Another Blow to Free Speech

David Cole, 39 Ways to Limit Free Speech.

Seventeen and a half years for translating a document? Granted, it’s an extremist text. Among the “39 ways” it advocates include “Truthfully Ask Allah for Martyrdom,” “Go for Jihad Yourself,” “Giving Shelter to the Mujahedin,” and “Have Enmity Towards the Disbelievers.” (Other “ways to serve,” however, include, “Learn to Swim and Ride Horses,” “Get Physically Fit,” “Stand in Opposition to the Disbelievers,” and “Expose the Hypocrites and Traitors.”) But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document? After all, news organizations and scholars routinely translate and publicize jihadist texts; think, for example, of the many reports about messages from Osama bin Laden.

In 2009, Tarek Mehanna, who has no prior criminal record, was arrested and placed in maximum security confinement on “terrorism” charges. The case against him rested on allegations that as a 21-year old he had traveled with friends to Yemen in 2004 in an unsuccessful search for a jihadist training camp in order to fight in Iraq, and that he had translated several jihadist tracts and videos into English for distribution on the Internet, allegedly to spur readers on to jihad. After a two-month trial, he was convicted of conspiring to provide material support to a terrorist organization. The jury did not specify whether it found him guilty for his aborted trip to Yemen—which resulted in no known contacts with jihadists—or for his translations, so under established law, the conviction cannot stand unless it’s permissible to penalize him for his speech. Mehanna is appealing.

Under traditional (read “pre-9/11”) First Amendment doctrine, Mehanna could not have been convicted even if he had written “39 Ways” himself, unless the government could shoulder the heavy burden of demonstrating that the document was “intended and likely to incite imminent lawless action,” a standard virtually impossible to meet for written texts. In 1969, in Brandenburg v. Ohio, the Supreme Court established that standard in ruling that the First Amendment protected a Ku Klux Klansman who made a speech to a Klan gathering advocating “revengeance” against “niggers” and “Jews.” It did so only after years of experience with federal and state governments using laws prohibiting advocacy of crime as a tool to target political dissidents (anarchists, anti-war protesters, and Communists, to name a few).

But in Mehanna’s case, the government never tried to satisfy that standard. It didn’t show that any violent act was caused by the document or its translation, much less that Mehanna intended to incite imminent criminal conduct and was likely, through the translation, to do so. In fact, it accused Mehanna of no violent act of any kind. Instead, the prosecutor successfully argued that Mehanna’s translation was intended to aid al-Qaeda, by inspiring readers to pursue jihad themselves, and therefore constituted “material support” to a “terrorist organization.”

…

The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher , Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda). It did not even claim that the “39 Ways” was written by al-Qaeda. The prosecution offered plenty of evidence that in Internet chat rooms Mehanna expressed admiration for the group’s ideology, and for Osama bin Laden in particular. But can one provide “material support” to a group with which one has never communicated?

If this had been the rule back then, I could imagine some people wanting to extend the logic to shut down domestic writing about cryptography back in the early 90s. Because that is what some of them were saying — that spreading crypto around was a way to aid the Four Horsemen of the Infocopalypse: drug dealers, pornographers, pedophiles and terrorists. At the time the terrorists were the tail, not the dog, but times change quickly.

(When I grow up, I want to write for the New York Review of Books.)