Post terrorist pamphlet online, get 17 years in prison - UPDATED

The First Amendment apparently has a 9/11 exception.

... on April 12, a 29-year old citizen from Sudbury, Massachusetts named Tarek Mehanna was sentenced to seventeen and a half years in prison for translating “39 Ways [to Serve & Participate in Jihad]” and helping to distribute it online.

As Anthony Lewis was wont to ask in his New York Times columns, “Is this America?” Seventeen and a half years for translating a document? Granted, it’s an extremist text. Among the “39 ways” it advocates include “Truthfully Ask Allah for Martyrdom,” “Go for Jihad Yourself,” “Giving Shelter to the Mujahedin,” and “Have Enmity Towards the Disbelievers.” (Other “ways to serve,” however, include, “Learn to Swim and Ride Horses,” “Get Physically Fit,” “Stand in Opposition to the Disbelievers,” and “Expose the Hypocrites and Traitors.”) But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document? After all, news organizations and scholars routinely translate and publicize jihadist texts; think, for example, of the many reports about messages from Osama bin Laden.

Thank goodness Obama won the election, so civil liberties are safe again.

... Brandenburg v. Ohio:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Hess v. Indiana:

at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech.

Holder v. Humanitarian Law Project:

All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations.

Abrams v. United States (Holmes, J., dissenting):

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possible could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

"A republic, if you can keep it," said Franklin.

(I have always loved that last line of Holmes's dissent.) ... In comments, NMC notes that at least part of the basis for the prosecution rested not on speech alone, but on a bungled attempt to join the Iraq insurgency. And Jane provides a link to Andrew March in the NYT:

As a political scientist specializing in Islamic law and war, I frequently read, store, share and translate texts and videos by jihadi groups. As a political philosopher, I debate the ethics of killing. As a citizen, I express views, thoughts and emotions about killing to other citizens. As a human being, I sometimes feel joy (I am ashamed to admit) at the suffering of some humans and anger at the suffering of others. At Mr. Mehanna’s trial, I saw how those same actions can constitute federal crimes. Because Mr. Mehanna’s conviction was based largely on things he said, wrote and translated. Yet that speech was not prosecuted according to the Brandenburg standard of incitement to “imminent lawless action” but according to the much more troubling standard of having the intent to support a foreign terrorist organization. * * * Citing no explicit coordination with or direction by a foreign terrorist organization, the government’s case rested primarily on Mr. Mehanna’s intent in saying the things he said — his political and religious thoughts, feelings and viewpoints. The prosecution’s strategy, a far cry from Justice Roberts’s statement that “independent advocacy” of a terror group’s ideology, aims or methods is not a crime, produced many ominous ideas. For example, in his opening statement to the jury one prosecutor suggested that “it’s not illegal to watch something on the television. It is illegal, however, to watch something in order to cultivate your desire, your ideology.” In other words, viewing perfectly legal material can become a crime with nothing other than a change of heart. When it comes to prosecuting speech as support for terrorism, it’s the thought that counts.