RICK HOLMES: Free speech on trial
Image Caption: When
Tarek Mehanna personally addressed the court he described the moment
when he was approached by two federal agents who said he could do things
the easy way or the hard way: if he chose the easy way, he would never
see the inside of a cell. – from this article
BOSTON — On the outside of the John Joseph Moakley Courthouse,
quotes from America’s founding documents are etched in stone. Inside,
they are applied to people’s lives.
“Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press…” reads one of the square tablets set into the
wall of the handsome edifice on Boston Harbor.
Inside, three appellate judges were hearing arguments last Tuesday in the appeal of Tarek Mehanna, a pharmacist from Sudbury convicted last year of providing “material support” for al-Qaida.
The case against Mehanna tests how free our speech is in 21st century America. He’s not charged with plotting or carrying out any terrorist attack. A religious scholar with strong opinions on Islam and U.S. foreign policy, Mehanna talked with friends about the obligations of jihad. He chatted online about his opposition to the U.S. invasions of Iraq and Afghanistan. He visited extremist websites and watched videos made by terrorists. He translated religious and political documents from Arabic to English, and posted them online. He expressed himself, saying things many Americans would find offensive or hateful.
To the government, that’s not free speech, that’s providing material support to a terrorist organization, as the “media wing of al-Qaida.”
To Mehanna’s defenders, rhetorical support is not “material support.” The First Amendment isn’t about protecting speech that doesn’t bother anybody; it’s there to protect unpopular, controversial speech.
Mehanna is also charged with going to Yemen, to connect with a terrorist training camp, prosecutors say. Mehanna contends he was seeking religious instruction. In any event, there’s no allegation he ever met a real terrorist. He looked around, didn’t much like the place, talked to his dad on the phone and flew back to Boston.
There’s no law against visiting Yemen, of course. But if you go with the wrong intent, prosecutors contend, it’s an act of conspiracy. That, too, deserves to be tested against the Constitution’s guarantees.
Tuesday’s hearing was short, with each side given just 20 minutes to underline key points of contention and answer questions from the three judges.
The arguments focused on the kind of fine distinctions courts have devised to calibrate how the broad principles carved in stone are applied. Mehanna’s team says prosecutors unfairly prejudiced the jury by piling on images of the World Trade Center towers crumbling and terrorists beheading innocent people — acts that have nothing to do with the charges against Mehanna.
Inside, three appellate judges were hearing arguments last Tuesday in the appeal of Tarek Mehanna, a pharmacist from Sudbury convicted last year of providing “material support” for al-Qaida.
The case against Mehanna tests how free our speech is in 21st century America. He’s not charged with plotting or carrying out any terrorist attack. A religious scholar with strong opinions on Islam and U.S. foreign policy, Mehanna talked with friends about the obligations of jihad. He chatted online about his opposition to the U.S. invasions of Iraq and Afghanistan. He visited extremist websites and watched videos made by terrorists. He translated religious and political documents from Arabic to English, and posted them online. He expressed himself, saying things many Americans would find offensive or hateful.
To the government, that’s not free speech, that’s providing material support to a terrorist organization, as the “media wing of al-Qaida.”
To Mehanna’s defenders, rhetorical support is not “material support.” The First Amendment isn’t about protecting speech that doesn’t bother anybody; it’s there to protect unpopular, controversial speech.
Mehanna is also charged with going to Yemen, to connect with a terrorist training camp, prosecutors say. Mehanna contends he was seeking religious instruction. In any event, there’s no allegation he ever met a real terrorist. He looked around, didn’t much like the place, talked to his dad on the phone and flew back to Boston.
There’s no law against visiting Yemen, of course. But if you go with the wrong intent, prosecutors contend, it’s an act of conspiracy. That, too, deserves to be tested against the Constitution’s guarantees.
Tuesday’s hearing was short, with each side given just 20 minutes to underline key points of contention and answer questions from the three judges.
The arguments focused on the kind of fine distinctions courts have devised to calibrate how the broad principles carved in stone are applied. Mehanna’s team says prosecutors unfairly prejudiced the jury by piling on images of the World Trade Center towers crumbling and terrorists beheading innocent people — acts that have nothing to do with the charges against Mehanna.
There’s a rule that governs that question: Rule 403 of the Federal
Rules of Evidence. The measure of whether the trial judge let
prosecutors go too far, Judge Bruce Selya, the senior member of the
panel, said, is “have they so poisoned the well that the outcome of the
trial was affected?”
The judges also questioned whether the judge should have allowed “special verdicts,” which would have allowed the jury to distinguish whether its vote to convict was based on Mehanna’s actions — the trip to Yemen — or his advocacy. The judge’s denial of that defense motion makes the issue of the First Amendment’s protections inescapable.
“This is a hard case,” Selya said at the hearing’s close, referring to the legal maxim that hard cases make bad law. A “hard case” is one involving extreme circumstances that could distort the application of a law aimed at more typical cases.
What “bad law” could this “hard case” make? Would upholding the conviction establish a new acceptance of the criminalization of free speech in terrorism cases? Would overturning it hurt terrorism prosecutions? Would remanding the case back to the trial court on narrow grounds — like the lack of a “special verdict” — avoid setting a precedent?
While the wheels of justice slowly turn, Tarek Mehanna sits alone in a federal penitentiary, several years into a 17-year sentence.
The oral arguments heard Tuesday weren’t on TV. They didn’t spur wall-to-wall TV coverage. Truth be told, the show wasn’t nearly as entertaining as the George Zimmerman trial or as dramatic the other show playing out at the Moakley Courthouse, the trial of Whitey Bulger.
But what was at stake in the courtroom on the seventh floor was far more important, and not just for Tarek Mehanna. There, three judges considered how the war on terror is taking a chisel to the constitutional rights carved in stone on the courthouse wall. Attention must be paid.
Rick Holmes, opinion editor for the MetroWest Daily News, Framingham, blogs at Holmes & Co. He can be reached at rholmes@wickedlocal.com.
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The judges also questioned whether the judge should have allowed “special verdicts,” which would have allowed the jury to distinguish whether its vote to convict was based on Mehanna’s actions — the trip to Yemen — or his advocacy. The judge’s denial of that defense motion makes the issue of the First Amendment’s protections inescapable.
“This is a hard case,” Selya said at the hearing’s close, referring to the legal maxim that hard cases make bad law. A “hard case” is one involving extreme circumstances that could distort the application of a law aimed at more typical cases.
What “bad law” could this “hard case” make? Would upholding the conviction establish a new acceptance of the criminalization of free speech in terrorism cases? Would overturning it hurt terrorism prosecutions? Would remanding the case back to the trial court on narrow grounds — like the lack of a “special verdict” — avoid setting a precedent?
While the wheels of justice slowly turn, Tarek Mehanna sits alone in a federal penitentiary, several years into a 17-year sentence.
The oral arguments heard Tuesday weren’t on TV. They didn’t spur wall-to-wall TV coverage. Truth be told, the show wasn’t nearly as entertaining as the George Zimmerman trial or as dramatic the other show playing out at the Moakley Courthouse, the trial of Whitey Bulger.
But what was at stake in the courtroom on the seventh floor was far more important, and not just for Tarek Mehanna. There, three judges considered how the war on terror is taking a chisel to the constitutional rights carved in stone on the courthouse wall. Attention must be paid.
Rick Holmes, opinion editor for the MetroWest Daily News, Framingham, blogs at Holmes & Co. He can be reached at rholmes@wickedlocal.com.
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