I’m on the road right now, and won’t have the time to blog further about this, but I suspect that some of our readers have followed the case — especially given the defendant’s First Amendment arguments — so I thought I’d note today’s First Circuit opinion. (Note that the title of the post is an oversimplification; Mehanna was charged with a variety of related crimes.) [UPDATE: Prof. Marty Lederman (Just Security) has more on the case.] Here’s a very brief excerpt that offers a general summary of the court’s First Amendment analysis:
[T]he district court’s instructions captured the essence of the controlling decision in [Holder v. Humanitarian Law Project], where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is “in coordination with foreign groups that the speaker knows to be terrorist organizations.” If speech fits within this taxonomy, it is not protected. This means that “advocacy performed in coordination with, or at the direction of,” [a Foreign Terrorist Organization] is not shielded by the First Amendment. The district court’s instructions tracked the contours of this legal framework. The court appropriately treated the question of whether enough coordination existed to criminalize the defendant’s translations as factbound and left that question to the jury.
I thought I’d also pass along something I wrote along similar lines three years ago, after Humanitarian Law Project was decided:
[Consider a fact pattern that] comes from the treason-by-propaganda cases, such as the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this “Vision of Invasion” broadcast while working for the Nazis:
This program was a radio play of an hour’s length broadcast in the month before the Allied invasion of Europe. The scenes alternated