Nov. 14 (Bloomberg) -- The Supreme Court’s Holder v. Humanitarian Law Project decision, the most important free-speech case in 20 years, has had its first test in the appellate courts, and the results are remarkable. The 2010 case held that peaceful speech in the U.S. can be criminalized if it is “coordinated” to support a foreign terrorist organization named by Congress. Yesterday the U.S. Court of Appeals for the 1st Circuit upheld the conviction of Tarek Mehanna, whose alleged crimes included translating pro-jihadi material from Arabic into English at his desk outside Boston and uploading it to the Web.
As in many landmark free-speech cases, the defendant was both potentially dangerous and extraordinarily hapless. In 2004, when Mehanna was 21 and living with his parents in Sudbury, Massachusetts, he and two friends set out for Yemen in the hopes of finding a training camp and joining the jihad. One bailed after they got off the plane in the United Arab Emirates. Mehanna made it as far as Yemen, where he discovered that there were no terrorist training camps or that no one would tell an obvious American where they were. Mehanna then turned around and went home; his remaining companion eventually made it to Iraq.
Back in the U.S., Mehanna began translating Salafi material, at least some of which was generally sympathetic to jihad against Western occupiers, and uploading it to a website called at-Tibyan, which in Arabic means something like “the Explanation.” Under ordinary circumstances, this activity of translation and uploading would be squarely protected by the First Amendment. The leading Supreme Court case regarding seditious speech is Brandenburg v. Ohio, which held that advocacy of violence can be made criminal only if it is directed to incite imminent lawless action and is also likely to produce such action imminently.
The government arrested Mehanna and charged him with, among other things, conspiracy to provide material support for al-Qaeda. Here things began to go squirrelly. At trial, the government maintained that he had materially supported al-Qaeda both by trying to join the jihad in Yemen and by translating and uploading the material. Mehanna’s lawyers argued that he hadn’t coordinated the translation or the uploading with anybody, much less al-Qaeda. In practice, Mehanna had made no contact with actual terrorists in either Yemen or Sudbury. The lawyers also tried to convince the trial court to charge the jury separately on the trip to Yemen and the translation. But the district judge refused, and Mehanna was convicted on all counts and sentenced to 17 years in prison.
On appeal, Mehanna’s best argument was that the translation was not in any sense coordinated. According to the opinion by Chief Justice John Roberts in the Supreme Court’s Holder case, speech that is otherwise peaceful can count as material support for terror if it is coordinated with the terrorist organization, because terrorist organizations do not have some Chinese wall between their peaceful and violent activities. Speaking peacefully can therefore materially aid their cause -- provided the speech is coordinated.
Mehanna’s lawyers, joined by many civil liberties groups, urged the 1st Circuit to rule on whether translating and uploading material on one’s own could count as coordinated action. If it can, the consequences are breathtaking. There will be no meaningful difference between independent advocacy, protected by the First Amendment, and coordinated advocacy, which can be made a crime. What counted as coordination was therefore all-important as a matter of precedent.
The 1st Circuit, however, ducked the issue. It held that because the failed trip to Yemen to join the jihad was sufficient evidence of conspiracy to materially support terrorism, it didn’t have to decide whether the translation taken on its own would have supported conviction. If the jury believed Mehanna made the trip to Yemen to join the jihad, in other words, that was enough.
This was a classic maneuver of judicial avoidance, already hinted at by the trial judge’s refusal to separate the trip and the translation into different counts. It allowed the appeals court to abdicate what would ordinarily be its constitutional responsibility to make sure that the material support law was being applied consistently with the First Amendment. And like most judicial sleight of hand, it could have gone the other way. The court could conceivably have said that it could not uphold the conviction without reaching the issue of the translation, given the possibility that the jury convicted on the basis of it, not of the trip.
The upshot heralds a new normal in terrorism prosecutions. Speech that might well be protected under the First Amendment can now be included in criminal charges and submitted to the jury alongside other evidence of material support. That is a serious blow to traditional principles of free speech. Although the 1st Circuit did not say so, arguably, coordination could now be inferred just from the nature of the speech and the fact that it was posted online in a forum visited by terrorist-friendly users.
The real culprit here is not the 1st Circuit but the Supreme Court in the Holder decision. By allowing Congress to outlaw nonviolent speech made within the U.S. by U.S. citizens, it drastically reduced the scope of free speech from the traditional Brandenburg standard. The fig leaf of coordination is only meaningful if it creates real protection for independent speech. But the thing about a fig leaf is that it’s hard to make it stay on. In Mehanna, the court’s new doctrine is visible, bare for all the world to see.
(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
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