Does translating “radical” Arab texts and videos amount to material support for terrorism? That is the question that would face the Supreme Court, should they decide to take up Mehanna v. United States. (For full background and facts on the case, see our extensive prior coverage here.)
The basic facts of Mehanna are simple. The 1996 “material support” provision, 18 U.S.C. § 2339, criminalizes the providing of “material support or resources” to a foreign terrorist organization (FTO). In turn, providing “material support or resources” can mean the providing of “any property . . . or service” to the FTO. In Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the Court held that speech activities may be a “service” constituting “material support” for terrorism. The Court also required that the speech activities be “coordinated” with a FTO. But the Court did not further define what type of coordination, or how much of it, was needed to fulfill the service prong of § 2339.
Which brings us to the case of Tarek Mehanna. He provided English translations of “radical” Arab texts and videos for “At Tibyan,” an online forum that FTOs frequent. The government succeeded in convicting him under the material support provision, and the First Circuit affirmed the conviction. Mehanna petitioned for a writ of certiorari; now, all the briefs are in and have been distributed for the Supreme Court’s conference today. Below, I review the arguments advanced by the parties in their cert-stage briefs.
Mehanna's petition opens with a statutory argument---that his actions were not criminal under any reasonable definition of the word “coordination.” Noting that he only translated the texts—at his own discretion—and that the translations were not committed, directed, paid for by, performed in concert with, or presented to any FTO, Mehanna argues that he could not possibly have “coordinate[d]” with any FTOs. Mehanna then criticizes the government’s view of the coordination requirement in Humanitarian Law Project as subjecting anyone who associated with, or even merely talked to, people on the forum to criminal liability under § 2339.
Second, Mehanna argues that the lower courts’ application of the coordination requirement violates his rights of speech, religion, and association. Relying on cornerstone First Amendment doctrine prohibiting the regulation or criminalization of speech and association on the basis of content, Mehanna reemphasizes that he merely translated the texts at his own discretion and disseminated them to other users on the internet. Mehanna concludes: if the government’s low bar for what actions and speech constitute “coordination” is allowed to stand, it would impose unconstitutional sanctions for merely talking or associating with people on the internet.
The government’s response begins with a re-framing, one meant to discourage the Justices from hearing the case: it is not about speech, the government says, but rather about concrete actions. Noting that Mehanna had traveled to Yemen, the government points out that the First Circuit upheld Mehanna’s conviction on that basis, and not solely in light of Mehanna’s translations. As such, because the First Circuit “sidestepped” the issue of whether translations alone can constitute sufficient coordination and material support, the government argues that the Court need not “resolve a fact-specific and first-impression constitutional issue that was not addressed below.”
The government then turns to the merits. Disputing Mehanna's claim that coordination with a FTO cannot occur in the absence of direct contact, the government analogizes to criminal law: a criminal cannot escape liability merely by acting through an intermediary. As such, even if there is no evidence that Mehanna acted at the direction of any FTOs, his conduct still went far beyond mere “association”---for all along, he knew his actions would materially benefit various FTOs that were present in the online forum where Mehanna disseminated translated material.
Mehanna opens his reply brief with a direct challenge to the government's re-framing: "This petition is about political and religious Internet speech." Brushing aside the government's contention that he was found guilty on the basis of his actions, Mehanna continues to argue that he was found guilty mainly on the basis of protected First Amendment speech. To bolster support, Mehanna digs deep into the factual record to provide context for various incidents that the government claims crossed the line from protected speech to unprotected actions. For instance, in response to the government's assertion that he "edited and translated a large volume of al-Qaeda books and videos," Mehanna notes that he sent only one translation on the request of a third party, but did not forward it to any FTO. That lone incident, Mehanna argues, far from proves coordination for purposes of a material support conviction. The petitioner concludes with a claim that the government, the lower courts, and the jury confused coordination with "common viewpoint." The Court therefore must grant certiorari, lest the government---by advancing a position characterized by the First Circuit as "breathtaking in its scope"---continue to prosecute "ideological" speech as a crime.