By Dan Kennedy • The press, politics, technology, culture and other passions

Talking up terrorism and the right to free speech

It was Peter Gelzinis’ column in today’s Boston Herald that got me thinking about the case of Tarek Mehanna, the Sudbury man on trial for terrorism-related charges in U.S. District Court in Boston.

Mehanna’s lawyer, J.W. Carney, argues that Mehanna’s activities have been limited to advocacy on behalf of Al Qaeda, which is protected by the First Amendment. But prosecutors, as Milton Valencia reports in today’s Boston Globe, have been suggesting that Mehanna is guilty of actual terrorist activities, including traveling to Yemen to receive training.

So I sat up and took notice when I saw this quote in Gelzinis’ column, in which federal prosecutor Aloke Chakravarty tells the jury that Mehanna had translated documents such as “39 Ways to Serve and Participate in Jihad” into English. “Simply agreeing to do that is a crime in this country,” Chakravarty said.

Well, it may be a crime, but if it is, the law under which Mehanna has been charged is almost certainly unconstitutional. Essentially, Mehanna is being charged with incitement to violence, a category of speech that is not protected by the First Amendment, and can thus be prosecuted. But the U.S. Supreme Court has made it clear that speech cannot be considered incitement unless it presents a genuine threat of immediate harm — a right-here, right-now standard that does not apply to general calls for violence.

In 1969, the court ruled that a Ku Klux Klan leader named Clarence Brandenburg could not be prosecuted for calling for “revengeance” (no, not a word, but Klan leaders tend not to be too brite) against Jews and African-Americans, ruling in Brandenburg v. Ohio:

Freedoms of speech and press do not permit a State to forbid 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.

Eight years later, the courts overturned efforts by officials in Skokie, Ill., aimed at preventing a neo-Nazi group from marching through the streets of their community. The Supreme Court, having spoken in the Brandenburg case, declined to get involved.

To the extent that Mehanna’s alleged crimes amount to pure advocacy, even of violence against the government and of terrorism, his speech is protected by the First Amendment. As Carney says, “We can hold onto these views, and we can speak them, even if it’s what upsets the United States government. It’s what makes the United States so great, so strong, and so free.”

I find it shocking that Chakravarty read to the jury an ode Mehanna allegedly wrote to commemorate the terrorist attacks of 9/11. If that isn’t protected speech, well, I don’t know what is. It’s the speech we find most loathsome that is in the greatest need of protection. Keep that in mind as this case moves forward.

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  1. L.K. Collins

    The trial is a criminal prosecution. Motive, means, and opportunity are elements in establishing the criminal case.

    To the extent that the defendant’s actions speak to motive, the evidence could be found relevant by the trier of fact.

  2. Mike Benedict

    Yesterday’s Klan leaders are today’s televangelists.

  3. C.E. Stead

    DK – an instruction manual for jihad (which is by definition a movement dedicated to total destruction) would seem to constitute an immediate threat to harm. It’s not as if jihad efforts are theoretical. The recent Times Square car bomb demonstrated that there are bona fide physical threats. Signs and effigies from OWS protesters calling violent action against bankers would be a better example of protected loathsome speech, as they are not providing instructions for violence, but are merely advocating for it.

    The ode, not so much. Except as a demonstration of sincere committment to jihadist aims, it doesn’t seem to have much evidentiary value.

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