Analysis

The Supreme Court’s recent forays into the Constitution as it applies to expression in the digital age have given the Justices a real-world awareness that, in addition to producing cultural and social gains, electronic devices can sometimes enable crime.  Proceeding with some caution, the Court has given prosecutors some constitutional guidance, but it also has stirred up some new questions.

At its September 29 Conference, the Court will have an opportunity to take up one of those new questions:  when does using the Internet to write about religious “holy war” amount to a crime of promoting terrorism?  Adding to the difficulty of resolving that issue is that the case involves a U.S. citizen — a Massachusetts man who dropped out of college to pursue his sympathy for Islamic doctrine.

Early in its new Term, when the Court examines the case of Mehanna v. United States, it will be confronting the federal criminal law that has become the favorite of prosecutors each time they begin to build a case about terrorist crimes. It is the broadly worded — and unusually adaptable — law making it a crime to give “material support” to a terrorist organization.

Tarek Mehanna is serving a prison term of seventeen-and-a-half years after being convicted by a Boston jury of several counts of providing “material support,” along with other related crimes.  He wants the Court to clarify how close a tie an Internet user must actually have to a designated terrorist group before his digital expression loses First Amendment protection.  The government, though, argues that this case is not a proper test of that question, so the Court need not sort out the First Amendment implications of the “material support” law — even though the Supreme Court four years ago at least implied that it was awaiting a new test case.

The case is a sequel to the Court’s 2010 ruling in Holder v. Humanitarian Law Project, and Mehanna’s lawyers appealed it in an attempt to get an explicit answer to a question the Court had left open then.

In its 2010 decision, the Court allowed federal prosecutors to use the “material support” law against speech activities, provided that they were “coordinated” with a known terrorist organization.  Because of the procedural status of that case, with the challenge to the law coming before it was actually enforced, there was not a full record, and the Court made clear that it was not deciding whether “any future applications of the material-support statute would survive First Amendment scrutiny.”  That question, it added, would have to “await a concrete fact situation.”

Thus, it remains an open question what “coordination” means under the “material support” law.  Mehanna’s petition argued that his case presents the “concrete fact situation” that the Court seemed to have in mind.  This, it added, is “the sort of actual case that this Court predicted would be necessary to adjudicate the reach and constitutionality of the material support statutes in speech cases.”

Because the jury that found him guilty was allowed to vote for a general verdict, Mehanna’s lawyers argued, the verdict could have been based on his activities in translating articles about “jihad” on the Internet and his “dissemination of texts that he selected as expressive of his political or religious views” — in other words, “core First Amendment activity.”

That activity, according to the petition, “was not commissioned, directed, paid for by, performed in concert with, or presented to” a foreign terrorist organization.  He “received no direction from” from any such organization, the filing added.

His lawyers have conceded that Mehanna was “a passionate opponent of U.S. involvement in Iraq,” and that “his political and religious expressions were vigorous.”  He visited Internet sites that the government has called “extremist,” his lawyers said, “but he never associated with Al-Qaida. Permitting a jury to rest a conviction on his speech is a profound misapplication of this Court’s Humanitarian Law Project decision.”

The alternative basis for the jury’s guilty verdict — stressed in the Justice Department’s opposing brief filed last month — appeared to be the prosecutors’ evidence that Mehanna and his associates had made plans to travel overseas, to get terrorist training, and to actually engage in attacks on U.S. troops in Iraq.  One of the related crimes on which he was convicted was joining in a conspiracy to kill individuals in a foreign country.

The government has conceded that Mehanna’s translation activities were a factor in the jury’s verdict, but its version of the evidence characterizes Mehanna as considerably more linked to terrorism than his lawyers have argued.   Even his translation services, the Justice Department filing argued, were “performed at the request of a foreign terrorist organization” — the Al Qaeda network — and Mehanna knew that.

The site for which Mehanna provided translations, the government said, provided propaganda “in direct response to Al-Qaeda requests.”  And, it added, the translations done by Mehanna himself were “intended to further [that site's] goal of aiding Al-Qaeda.”

In any event, the government contended, the Court need not explore the dimensions of the First Amendment as it might apply to Mehanna’s translation activities, because the guilty verdict had a sufficient basis in his overseas activities in pursuit of violent terrorism.

In Mehanna’s reply brief, his attorneys renewed their claim that this case was a proper sequel to the Humanitarian Law Project ruling, and they argued that “it would be a curious irony” if free-speech cases were open to review by the Supreme Court before a law punishing such activities is actually applied, “but not when an actual verdict has sent an American to prison for seventeen years.”

The new brief also sought to contest much of the government’s interpretation of the evidence in the case — thus leaving the Court, if it were to grant review of his petition, to sort out whose interpretation is closer to what had actually been behind the jury’s verdict and to choose which portrayal of Mehanna himself is closer to the reality.

 

 

 

 

 

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Crime on the Internet: A difficult new question, SCOTUSblog (Aug. 14, 2014, 3:49 PM), http://www.scotusblog.com/2014/08/crime-on-the-internet-a-difficult-new-question/