The Poisonous Fruit of Holder v. Humantarian Aid Project

Andrew March has an excellent piece about the suppression of speech that has been made possible by Congress, the Obama administration, and the Supreme Court’s regrettable decision in Holder v. Humantarian Aid Project:

The government’s indictment of Mr. Mehanna lists the following acts, among others, as furthering a criminal conspiracy: “watched jihadi videos,” “discussed efforts to create like-minded youth,” “discussed” the “religious justification” for certain violent acts like suicide bombings, “created and/or translated, accepted credit for authoring and distributed text, videos and other media to inspire others to engage in violent jihad,” “sought out online Internet links to tribute videos,” and spoke of “admiration and love for Usama bin Laden.” It is important to appreciate that those acts were not used by the government to demonstrate the intent or mental state behind some other crime in the way racist speech is used to prove that a violent act was a hate crime. They were the crime, because the conspiracy was to support Al Qaeda by advocating for it through speech.

As March notes, it is essentially impossible to square this kind of prosecution with Brandenberg v. Ohio, which had been the controlling political speech case for more than 4 decades (and also involved advocacy for a terrorist organization.) It is now well-settled that political speech can only be prosecuted when it is (to use William O. Douglas’s phrase) “brigaded” with unlawful conduct or action. If the allegations are true, the Mehanna’s speech is despicable, but it would also appear to be protected by the First Amendment.