In July 2011, the US federal government filed a briefing in the case of Tarek Mehanna in opposition to a motion filed by his counsel to dismiss certain charges on First Amendment grounds. The Mehanna prosecution and subsequent conviction has drawn criticism for essentially declaring the act of translating Islamist media materials to be a criminal offense worthy of imprisonment. In the government’s briefing, the prosecution explained its reasoning behind its view that the defendant’s activities could not be considered constitutionally protected free speech:
Even if viewed as a content-based prosecution, [Holder v. Humanitarian Law Project] makes clear that even exclusively speech-related activities, when done for the purpose of supporting a FTO can be prosecuted. […] There is abundant evidence that the conspirators were not acting to independently advocate for the interests of Al Qa’ida — rather, they specifically agreed to provide support which they believed was needed and would benefit Al Qa’ida. HLP, 130 S. Ct. at 2722 (“The use of the word “to” indicates a connection between the service and the foreign group. We think a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.”).
With this, the government is arguably going further than the Supreme Court in the Humanitarian Law Project ruling. Remember that the court held that “independently advocating” for a designated terrorist organization was protected free speech but that any coordination with the terrorist group in question would make advocacy a criminal offense. In the Mehanna case, the prosecution asserted that direct contact and coordination with an illegal terrorist group is not even required to make advocacy criminal. While looking at the bolded text, one can’t help but wonder how an individual could “independently advocate” for al-Qaeda without believing such advocacy would benefit al-Qaeda. It is clear to me, at least, that the government is now splitting hairs in a way that is eroding the First Amendment.