In 2010, the Supreme Court of the United States decided Holder v. Humanitarian Law Project, and last week, the First Circuit became the first federal appellate court to apply the holding, and "[t]he results are remarkable," says Harvard Law Professor Noah Feldman in his article for Bloomberg.
Holder v. Humanitarian Law Project
Dubbed the "most important free-speech case in 20 years" by Professor Feldman, the Holder Court held that normally protected political speech may be criminalized if it's "coordinated" with groups, designated by the United States, as terrorist organizations. The Supreme Court found that the plaintiffs' First Amendment rights of free speech were outweighed by the Government's compelling interest in preventing terrorism.
Terrorism and Protected Speech
In the present case, Tarek Mehanna, a U.S. citizen, traveled to Yemen to join a terrorist training camp. Unable to find a training camp, he returned to the United States, and began translating al-Qa'ida materials, and materials supportive of jihad and/or al-Qa'ida, from Arabic into English. He posted the translations on a website, at-Tibyan, an online community of jihad and al-Qa'ida sympathizers.
Mehanna was tried and convicted of three counts related to making false statements, and four counts related to terrorism. He was sentenced to 17.5 years imprisonment, and he appealed his conviction, and sentence.
Walking the Fine Line
At the very outset, the First Circuit noted: "Sometimes, those efforts [to combat terrorism] 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."
On appeal, determining whether the translations were "coordinated" was at the heart of finding criminal liability under Holder. However, the First Circuit, according to Professor Feldman, "ducked the issue." Because the court found that the trip to Yemen alone was sufficient to prove conspiracy to materially support terrorism, it didn't have to decide whether making and uploading the translations alone would have counted as "coordinated" action.
The First Circuit certainly did not hold that the mere translation and uploading of materials was "coordinated action" under 18 U.S.C. § 2339B, yet it didn't say that it wasn't either. The court essentially left the door open for the government to make that argument in a future case.
While courts are usually hesitant to answer more than they need to, it would have been interesting to see how far appellate courts will take the Holder decision. For now, we'll have to wait and see.