Under traditional (read “pre-9/11”) First Amendment doctrine, [Tarek] 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”. 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 organization.”
[…] The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher , Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda). It did not even claim that the “39 Ways” was written by al-Qaeda. The prosecution offered plenty of evidence that in Internet chat rooms Mehanna expressed admiration for the group’s ideology, and for Osama bin Laden in particular. But can one provide “material support” to a group with which one has never communicated?
The Supreme Court in Holder v. Humanitarian Law Project emphasized, as had the United States government in defending the “material support” statute, that the law does not make it a crime to engage in “independent advocacy” in support of a designated organization’s cause. Writing for the majority, Chief Justice John Roberts strongly implied that this limitation was constitutionally mandated:
The Court also finds it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. Most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.
“Under the material-support statute,” the Court insisted, people “may say anything they wish on any topic.” But apparently not on “jihad.” The prosecutor in Mehanna’s case argued that the translation was motivated by Mehanna’s ideological support of jihadism, and of al-Qaeda in particular. But without coordination, and without delivery of the final product to al-Qaeda or any of its known affiliates, it looks like nothing more than “independent advocacy,” activity that the government said would not, and the Supreme Court implied could not, be punished.
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.