Freedom of speech on trial



Carol Rose

Carol Rose, executive director of the ACLU of Massachusetts, originally wrote this blog for Boston.com.

What do get when you take America's overly-broad conspiracy and material support laws and mix them with efforts by federal prosecutors to criminalize unpopular speech?

In the short run, you get easy jury verdicts against guys like Tarek Mehanna. In the long run, you get an attack on freedom of speech itself. And that's a threat to all of us.

Mehanna, an Egyptian-American Boston University graduate, was convicted today almost solely on evidence that he espoused and translated documents promoting ideas about jihad.

Like most of you, I find much of what Mehanna is alleged to have translated and shared on the Internet to be offensive and even hateful. Then again, like many of you, I find a lot of stuff on the Internet to be offensive and hateful.

But, as an American, I've been reared not to be afraid of offensive and hateful ideas, and certainly not to criminalize them. To the contrary, we Americans have a duty to defend what Anthony Lewis calls "freedom for the thought we hate", even as we have a parallel duty to use our freedom of speech to call out bad ideas for ridicule and condemnation--a duty that I exercise with some regularity as a blogger and public advocate.

You don't have to be a fan of jihadi videos--and I'm certainly not--to realize that criminalizing a person for espousing and translating unpopular ideas will do far more damage to our democracy than letting Mehanna and his buddies have their virtual shout. After all, unpopular ideas are precisely what the First Amendment was designed to protect--when was the last time prosecutors tried to convict someone of espousing a popular idea?

This verdict threatens prosecution for ordinary people--including writers and journalists, academic researchers, translators, and even ordinary web surfers--who simply show curiosity about controversial and unpopular ideas. It is likely to chill the expression of people who are critical of our government’s foreign policy. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.

The U.S. Supreme Court, which endorses the notion of making it a crime to provide "material support to terrorists," requires that prosecutors show that expressive activity be coordinated with or take place under the direction of a foreign group that the speaker knows to be a terrorist organization in order to be prohibited. [Holder v. Humanitarian Law Project, 561 US _, 130 S. Ct. 2705 (2010)].

Independent advocacy, by itself, does not constitute material support. Even speech that is "vehement, caustic, and sometimes unpleasantly sharp" is protected by our Constitution. Notably, prosecutors in the Mehanna case didn't bother to argue that his speech constituted incitement, nor could they credibly do so based on the facts in this case. Instead, they turned to the easy out--the wildly broad U.S. laws on conspiracy, combined with an overly-broad interpretation of material support.

No doubt, these constitutional issues will form the basis of an appeal under the First Amendment. In the meantime, the Mehanna case serves as a warning to all of us of the dangers posed to American liberty when prosecutors think they can preserve stable government by coercing the silence of the governed.

Such misguided efforts ignore the defining values of freedom of speech and thought, which our Constitution is designed to protect, and open the door to charges of "thoughtcrime". However extreme the statements translated by Mehanna may have been, they are far less dangerous to the United States than the step toward tyranny that the criminalization of his unpopular speech now represents.