Suppose you and I are friends. We've grown up together. We've shared conversation; we've traded ideas. Now suppose that as I've gotten older, I've changed. In fact, I've become a zealot. One day I bring up the topic of suicide bombers. And, to your surprise, I actually sympathize with people who strap explosives to their chests and go looking for crowds of innocents.
Later, I return with media: DVDs of radical propaganda. They feature clips of death and mutilation from distant battlefields. They're filled with angry people gushing violent, bigoted rhetoric. I make movies like this, I tell you. And I write. I translate stuff like this from one language to another. I've done a good job, too. My blog is pretty popular.
One day you're approached by the police. They're asking questions about me: What are his beliefs? How does he spend his time? It's a crime to lie to them, so you answer truthfully. And a short time later, you see me on the news in handcuffs, above a caption: "Suspected local terrorist arrested."
Now suppose that at trial the government offers the conversations, DVDs, and writings as proof that I'm a member of a terrorist organization. They point to our conversations as evidence that I'm a dangerous criminal. They argue that the DVDs incite others to do violence, and that the writings offer a guide for those who want to do it well.
The case against me is viscerally compelling. It'd be hard for anyone to relate to, let alone sympathize with, a person capable of spewing the sort of vile slime by which I made my name. But by my words alone, can I fairly be called a criminal? Though my actions may have broken the law, to what extent can my words – "the thought we hate" famously referenced by Justice Holmes in U.S. v. Schwimmer – be punished as well?
Those are the questions brought up in the US government's case against Tarek Mehanna.
The prosecution of Mehanna, a U.S. citizen, began in 2008 after he was arrested and charged with making false statements to the FBI's Joint Terrorism Task Force. Further investigation revealed that in addition to allegedly lying to the FBI – a federal crime in its own right – Mehanna and a co-defendant allegedly traveled abroad in search of terrorist training camps that would take them. (Apparently this was more difficult than they expected; according to the indictment, Mehanna and the co-defendant, Ahmad Abousamra, were rejected by at least one training camp in Yemen to which they sought admission.) They also allegedly sought to enter Iraq and fight against U.S. forces there. If the allegations are true, these are indisputably actions that are illegal.
The bulk of the seven-count indictment, though, is filled with allegations that Mehanna's speech amounted to material support of terrorists in violation of federal law. Indeed, it alleges that Mehanna claimed to be al-Qaeda's "media wing"; that he used his knowledge of Arabic and English to translate terrorist propaganda, like a document called 39 Ways to Serve and Participate in Jihad; and that he made, or at least distributed, a video depicting mutilation and abuse of the remains of U.S. military personnel in Iraq.
The government also points to other, less clear examples of Mehanna's alleged support of terrorism: that he watched jihadi videos with friends; that he lent "compact discs" to people in order to "create like-minded youth" in the Boston area; that he discussed with friends his "view of suicide bombings, the killing of civilians, and dying on the battlefield for Allah"; that he sought out information about the nineteen 9/11 hijackers on the Internet; and that he "asked a friend for information on how to transfer files from one computer to another." In support of a conspiracy charge, it alleges that Mehanna agreed to translate a video about Abu Musab al Zarqawi, and that he gave an unnamed party a copy of a video containing footage from Chechnya and Afghanistan.
If the allegations are true, it seems inarguable that Mehanna is a despicable character; and, for any real attempts to wage war or commit violence, he deserves to be imprisoned. But many of the charges rely at least in part on evidence of speech that has long been protected by the First Amendment. In First Amendment jurisprudence, there is a finite (and, mostly, closed) list of categories of unprotected speech – that is, speech that may be banned or restricted because for one reason or another it falls outside the First Amendment's guarantee of protection. Relevant to the Mehanna case, the Supreme Court has ruled that speech that incites others to unlawful action and speech that is a "true threat" against an individual or a group, are both kinds of speech that are unprotected.
As I see it, all of the speech at issue in the Mehanna case is neither incitement nor a "true threat." In the landmark Brandenburg v. Ohio decision from 1969, the Supreme Court ruled that:
[T]he constitutional guarantees of free speech... do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. (emphasis added)
In Mehanna's case, few examples from the indictment can fairly be considered incitement to imminent lawless action. Perhaps the closest case is his translation of propaganda from Arabic to English – but it's unlikely that on the basis of his translations alone a reader would immediately rush out and commit violence. The DVD of the mutilation of the remains of U.S. servicemen is also a close case – but in that example, the people most likely to be incited to violence are probably the comrades and families of the victims against Mehanna himself, not Mehanna's target audience of jihadi wannabes against US civilians or soldiers. So that fails Brandenburg, too. The immediacy that Brandenburg requires to proscribe the use of force simply isn't present in Mehanna's efforts to make available information that could aid a terrorist, and to advocate a terrorist cause.
Likewise, though his speech may be menacing, it is not a "true threat" as the Supreme Court has defined it. In Virginia v. Black, the Court ruled that true threats are:
...those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. (citations omitted)
It's difficult to see how any of the speech at issue in the Mehanna case meets this definition. The speech does tend to propose violence, but in a broad, inchoate form. From the information that has been made available in the government's indictment, there is no suggestion that Mehanna singled out individuals or specific groups and promised violence against them. Instead, it appears that most of his work advocated the use of violence in the name of his cause, not against a particular target. This kind of speech arguably is not a "true threat," and should be protected in spite of its hateful nature.
Circumstances like those that brought Mehanna to the dock are certainly unnerving; the concept of "homegrown" terrorism is, well, terrifying. But unsavory though his views may be, they alone cannot justifiably form the basis of a criminal conviction. We can no sooner make ourselves safer by curtailing freedom of speech and thought than Mehanna could inspire followers by spreading his message of hate. From all indications, Mehanna was an unsuccessful mouthpiece. The values he espoused are so contrary to those of right-thinking people that he persuaded almost no one to share his view. It would be foolish, therefore, to mortgage our own cherished values merely to suppress those of an infirm and incompetent few.
Noah Hampson is a third-year student at the Boston College Law School and is the editor-in-chief of the Boston College International & Comparative Law Review. He interned as a law clerk at National Public Radio this past summer.