吃瓜大本营

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 鈥渕aterial support鈥� 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 鈥渕aterial support鈥� 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鈥檚 case focused on Mehanna鈥檚 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鈥檚 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鈥檚 essential liberties. Just last year, for example, in the case of the Westboro Baptist Church, the Supreme Court upheld the Church鈥檚 right to picket and protest the funerals of our soldiers with signs bearing repulsive messages: 鈥淕od Hates the USA/Thank God for 9/11,鈥� 鈥淭hank God for Dead Soldiers,鈥� and 鈥淭hank God for IEDs.鈥�

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 鈥渁ctive member鈥� 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鈥攐r even a majority of us鈥攄isagrees 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鈥檚 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鈥檚 expansive theory and took the unusual step of instructing Mehanna鈥檚 jury not to 鈥渨orry about鈥� the First Amendment. The court authorized the jury to punish Mehanna鈥檚 political advocacy based on bare 鈥渃oordination鈥� 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鈥檚 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 鈥渕aterial support,鈥� and the district court accepted its view. What makes the government鈥檚 theory so dangerous to our freedom of speech is that it threatens to dismantle the barrier that the Supreme Court has erected 鈥渂etween words and deeds, between ideas and conduct.鈥� 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鈥檚 First Amendment case law: that 鈥淸t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.鈥� 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鈥檚 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鈥檚 lawyers contest this), this theory might have permitted a jury to convict Mehanna of attempting to provide 鈥渕aterial support鈥濃�攈imself鈥攖o al Qaeda. But the jury was allowed to convict Mehanna on either theory鈥攖hat he engaged in unlawful conduct or that he engaged in offensive advocacy鈥攚ithout indicating which it believed. Unlawful conduct is a proper basis for criminal prosecution and conviction; offensive advocacy is not.

Our nation鈥檚 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鈥攈owever offensive and crude鈥攚e risk, as the Supreme Court has said, 鈥渟anction[ing] the subversion of one of those liberties...which makes the defense of the Nation worthwhile.鈥� As the Court has cautioned, the greater the perceived threat to our way of life, 鈥渢he more imperative is the need to preserve inviolate鈥� our ideals of free expression.

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

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

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