FAN 27 (First Amendment News) — Humanitarian Law Project petition before High Court

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Seventeen and a half years for translating a document? Granted, it’s an extremist text.                                                                                      — David Cole

Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all.                             — Rachel Levinson-Waldman

The case is: Mehanna v. United States.

Tarek Mehanna

Tarek Mehanna

The issue is: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

→ Summary of relevant facts as stated by the appellate court: “In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

“The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa’ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa’ida-generated media and materials supportive of al-Qa’ida and/or jihad.”

→ The charges against the Defendant included:

  • one count of conspiracy to provide material support to al-Qa’ida;
  •  one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. § 956 and  § 2332
  • one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. § 956 and § 2332
  • and one count of conspiracy to kill persons in a foreign country

→ ACLU of Massachusetts press release re trial verdict: “Mehanna Verdict Compromises First Amendment, Undermines National Security,” Dec. 20, 2011: “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.”

Op-Ed Commentaries 

On Appeal before First Circuit

In an opinion by Judge Bruce Selya, a three-judge panel of the First Circuit denied the Defendant Tarek Mehanna‘s First Amendment challenge. Here is how Judge Selya (former chief judge of the United States Foreign Intelligence Surveillance Court of Review) began his opinion:

Terrorism is the modern day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

And here is how Judge Selya closed his opinion in ruling against the Defendant Tarek Mehanna:

Cases like this one present a formidable challenge to the parties and to the trial court: the charged crimes are heinous, the evidentiary record is vast, the legal issues are sophisticated, and the nature of the charges ensures that any trial will be electric. In this instance, all concerned rose to meet this formidable challenge. The lawyers on both sides performed admirably, and the able district judge presided over the case with care, skill, and circumspection. After a painstaking appraisal of the record, the briefs, and the relevant case law, we are confident — for the reasons elucidated above — that the defendant was fairly tried, justly convicted, and lawfully sentenced.

→ Amici on behalf of the Petitioner in the First Circuit included:

  • Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts
  • Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights
  • Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National, Association of Criminal Defense Lawyers
  • E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East
Judge Bruce Selya

Judge Bruce Selya

The government was represented by Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice.

→ Sabin Willett is the counsel of record representing the Defendant Tarek Mehanna in his petition to the Court. In his petition, Mr. Willett’s First Amendment arguments include the following:

  1. “In Humanitarian Law Project, the Court addressed the important question of whether speech could be criminalized as provision of material sup- port in the form of a “service” to an FTO. Deciding that such speech can be unlawful when it takes the form of directly-interactive teaching, the Court interpreted §2339B as imposing criminal liability for speech that is a “service” if that speech is sufficiently “coordinated” with the FTO. This Court did not further define ‘coordination,’ nor hold that all “coordinated” speech could be criminalized consistent with the First Amendment. . . . Outside the narrow factual context of Humanitarian Law Project, the legal contours of ‘coordination’ remain a riddle. The word does not appear in any relevant section of the statutes. The decision uses “coordination” to describe the specific conduct found unlawful in that case, but provides no general definition, and leaves open that some levels of ‘coordination’ may be lawful.”
  2. “Petitioner argued below that a constitutional definition of ‘coordination’ requires an inquiry into the relation of the speaker to the FTO, and cannot be based in the content of his speech. If an FTO directs the defendant to write, the defendant’s compliance might provide a service that the Constitution does not protect, but that service would lie in compliance, not content.”
  3. Certain counts of the Petitioner’s conviction violated his right of association.

→ The government’s brief in opposition can be found here.

Historical Aside re Humanitarian Law Project

The case for the government was argued by Solicitor General Elena Kagan

The case for the Humanitarian Law Project was argued by Professor David Cole

Transcript of oral argument here

Interview with Robert Post re his latest book

Dean Robert Post’s latest book is now out. It is entitled Citizens Divided: Campaign Finance Reform & the Constitution and contains commentaries by Pamela KarlanLawrence LessigFrank Michelman, and Nadia Urbinati.

Here is the publisher’s description of the book:

“The Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission, which struck down a federal prohibition on independent corporate campaign expenditures, is one of the most controversial opinions in recent memory. Defenders of the First Amendment greeted the ruling with enthusiasm, while advocates of electoral reform recoiled in disbelief. Robert Post offers a new constitutional theory that seeks to reconcile these sharply divided camps.

