Rhetorical Support Is Not “Material Support”

We Americans cherish few rights more than the right to speak our minds. And yet that right often comes under attack. Most recently, the federal government has used laws criminalizing the “material support” of foreign terrorist organizations to prosecute people who hold unpopular political views. Take the case of Tarek Mehanna, a native of Sudbury, Massachusetts.

Almost exactly one year ago, Mehanna was convicted of providing “material support” to al Qaeda. He was later sentenced to over 17 years in prison. In a trial that lasted thirty-five days, the vast majority of the government’s case focused on Mehanna’s views on global politics, war, and religion. He was convicted in large part based on evidence that he translated publicly available al Qaeda propaganda from Arabic to English and tried to persuade others to embrace his extreme views.

Mehanna’s views would shock many Americans. They are offensive and often hateful. At times Mehanna agreed with al Qaeda and parroted its views (at times he also expressly disagreed with the group).

But the right to hold and espouse offensive views is one of our nation’s essential liberties. Just last year, for example, in the case of the Westboro Baptist Church, the Supreme Court upheld the Church’s right to picket and protest the funerals of our soldiers with signs bearing repulsive messages: “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” and “Thank God for IEDs.”

That case is but one in a long line in which the Supreme Court has made clear that even odious political advocacy is protected unless it would incite imminent lawlessness or unless the speaker is an “active member” in a criminal group and intends to support its illegal ends. These are high standards, but they are vital in our democracy to prevent the government from criminalizing thought and speech that it—or even a majority of us—disagrees with. The solution to vile speech is more speech in response, not government prosecution.

In spite of this robust protection for unpopular ideas, the government argued that Mehanna could be convicted for translating al Qaeda propaganda because, in the government’s view, Mehanna knew that al Qaeda would want the materials translated and did the translations to assist the group. The district court incorrectly accepted the government’s expansive theory and took the unusual step of instructing Mehanna’s jury not to “worry about” the First Amendment. The court authorized the jury to punish Mehanna’s political advocacy based on bare “coordination” with al Qaeda, a term that the jury was free to define expansively because the district court did not define it at all. (As Mehanna’s lawyers point out in their appeal of his conviction, the government presented no evidence that Mehanna ever communicated with al Qaeda let alone that he acted at its direction).

The problem boils down to this: the government equated rhetorical support with “material support,” and the district court accepted its view. What makes the government’s theory so dangerous to our freedom of speech is that it threatens to dismantle the barrier that the Supreme Court has erected “between words and deeds, between ideas and conduct.” That barrier prevents the government from censoring speech based solely on its tendency to persuade and, thereby, overturning the most basic precept underlying the Supreme Court’s First Amendment case law: that “[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” It preserves the fragile space necessary to formulate ideas, to persuade others, and to be persuaded by others. When speech spills over into unlawful conduct, the government may, of course, act. But until then, speech is protected.

Mehanna’s case illustrates that principle well. In addition to arguing that Mehanna could be convicted based on his speech, the government argued that Mehanna had travelled to Yemen in an unsuccessful attempt to find an al Qaeda training camp. At best (and Mehanna’s lawyers contest this), this theory might have permitted a jury to convict Mehanna of attempting to provide “material support”—himself—to al Qaeda. But the jury was allowed to convict Mehanna on either theory—that he engaged in unlawful conduct or that he engaged in offensive advocacy—without indicating which it believed. Unlawful conduct is a proper basis for criminal prosecution and conviction; offensive advocacy is not.

Our nation’s history painfully documents the tendency of government to suppress dissent and unpopular expression in times of crisis only to regret it later. When we empower a jury to imprison fellow citizens for their thoughts and expressions—however offensive and crude—we risk, as the Supreme Court has said, “sanction[ing] the subversion of one of those liberties...which makes the defense of the Nation worthwhile.” As the Court has cautioned, the greater the perceived threat to our way of life, “the more imperative is the need to preserve inviolate” our ideals of free expression.

That Mehanna could have been convicted for his political advocacy alone undermines our dedication to those principles.

Today, the ACLU and the ACLU of Massachusetts filed a friend-of-the-court brief in Mehanna’s appeal arguing that his speech, though extreme, is protected by the Constitution. You can read our brief here.

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Anonymous

This is a really interesting question, which I think points to the core issues of First Amendment Rights. The case (as presented here) brings up the tricky question: Is a person's right to speech contingent on the intent behind the words? Does content of one's speech matter?

On the one hand, every citizen has the right to hold whatever views one deems appropriate and to express those views as long as they don't infringe on the rights and liberties of others. So in the case of Nazi Skinheads, they are legally allowed to march down a public street with their hateful rhetoric (just as people along that same street are legally allowed to "speak back" at them). As long as no one is acting out, it's just an exchange of words and ideas.

