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Photographer: Joe Raedle/Newsmakers

Courts Blur Line Between Violent Speech and Crime

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Create a pro-Islamic State music video and post it on a known IS website and you could find yourself convicted of a crime, material support for terrorism. But according to a federal appellate decision issued last week, a music video featuring guns and violence can’t be considered in criminal sentencing or else it would violate your free-speech rights.

What’s the difference between cultural advocacy of terror and cultural glorification of violence? The legal answer lies in the arcana of material support for terrorism as interpreted by the Supreme Court. But the deeper answer lies in our fractured thinking about the First Amendment. When it comes to contemporary gun violence, we distinguish action from artistic ideas. But when it comes to terrorism, we blur the differences -- for better or worse.

Start with Friday’s opinion issued by the U.S. Court of Appeals for the First Circuit. It involved a Puerto Rican singer named Neftalí Alvarez-Núñez who was caught with a machine pistol and a bottle of Percocet. He was convicted on gun and drug charges.

At sentencing, the government argued that he deserved an unusually stiff sentence because of music and videos he made as a member of the duo "Pacho y Cirilo." The group had apparently achieved some notoriety in the Juana Matos Public Housing Project where the defendant lived. The government introduced lyrics as well as videos showing rifles and grenade launchers that were said to glorify violence.

Under the U.S. sentencing guidelines, Alvarez-Núñez would have gotten two to three years in prison. But the judge sentenced him to eight years, based in large part on the music and video evidence.

You can understand the judge’s thinking. As a musician of some popularity, Alvarez-Núñez may have been a role model. The judge thought he was committed to a violent lifestyle and was contributing to a culture of violence.

The First Circuit reversed the sentence. In an opinion by Judge Bruce Selya, it pointed out the basic literary-critical mistake of confusing the performer with the performer’s message:

That an actress plays Lady Macbeth … or an artist paints “Judith Beheading Holofernes,” does not, without more, provide any objective evidence of the performer’s motive for committing a crime, of his personal characteristics (beyond his ability to act, sing, or paint, as the case may be), or of any other sentencing factor.

And the court went further. Because the art was irrelevant to the sentence, it held, considering the art as part of the sentence violated the defendant’s First Amendment rights.

Constitutionally speaking, the holding is correct. The intentional fallacy that the author must intend the message that art appears to convey is always seductive. But protecting free expression requires keeping it in mind.

That said, it would also be naïve to think that music or other art that makes violence seem cool is irrelevant to perpetuating violence in the real world. Actions and their meanings swim in a sea of culture from which they can’t be extracted.

By protecting free expression, we aren’t saying that art and ideas don’t matter and don’t affect actions. To the contrary, we’re saying that they matter profoundly -- indeed so much that they need to be protected despite their consequences. That’s why the principle of free speech is an experiment, as Justice Oliver Wendell Holmes famously put it.

Why is advocating terrorism different? For one thing, the Supreme Court has interpreted the federal statute prohibiting material support of terror to extend to otherwise protected speech that advances the interests of terrorist groups.

In the landmark 2010 decision Holder v. Humanitarian Law Project, the court held 6 to 3 that speech advocating terrorism was not protected by the First Amendment if it was made in coordination with a terror group designated by the executive branch. That means that if on my own I made and posted a video glorifying violent jihad, I couldn’t be arrested or punished. But if I spoke in coordination with an existing terror group, that would not be protected speech.

That leaves the difficult question of what counts as coordination. In 2013, the First Circuit upheld the material-support conviction of Tarek Mehanna, who had translated some of Osama bin Laden’s speeches into English and uploaded them to websites associated with al-Qaeda.

In an opinion by Selya -- the very same judge who wrote the music video opinion last week -- the court said that it was fine for the jury to decide whether the defendant had acted in coordination with al-Qaeda.

Then the First Circuit pulled a fast one. It pointed out that the jury had heard evidence that Mehanna made an unsuccessful trip to Yemen, possibly to try and join al-Qaeda. Because Mehanna’s translation activities were offered to the jury only as a possible alternative way that the defendant had coordinated with al-Qaeda, the court said it would not consider whether they would have been sufficient on their own to uphold his conviction. Mehanna got 17 years.

The bottom line is that this logic is inconsistent with the music video case. That’s mostly the Supreme Court’s fault: Coordination is thin reed on which to hang the criminalization of what would otherwise be free speech. But it’s also the fault of lower courts like the First Circuit, which treat the advocacy of terrorism as different from other kinds of advocacy. The First Circuit should’ve analyzed whether Mehanna’s translation activities counted as coordination. But it didn’t -- because it thinks terror is different.

Glorifying terrorism affects people’s minds the same as the glorification of all other violence. The same standard should apply. Either we protect the advocacy of ideas, or we don’t. All ideas should be treated the same.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net