Avoidance of the First Amendment Questions in the Mehanna Case

In contrast with several other wartime eras in our Nation’s history, it is striking that the government’s counterterrorism efforts during the past twelve years have involved comparatively few incidents of speech suppression raising serious constitutional questions–with the important exception of the “material support” issues raised by the Court’s decision in Holder v. Humanitarian Law Project.

In the wake of HLP, however, there has been one context in which criminal prosecutions have begun to raise First Amendment concerns–namely, certain efforts to punish advocacy of terrorism on the Internet.  I discussed some of the First Amendment questions raised by such cases here, in connection with the Emerson Begolly prosecution.  (Begolly later pleaded guilty to solicitation of terrorism, and therefore his case did not produce any important judicial precedents on the First Amendment questions.)

By far the most prominent case in which such constitutional questions have been raised is the trial of Tarek Mehanna in Massachusetts.  Part of the government’s case in support of four of the charges against Mehanna was that he had translated several jihadist texts and videos into English for distribution on the Internet, and had urged readers to engage in jihad.  Under HLP, such activity is not covered by the “material support” prohibitions in federal law (and is probably constitutionally protected) unless it was done at the direction of, or in coordination with, a designated terrorist organization.  The government argued to the jury that there was proof beyond a reasonable doubt that Mehanna’s translation and advocacy were done in coordination with al Qaeda.  But many observers of the case–most prominently, my colleague and fellow blogger David Cole and Professor Andrew March–argued that the evidence fell far short of such a showing of coordination, and that therefore Mehanna’s activities were constitutionally protected.  For a good flavor of the detailed and spirited public debate about that question, see, for example, this exchange between David and Peter Marguiles.

Mehanna thus was widely viewed as a test case of how the “coordination” requirement of HLP would and should be understood and applied.

Yesterday the U.S. Court of Appeals for the First Circuit affirmed Mehanna’s convictions, in a long opinion that avoided the need to decide anything about coordination . . . and thus avoided resolution of any constitutional questions.

The court of appeals concluded that the four charges in question were fully supported by evidence relating to an incident that occurred before Mehanna’s Internet activities — namely, his travel to Yemen in 2004, where he unsuccessfully searched for a jihadist training camp at which he could learn how to fight against the U.S. in Iraq.  The court concluded that the evidence entitled the jury to find that the Yemen trip constituted an effort by Mehanna to provide material support to a terrorist organization, and to provide such support, in particular, in the service of an effort to kill persons abroad.

There’s one catch, however:  The government had offered the jury two theories in support of the four charges–the Yemen trip and and Mehanna’s subsequent Internet activities–and successfully urged the trial court to ask the the jury to return a “general” verdict, i.e., one in which a finding of guilt on the four charges would not and did not specify which of the two evidentiary predicates (or both) supported the jury’s verdict.

The court of appeals held that the general guilty verdict could be sustained, even assuming for the sake of argument that the evidence of coordination with al Qaeda on Mehanna’s Internet activities had been inadequate to support that verdict–that is to say, even if Mehanna’s translation and advocacy were constitutionally protected.  The court reasoned as follows:

[W]e have no occasion to examine the factual sufficiency of [the translation/advocacy] activities as a basis for his terrorism-related convictions.  Even if the government’s translation-as-material-support theory were factually insufficient, we would not reverse: the defendant’s convictions on the affected counts are independently supported by the mass of evidence surrounding the Yemen trip and, under Griffin [v. United States, 502 U.S. 46 (1991)], we need go no further.

By eliminating Mehanna’s Internet activities altogether from the issues on appeal, the court thereby ensured that Mehanna will not be the important First Amendment precedent that many had thought it might be.

P.S.  Hyperbole/false-equivalence alert:  The court of appeals’ opinion begins with this statement:  “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.” 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).