Unprotected Solicitation of Crime or Protected Advocacy of Crime?

Marty Lederman (Balkinization) blogs about an indictment that raises very important First Amendment issues. Count 1 charges defendant with urging terrorist activity — that’s the solicitation vs. advocacy question. Count 2 charges defendant with linking to bombmaking instructions, with the intent that they be used for criminal purposes (an issue I discuss, among others, in my Crime-Facilitating Speech article). I read the indictment myself, and I think Marty’s analysis is an excellent explanation of the contested questions. An excerpt:

Is there a constitutional right to make posts to the Internet encouraging terrorism? To link to a bombmaking manual in hopes that some reader will use it for unlawful purposes?

The Department of Justice yesterday announced an indictment raising both of these important Free Speech Clause questions.

A grand jury in the Eastern District of Virginia has indicted 22-year-old Emerson Winfield Begolly, of New Bethlehem, Pa. — a former Penn State student and son of a Penn State instructor — for “soliciting” acts of terrorism on the Internet and for linking to bombmaking instructions online. U.S. Attorney Neil MacBride explains that Begolly is alleged of “repeatedly using the Internet to promote violent jihad against Americans.”

The indictment alleges two offenses: Count One alleges that Begolly repeatedly made posts to the Ansar al-Mujahidden Forum, an “Islamic extremist web forum used by its members to translate, promote and distribute jihadist propaganda,” in which he “suggested” the use of explosives against targets such as police stations, post offices, synagogues, military facilities, train lines, bridges, cell phone towers and water plants, and implored his readers that “Allah commands us to terrorize the [average American].” (There are further examples to like effect in the indictment.) These posts are alleged to have been unlawful “solicitations” of arson, terrorism and other offenses, in violation of 18 U.S.C. 373(a).

Count Two alleges that Begolly posted a link to a document entitled “The Explosives Course,” allegedly written by one of al Qaeda’s former top chemical and biological weapons experts. “The Explosives Course” contains information on, inter alia, how to manufacture explosives. The indictment alleges that in providing the link to the Course, Begolly thereby “distributed” information on the use of explosives “with the intent that the information be used for, and in furtherance of,” federal crimes of violence, in violation of 18 U.S.C. 842(p)(2)(A), which makes it unlawful to, inter alia, “distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence.”

Each count raises important, unresolved First Amendment questions.

Advocacy/Solicitation

The activity described in Count One–publicly urging, or in U.S. Attorney MacBride’s words, “promoting,” unlawful conduct–does not at first glance appear to be different from the sort of advocacy of unlawful conduct that is entitled to substantial First Amendment protection under the Brandenburg line of cases. Under that doctrine, such advocacy can be penalized only if the jury finds that it was “directed to inciting or producing imminent lawless actions and is likely to incite or produce that action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). The Begolly indictment does not allege either an intent to incite imminent lawless action, or a likelihood that the speech would produce such imminent lawlessness. Assuming the government could not prove such Brandenburg intent and likelihood beyond a reasonable doubt, Count One would appear to be very vulnerable to a First Amendment challenge.

The indictment, however, denominates the speech as “solicitation” prohibited by section 373(a), rather than as “advocacy” or “promotion.” Does this characterization change the First Amendment analysis? …

Distribution of Bombmaking Information

As the 1997 DOJ Report further explained, the First Amendment generally protects the publication of publicly available information, even where there is a chance or a likelihood that one or more readers may put such information to dangerous, unlawful use. So why can the government punish Begolly for linking to the “Explosives Course”? The theory, which the Report elaborates upon at length in section VI-B-1, is that publication of such information loses its First Amendment protection if it is done with the specific intent that the information be used unlawfully, even where the speaker does not (as in the classic aiding-and-abetting case) convey the information to a particular individual who then goes on to commit a crime.

The statute under which Begolly has been indicted for his linking was drafted in reliance upon the DOJ Report analysis. It requires the jury to find, beyond a reasonable doubt, that Begolly intended the explosives information in question would be “used for, or in furtherance of, an activity that constitutes a Federal crime of violence.” As the Report explains, “intent” in this context must mean “an actual, conscious purpose to bring about the specified result”: constructive intent, i.e., intent inferred solely by virtue of the fact that criminal offenses were a foreseeable result of the distribution of bombmaking information, is constitutionally insufficient. If the evidence supports the facts alleged in the indictment, the government may be able to prove such even such specific intent on Begolly’s part.

Which would tee up yet another important First Amendment question: Was the 1997 DOJ Report correct in concluding that such crime-facilitative intent is sufficient to remove the protection of the First Amendment? Eugene Volokh has argued that it shouldn’t be — see 57 Stan. L. Rev. 1095, 1179-95 (2005) — primarily on the ground that juries might find such intent even where it does not exist, and therefore such an intent test has too broad a chilling effect, “tend[ing] to deter speakers who fear that they might be assumed to have bad intentions.” Eugene acknowledges, however, that such an intent test has been approved not only by DOJ but also by “leading courts and commentators,” including most prominently the U.S. Court of Appeals for the Fourth Circuit in Rice v. Paladin Enters., Inc., 128 F.3d 233, 243, 266 (4th Cir. 1997). The Begolly case may turn out to be an important test of this lingering question….

Read Marty’s whole post for more.

UPDATE: Forgot to note that Prof. Robert Chesney (Lawfare) blogged about it first; his post is also much worth reading.