FAREWELL, FIRST AMENDMENT?
April 26, 2012 § 3 Comments
in 2004, Tarek Mehanna traveled from America to Yemen with a friend. He claims he was searching out schools at which to study classical Islamic law. The US government insists that he was looking for a jihadi training camp. What all agree is that, even if he was looking for jihadis, he never found any. The US authorities accept that Mehanna never joined the jihadi groups he never found, nor ever funded any such groups. He did, however, on returning to the USA, set up a website that published English translations of jihadi documents, including one called ’39 Ways to Serve and Participate in Jihad’, and advocated the jihadi cause. Last year Mehanna was convicted of providing ‘material support for terrorism’, and of ‘conspiring to kill in a foreign country’. Earlier this month he was sentenced to seventeen and a half years in prison.
The Mehanna case raises troubling questions about how the war on terror has transformed the interpretation of the First Amendment. It is, many lawyers and academics suggest, the most significant free speech verdict for a generation.
Here is David Cole, professor of law at Georgetown University, blogging at the New York Review of Books:
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 organisation’…
Why should those of us who have no interest in reading ’39 Ways to Serve and Participate in Jihad’ care? For the same reason that we should care about the prosecution of a Klansman or an anarchist for their speech. History shows that free speech is fundamental to a robust democracy, and that if the government can punish expression because of its political content, it will use that power to go after its enemies. Today’s enemy may be anyone who shows sympathy with jihadism, but who knows who tomorrow’s enemy will be. You don’t need 39 ways to unravel democracy; giving the government the power to penalize the speech it detests will do it in one.
And here is Andrew F. March, associate professor of political science at Yale University, writing in the New York Times:
Mr. Mehanna’s conviction was based largely on things he said, wrote and translated… For the government, Mr. Mehanna’s delivery of “material support” consisted not in his failed effort to join jihadi groups he never found, nor in financial contributions he never made to friends trying to join such groups, but in advocating the jihadi cause from his home in Sudbury.
Mr. Mehanna’s crimes were speech crimes, even thought crimes. The kinds of speech that the government successfully criminalized were not about coordinating acts of terror or giving directions on how to carry out violent acts. The speech for which Mr. Mehanna was convicted involved the religious and political advocacy of certain causes beyond American shores…
We have the resources to prevent acts of violence without threatening the First Amendment. The Mehanna prosecution is a frightening and unnecessary attempt to expand the kinds of religious and political speech that the government can criminalize.
Sahar F. Aziz is assistant professor at the Texas Wesleyan School of Law and former policy adviser to the US Department of Homeland Security:
Other than the color of their skin and their religious backgrounds, there is not much difference between Mehanna and the Sovereign Citizens’ movement, neo-Nazis, and the Ku Klux Klan. And yet the US government allows the latter groups to operate relatively openly despite American’s collective aversion to their repulsive ideologies. That is because the Founding Fathers had the foresight to know that without constitutional protection for dissent, especially unpopular and controversial dissent, those in power would use the law to remain in power indefinitely. Hence a meaningful democracy cannot exist without the First Amendment.
Cases such as Mehanna’s are not unusual in Britain. That such prosecutions should be successful in the land of the First Amendment is troubling.
The image comes from the blog Political Gates