Mark Joseph Stern writes: In the spring of 2005, Tarek Mehanna began translating radical Arabic books and videos into English for the website At Tibyan. The materials had an undeniable flavor of terrorism, encouraging readers to join al-Qaida and kill American soldiers in Iraq. But even the government acknowledges that Mehanna never translated anything at the direct behest of al-Qaida operatives—which is why it’s rather surprising that the government successfully prosecuted him for providing “material support” to a terrorist organization and sentenced him to 210 months in prison.
Everybody agrees that Mehanna supported al-Qaida’s cause; At Tibyan is a fairly popular terrorist forum, and Mehanna translated its content with the clear intention of swaying opinion toward the jihadist cause. But translating, publishing, and praising ideological texts, no matter how morally vile, is generally considered to be a basic free speech activity. Everyone knows that the First Amendment protects translations of Mein Kampf. Why did Mehanna’s translation of jihadist hosannas land him behind bars?
That’s the question Mehanna is asking the Supreme Court, which will decide whether to take his case later in September. If the justices do agree to review Mehanna’s conviction, it’ll be wading into a constitutional controversy at once timeless and novel. The court has long recognized that cheerleading for terrorism may eventually cross the line from free speech to a criminal act. But the Internet’s ability to spread ideas and connect like-minded people may now force the justices to reconsider that boundary. And if the court lets Mehanna’s conviction stand, it may wind up drawing the line dangerously close to the kind of Internet activity some of us engage in without a second thought.
The Supreme Court has been grappling with the question of dangerous speech for as long as America has been attempting to suppress dissent in the name of national security — that is, pretty much forever. For our first century or so, nobody thought that criminalizing anti-American speech raised a real First Amendment concern. But in a 1919 case called Abrams v. United States, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, cracked the orthodoxy wide open, issuing a stunning dissent from the conviction of a revolutionary anarchist who advocated a violent overthrow of the U.S. government. Holmes described a constitutional command to tolerate anti-government speech, explaining that censorship of “opinions that we loathe and believe to be fraught with death” is unacceptable unless those opinions “imminently threaten” the country’s safety.
Today, Holmes’ view is more or less the law. But that hasn’t kept Congress from passing censorship laws on the theory that a certain group’s speech qualifies as a clear and present danger to the country. [Continue reading…]