US govt. doubles down on the criminalization of speech “coordinated” with terrorist groups

Previous context here and here.

US v. Tarek Mehanna (Court of Appeals for 1st Circuit, Case no. 12-1461), Brief for the United States, 5 April 2013, pp. 67-68:

Under HLP [Holder v. Humanitarian Law Project], translation services render “material support” if they are “directed to, coordinated with, or controlled by foreign terrorist groups.” 130 S.Ct. at 2728. […] Mehanna conspired and attempted to provide translation services that were “coordinated with” Al-Qa’ida. HLP used the term “coordinated” to describe “concerted” rather than “independent” activity. 130 S.Ct. at 2721-22. This distinction comports with the common understanding of the word. Webster’s Third New International Dictionary 501 (1993) (defining “coordinate” as “to bring into a common action, movement, or condition”). As in HLP itself, this case presents no occasion to determine the outer limits of “coordination” because the term easily extends to services rendered to an FTO [Foreign Terrorist Organization] at the organization’s own behest. See McConnell v. Federal Election Comm’n, 540 U.S. 93, 221-22 (2003) (“Congress has always treated expenditures made ‘at the request or suggestion of’ a [political] candidate as coordinated”). Whether or not they constitute political speech, translation services requested by an FTO are not “independent advocacy” on its behalf. Whether or not they constitute political speech, translation services requested by an FTO are not “independent advocacy” on its behalf.

In this case, the government has declared the act of translating Islamist militant propaganda to be a form of criminal “material support” if done in “coordination” with designated foreign terrorist groups. Thanks to the Supreme Court’s refusal to define the level of coordination needed before speech can be criminalized in the HLP ruling, the government is now embracing one of the broadest definitions possible, one that doesn’t even require direct contact or a mutually recognized relationship.

It is increasingly unclear how one could engage in “independent advocacy” on behalf of an FTO without being seen as “coordinating” with the FTO in the US government’s eyes. The reason is obvious enough: militant groups with political goals tend to request all the advocacy they can get. If someone in the US without any connections to Hamas were to start a website offering verbal support for Hamas and translating Hamas propaganda, it would be almost almost impossible to conclude that the individual was not “coordinating” its activities with Hamas using the US government’s definition of the term. This is because Hamas would most likely welcome and encourage verbal support from anyone in any part of the world, just as any other group would.

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