rights (which was co-counsel in Humanitarian Law Project) and the American Civil Liberties Union, argued that the judge’s instructions not only violated past Supreme Court precedent like Bradenburg and Scales, but even under the court’s reasoning in Humanitarian Law Project, Mehanna’s speech was still protected. These arguments are based on Humanitarian Law Project’s stipulation that its holding was very narrow and applied only to the types of activities the case dealt with, that is providing direct face-to-face services (training in nonviolent conflict resolution etc.) not speech like Mehanna’s, which was purely political and religious in nature and carried out with no direct contact with any FTO. Nevertheless, the First Circuit Court of Appeals affirmed Mehanna’s conviction and now the Supreme Court has refused to hear to his case.

Mehanna’s Political Speech

Mehanna made his political views clear during a sentencing statement that went viral after it was published on Salon by Glenn Greenwald. Mehanna explained that he viewed the Russian war in Chechnya, the Israeli occupation of Palestine and the US wars in Iraq and Afghanistan as wars against Muslims. As such, he believed that Muslims had a right to defend themselves against their oppressors, just as American colonists resisted the British or the African National Congress resisted the apartheid South African regime. He even went so far as to describe the actions of the American minutemen at the Battle of Concord, saying, “There’s an Arabic word to describe what those Minutemen did that day. That word is: JIHAD, and this is what my trial was about.” He made clear that he disapproved of killing civilians, including US civilians, but supported the right to resist an occupying army.

These views may be unpopular, but criminalizing such ideas would result in essentially the return of criminal syndicalism statutes. While Mehanna’s conviction does not go that far, it is certainly a step in a very dangerous direction. A judge instructed a jury to ignore the First Amendment and allowed them to convict an individual based on speech alone. (3) Mehanna never had direct contact with al-Qaeda, but because he translated documents that were published on a website of debatable connection with the group or that al-Qaeda members could potentially read, his act of translating publicly available religious and political information became a crime. Even with the charges that dealt with items other than Mehanna’s direct speech, Mehanna’s First Amendment protected views were used as evidence. By granting the prosecution’s instruction about coordinated versus independent advocacy, the district court essentially decided that whenever the government cries “terrorism,” the First Amendment can be suspended. Through its silence, the Supreme Court has de facto legitimized this.

Branding Speech as “Terrorism”

While it is important not to overstate the case, it is also important not to underestimate the effects of the material support law. It has been used by the FBI to raid the homes of antiwar activists, and by the State Department to threaten Americans participating in the Gaza Freedom Flotilla. In the 1980s, the FBI conducted an illegal investigation into groups opposed to US military intervention in El Salvador for potential violations of material support for terrorism prohibitions (no evidence was found, but the laws have become significantly less civil libertarian since then). Even the designation of who is or is not a terrorist is inherently political. Both the FMLN and the African National Congress, which are now the democratically elected governments in both El Salvador and South Africa, respectively, were considered terrorist organizations in the 1980s. During this same time, it was legal for private individuals to give aid to the Contras, a group that sought to overthrow the democratically elected government of Nicaragua and had a known history of atrocities. Until the US Senate amended its extradition treaty with the United Kingdom in 1986, US courts frequently blocked the extradition of Irish Republican Army members for alleged acts of violence because the US-UK extradition treaty excluded politically motivated crimes. But the United States refused to extend the same reasoning to members of the Palestine Liberation Organization.

The US government has for nearly a hundred years sought out tools to crush dissent – the Espionage Act, COINTELPRO, the Smith Act, state criminal syndicalism statutes, and the infiltration and surveillance of peaceful groups. The selective branding of speech as “terrorism” is part of this history. With its refusal to hear Mehanna’s appeal, the Supreme Court very well may have given the US government yet another tool with which to trample the free speech rights of US citizens.

Footnotes:

1. Prior opinions dealt with the revolutionary advocacy provisions of the Smith Act.

2. That Scales had intent to further the unlawful goals of the Communist Party and Noto did not was based on a somewhat arbitrary distinction that Scales was an active party member, whereas Noto was a passive party member. The court’s affirmance of Scales conviction was fiercely condemned in a dissent by Justice William O. Douglas and the liberal New York Times.

3. To see just how dramatic the judge’s instructions were, compare the instructions given to the jury with the instructions proposed by the defense.