When I saw the headline New Yorker Arrested for Providing Hezbollah TV Channel, my first though was, how ironic that the US government is so worried about protecting TV companies against copyright violations that they would use criminal law to protect Hezbollah’s mouthpiece Al-Manar.
But, it seems, it’s nothing of the sort:
A New York man was arrested yesterday on charges that he conspired to support a terrorist group by providing U.S. residents with access to Hezbollah’s satellite channel, al-Manar.
Javed Iqbal runs HDTV Corp., a Brooklyn-based company registered with the Federal Communications Commission that provides satellite television transmissions to cable operators, private companies, government organizations and individual customers.
The U.S. Treasury Department in March designated al-Manar a “global terrorist entity” and a media arm of the Hezbollah terrorist network. The designation froze al-Manar’s assets in the United States and prohibited any transactions between Americans and al-Manar.
It is always possible that the news story left something out; the government could be alleging perhaps that the retransmissions are sort of front for illegal funding of Hezbollah or even al-Manar. Bans on moving money to groups labeled as terrorist are, in the main, fully within the powers that Congress has given the President. But for present purposes — and mindful that this is the Bush administration we are talking about here — I’m going to take the reported facts at face value and assume that either no money changed hands or only the fair market value for the right to rebroadcast.
There are two obvious questions here: does the statutory regime in fact ban redistribution by a US citizen of a so-called “terrorist” news channel, and even if it does, would such a ban be constitutional.
Let’s start with the statutory question.
According to the press release announcing the designation of al-Manar a “global terrorist entity”, the action is based on Executive Order 13224; al-Manar has also been on the U.S. Department of State added al Manar to the Terrorism Exclusion List since December 2004.
EO 13224 relies for its authority on the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act of 1945, as amended (22 U.S.C. 287c)(UNPA), and section 301 of title 3, United States Code — and on the President’s inherent constitutional powers.
IIEPA is the key statute here, and I’m going to focus on it. The Emergencies act deals with the procedures for declaring and ending emergencies; it doesn’t, if I recall, give the President substantive authority relevant to this issue although I haven’t gone back today to check. The UN Participation Act gives authority to punish violations of UN sanctions set by the Security Council. I don’t know of any sanctions order that could be relevant here, but am happy to be educated if there is one. 3 USC sec. 301 gives the President the power to delegate powers, but doesn’t give any independent statutory authority.
IEEPA gives the President very broad powers to block transactions and freeze assets in the event he declares an emergency requires it. There is, however, a critical and relevant exception in IEEPA, contained in 50 USC sec. 1702:
(b) Exceptions to grant of authority
The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly–
(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 2404 of the Appendix to this title, or under section 2405 of the Appendix to this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18.
The exception to the export ban excludes information relating to nuclear secrets and things which might trigger the espionage statutes. It doesn’t apply to imports at all. So, it’s pretty clear that IEEPA itself does NOT prohibit retransmission of foreign broadcasts, and probably doesn’t even prohibit paying the station a reasonable fee for the right to rebroadcast (as that would be an “indirect” prohibition or regulation).
As a result, at as described in the news article, this prosecution appears to be for conduct which is not in fact in violation of IEEPA, nor of Executive Order 13224 — unless the President has inherent constitutional power to block the importation of foreign speech. [Note that this entire discussion is separate from a different line of cases upholding the government’s right to require that some imported speech (Canadian evironmentalism, cf. Meese v. Keene, 481 U.S. 465 (1987)) be labeled “political propaganda”. That was about labels, not about importation.]
The constitutional question has two parts: First, if the President has any relevant inherent authority to criminalize speech on national security grounds; Second, whether the First Amendment would trump this authority if it even exists (and whether the First Amendment would trump whatever relevant statutory authority Congress might have granted that I might have failed to detect).
I have read a lot of pretty far-out stuff defending the President-as-King theory of the US Constitution, including some that appear to suggest the President could grab any of us off the street, call us enemy combatants, and lock us up in secret military prisons for all eternity and that courts might for some reason lack the jurisdiction, authority, or expertise to object, but I have yet to see anyone serious suggest that the President could create new types of criminal liability that would enforceable in actual courts where the Bill of Rights applies. I could waste a lot of time explaining why this is a ludicrous idea, but it’s really too silly to bother. (See my The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994) and Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) if you want to know about how I approach these issues.)
Suppose, however, that I’m wrong about the statutory regime and Congress has purported to give the President the power to criminalize the importation of a foreign TV show or feed. Does the First Amendment allow that? I think the answer is that it does not, but here one proceeds with a slight degree of caution, as the final answer might depend on the content of the imported speech. At some point there is no question that Congress can criminalize foreign (or even domestic) speech: Imagine, for example, that the speech consisted of a series of targets, and the times that they should be bombed. Re-transmitting that sort of speech would undoubtedly create criminal liability (although the prior restraint problem could be much more complex). I am not as expert as some others in the intricacies of First Amendment law, but the standard answer is that in the absence of incitement to violence on fairly specific targets the speech cannot be criminalized. Thus, for example, “Kill Fred Smith” is a problem; “Death to America” or “Kill the people who oppose our just cause” might not be sufficient to overcome the test set out in Brandenburg v. Ohio, 395 U.S. 444 (1969) and many subsequent cases, depending on the full context.
None of the above seems that poorly understood or controversial; it is all stuff you would expect any federal prosecutor to know. Which really makes me wonder if I’ve missed a statute, or if there’s something else in the indictment.
I’ve written this all rather hurriedly, so I welcome comments and corrections and will update as needed.
First Update: The seller is not a US citizen: Mr. Iqbal is in America on a visa, his lawyer said. If the visa doesn’t include the right to work, and he’s selling access, that could be an immigration violation.
But he hasn’t been charged with immigration violations; according to the NY Sun article you linked to, he’s being charged under the IIEPA –and I don’t see how the feds can get around sec. 1702.
The fact that Iqbal is not a citizen does complicate the (otherwise slam-dunk) first amendment analysis, since it means that he may not be able to assert his own first amendment rights to distribute the material, but would have to rely on his viewers’ first amendment rights to receive it. That gets us into Kleindienst v. Mandel – land, and it’s messy.