Robert Post

Robert Post

“Post interprets constitutional conflict over campaign finance reform as an argument between those who believe self-government requires democratic participation in the formation of public opinion and those who believe that self-government requires a functioning system of representation. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many implications of this simple but profound insight. Critiquing the First Amendment reasoning of the Court in Citizens United, he also shows that the Court did not clearly grasp the constitutional dimensions of corporate speech.

“Blending history, constitutional law, and political theory, Citizens Divided explains how a Supreme Court case of far-reaching consequence might have been decided differently, in a manner that would have preserved both First Amendment rights and electoral integrity.”

My Q & A interview with Dean Post appears in SCOTUSblog and can be found here.

Study shows US data sweep harms press freedom

According to a July 28th news story in the Mail & Guardian:

“A study has found that surveillance efforts aimed at thwarting terrorist attacks have undermined press freedom — and broader democratic rights. Large scale surveillance by the United States government has begun to have an impact on press freedom and broader democratic rights, a recently released study showed.The report, released on July 28 by the American Civil Liberties Union and Human Rights Watch, found that the vast surveillance efforts aimed at thwarting terrorist attacks have undermined press freedom, the public’s right to information as well as rights to legal counsel. “The work of journalists and lawyers is central to our democracy,” said report author Alex Sinha. ‘When their work suffers, so do we.’

“In the current atmosphere, sources are more hesitant to discuss even unclassified issues of public concern, fearing a loss of security clearances, dismissal or criminal investigation. The report said some reporters are using elaborate techniques to avoid surveillance, such as encrypted communications, the use of disposable phones or avoiding the internet and other networks entirely. The journalists said they feared coming under suspicion for doing their jobs.”

→ See Press Release and Report (“How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy”) here.

Senate to Vote on Amendment to First Amendment

A procedural vote has been scheduled for September 9, 2014 concerning a proposed Amendment to the First Amendment. More on this next month.

Quick Hits

Scholarly Articles

→ Forthcoming from Professor Piety: “Paternalism and the Regulation of Commercial Speech” (paper presented at Freedom of Expression Scholars Conference, May 4, 2014)

News Stories, Editorials & Op-Eds

Nota bene: Two Cases — 9th & 3rd Circuit Rulings

→ Eugene Volokh, “Can the federal government bar First Amendment overbreadth defenses in criminal cases?,” Volokh Conspiracy, Aug. 12, 2014. In response to the title of his post, Professor Volokh noted:

That’s what United States v. Szabo (9th Cir. July 28, 2014) (2-to-1) seems to imply. William J. Szabo was prosecuted for violating a Veterans Administration regulation banning “disturbances” at VA facilities. The panel unanimously found that the regulation was constitutional as applied to Szabo’s speech, “because his conduct involved a ‘true threat’ of violence.” But Szabo also claimed that the speech restriction was unconstitutionally overbroad — something that is generally allowed in First Amendment cases.

 Yet the majority held that Szabo couldn’t bring this challenge, because a federal statute expressly provided that such regulations could only be challenged in the U.S. Court of Appeals for the Federal Circuit. Szabo was arguing that the regulation was unconstitutionally overbroad before the federal district court that tried him, and then before the Ninth Circuit; that, the court held, was impermissible. “‘[So long as] Congress provides for a ‘special statutory review proceeding’ in one specific court, challenges to the administrative action must take place in the designated forum.’”

This would potentially have quite broad implications. It would let Congress shunt all overbreadth objections to federal regulations to a specialized court, and thus bar First Amendment overbreadth defenses in federal prosecutions for violating particular regulations, far outside the specific area of VA regulations or even regulations dealing with conduct on federal property.

And I think it would also let Congress similarly bar First Amendment overbreadth defenses in all federal criminal prosecutions, simply by providing that any challenges to the constitutionality of a statute be brought before a specialized court. The First Amendment overbreadth defense available in federal criminal cases would thus be basically optional, freely removable at Congress’s discretion.

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→ Ruthann Robson, “Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment,” Constitutional Law Prof Blog, Aug. 12, 2014. Here is how Professor Robson summarized the attorney advertising case:

The New Jersey Supreme Court’s Guideline 3 governing attorney advertising provides: “An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.”

The Third Circuit’s opinion in Dwyer v. Cappell found this guideline violated the First Amendment’s protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985). . . . 

The case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3 — which may have been specifically targeted at him — by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency.

→ The opinion for the Court was by Circuit Judge Thomas Ambro.

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Last Scheduled FAN, #26: “Akhil Amar on the “First” Amendment

Next Scheduled FAN, # 28: Wednesday, August 20th

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