On the other hand, in Mehanna's case one might argue that when one acts as a "translator" for Al-Quaeda one is providing a service and that could be taken as "aid" to an enemy.

So the question becomes: Does performing a service such as speaking to promote an "enemy" organization and it's goals, override an individual's right to speak what they believe? Can one be held accountable for "acting through" one's words this way? Should the government be allowed to suppress the voice of its citizens when it deems them part of a threat? Are citizens always allowed to speak out against their government (whether good or bad)?

One question I would have here is whether Mehanna was paid (with money or other material rewards) to perform that service or whether it was entirely voluntary on his part. I think the latter mitigates his culpability.

But given the case as presented here, I side with the ACLU on this. Mainly because I think the principle of free speech overrides the content of that speech.

Otherwise it's the government making an arbitrary decision about the content and intent of an individual's speech and I don't think our government (made up of very fallible people) is in any position to do that. Our government is there to protect all its citizens, not just those that agree with it.

The fact that the government had to really work to persuade a jury to convict, and was only 'enabled' by the court's instruction to override the first amendment, I think shows that their argument is based more on emotional projections instead of sound fundamental principles.

This is just my opinion. Thanks for reading. Hope it helps the discussion.

Anonymous

I cannot believe that the ACLU would support a hate group such as the Westboro Baptist Church so that they can be free to spout off their anti-gay rhetoric on those who have no desire to hear such an inflammatory message.

I feel that this goes against everything that you believe in, specifically the right of LGBT citizens to be free from this form of harassment.

Shame on you ACLU!

Anonymous

Ridiculous.

Westboro Church may digust us with their protected speech expressing views odious to most of us. Obama's longtime pastor, mentor and confidante can rant and rave about roosting chickens,and damning America. But Mehanna's providing instruction on bomb-making and encouraging people to build bombs goes way, way beyond rhetoric or free expression in the marketplace of ideas.

Jeremiah Wright is not a political prisoner, and neither is WBC pastor Fred Phelps. Nor is Tarek Mehanna, who unlike those two, is in prison for criminal, material support of our enemies. You may not like the term enemies or poo-poo the notion of a clash of civilizations. Even so, the reality is that we do have enemies who are at war with us even if you deny it. Tarek Mehanna is an agent of the Civilization of Clashes, the good old Religion of Peace™. Mehanna happens to favor violent Jihad. His promoting it is what landed him in the pokey. However, the smooth-talking folks from the Muslim Brotherhood's network of front organizations(CAIR, MAS, ISNA, ...) are indeed practicing Jihad against us, and we know this from their own documents which were brought into evidence at the Holy Land Foundation trial. Watch The Third Jihad and Losing Our Sons.

It's fashionable in this all too PC age to sing the praises of multi-culti peace, love and brotherhood and worry about bogus, contrived "Islamophobia"—while all but ignoring the very real problems of the persecution of Christians throughout the Muslim world, intolerance of Christian religious expression here in the US and antisemitism everywhere. The trick in tolerating views that are anathema is to not be so open-minded that your brains fall out.

Anonymous

Ridiculous.

Westboro Church may digust us with their protected speech expressing views odious to most of us. Obama's longtime pastor, mentor and confidante can rant and rave about roosting chickens,and damning America. But Mehanna's providing instruction on bomb-making and encouraging people to build bombs goes way, way beyond rhetoric or free expression in the marketplace of ideas.

Jeremiah Wright is not a political prisoner, and neither is WBC pastor Fred Phelps. Nor is Tarek Mehanna, who unlike those two, is in prison for criminal, material support of our enemies. You may not like the term enemies or poo-poo the notion of a clash of civilizations. Even so, the reality is that we do have enemies who are at war with us even if you deny it. Tarek Mehanna is an agent of the Civilization of Clashes, the good old Religion of Peace™. Mehanna happens to favor violent Jihad. His promoting it is what landed him in the pokey. However, the smooth-talking folks from the Muslim Brotherhood's network of front organizations(CAIR, MAS, ISNA, ...) are indeed practicing Jihad against us, and we know this from their own documents which were brought into evidence at the Holy Land Foundation trial. Watch The Third Jihad and Losing Our Sons.

It's fashionable in this all too PC age to sing the praises of multi-culti peace, love and brotherhood and worry about bogus, contrived "Islamophobia"—while all but ignoring the very real problems of the persecution of Christians throughout the Muslim world, intolerance of Christian religious expression here in the US and antisemitism everywhere. The trick in tolerating views that are anathema is to not be so open-minded that your brains fall out.

Zachary Tarlow

I agree with the ACLU 100%

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