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Mehanna, Online Incitement as Material Support, and the First Amendment

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Friday, October 28, 2011 at 12:58 PM

I posted a few days ago regarding the Mehanna prosecution, noting that the defense requested a jury instruction on First Amendment issues.  It turns out this was a request for three preliminary instructions.  The 7-page document is posted here.  Instruction 1 would generally caution the jury regarding the right to hold noxious viewpoints, and includes a statement of the Brandenburg statement regarding speech that incites lawless action.  The second emphasizes special protection for speech concerning public issues.

The third is the most interesting.  It concerns the 1996 material support statute, 18 USC 2339, and argues as follows:

To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request. The statute does not prohibit someone from vigorously promoting and supporting the political goals of the group. This is considered independent advocacy, and is protected by the First Amendment.

The only acts prohibited are ones where the individual is told by the terrorist group itself to do the specific act, or told to coordinate the specific act with the terrorist group, or is paid or hired to provide a specific service to the terrorist act. It is not a crime if a person independently does an act that he believes will be supportive of the terrorist group or will advance its goals and objectives. In other words, the person must have a direct connection to the group and be working directly with the group for it to be a violation of the statute. I emphasize that independent advocacy for the group is not a crime because it is protected by the First Amendment to the Constitution.

Is this a valid instruction?

The final part, stating that independent advocacy does not come within the scope of the statute is correct. 18 USC 2339B(h) states that “[n]o person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control…,” and that [i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”  The Supreme Court’s opinion in Holder v. Humanitarian Law Project confirms that wholly-independent advocacy of a designated group’s agenda cannot be prosecuted.

The interesting question is whether it is correct to say that no form of material support counts unless provided (i) at the group’s direction, (ii) in coordination with the group, or (iii) upon direct request from the group.  That may be overstated, depending on how one construes that language.  Would it cover a person who decides on his own initiative to send $10,000 to Hezbollah, unsolicited?  If not, I think there is a problem with the insruction.

As to what it all means for this case, I’m not familiar enough with what precisely is alleged againt Mehanna to say for sure.  More specifically, it’s not clear to me what the prosecution will attempt to prove in terms of the material support Mehanna allegedly provided. It does seem likely, though, that this case will become an important precedent in terms of both incitement doctrine and the scope of 2339B in relation to online activities.

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