Mehanna Prosecution Will Test Meaning of Incitement and Material Support in On-line Context

Last week the trial of Tarek Mehanna began in Boston. Mehanna is charged with providing material support for terrorists,   Mehanna traveled to Yemen in 2006, allegedly to obtain Al Qaeda training, but never actually participated in Al Qaeda programs while there.  Upon returning to the U.S., Mehanna  created a blog on which he discussed U.S. involvement in the Arab world, his beliefs about Islam, and the statements of Osama bin Laden.  Federal prosecutors contend that, through his blog posts, which included translations of  numerous Arabic texts and repostings of Al Qaeda videos with English subtitles he supplied, Mehanna became an American media wing of the terrorist group and engaged in calls to action that qualify as incitement of terrorism. Coverage of the case is provided by NPR, the Guardian, and the Boston Globe. 

On the Lawfare blog, Prof. Robert Chesney has posted the text of Mehanna’s Request for Preliminary Instruction to the Jury, to be given before trial proceedings began.The requested instructions present a general cautionary reminder of the right to hold offensive viewpoints and to speak on matters of public concern, and a statement of the Brandenburg incitement standard.  Mehanna also requested this instruction as to the application of the material support statute to his on-line speech:  

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.

The Supreme Court’s Holder v. Humanitarian Law Project ruling emphasized the constitutional and statutory significance of the difference between wholly independent advocacy (there as to how to use international law and the humanitarian relief process), and speech (such as training by experts) done in coordination with or under the direction of a designated terrorist organization. As Prof. Chesney notes, the Mehanna prosecution presents a test of how that distinction can and should be brought to bear in assessing Mehanna’s on-line activities. In addition, the case raises interesting questions about how to calibrate the Brandenburg incitement standard when it is applied to on-line speech.

 JFB