an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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? The Department of Justice itself has suggested not. In a 1997 Report [disclosure: I worked on the Report], DOJ explained that although Congress might have intended that the "solicitation" to unlawful conduct proscribed by section 373(a) would be construed broadly to cover any situation "'where a person seriously seeks to persuade another person to engage in criminal conduct,'" nevertheless, "[i]n the prototypical solicitation case, the 'persuasion' is accompanied by some form of inducement, such as a money payment, or a threat" -- categories of cases that "raise no First Amendment issues." However, as DOJ further explained, "insofar as Congress also intended § 373 to cover cases of 'persuasion' taking the form of mere advocacy or urging of unlawful action -- without any threat or inducement -- many such cases could be subject to significant First Amendment constraints under the Brandenburg doctrine." [In support, the DOJ Report cited District of Columbia v. Garcia, 335 A.2d 217, 224 (D.C.) (distinguishing between constitutionally protected advocacy and "the act of enticing or importuning on a personal basis for personal benefit or gain"), and People v. Rubin, 158 Cal. Rptr. 488, 491 (Cal. Ct. App. 1979) (discussing the distinction between "general advocacy of crime" and solicitation of crime accompanied by "offer of reward").] As Bobby Chesney speculates, the sort of "open-ended, untargeted advocacy of terrorism" alleged in the Begolly indictment "might be viewed as different in kind" from the "typical solicitation scenario" envisioned by Congress, i.e., "the guy who tries to hire a hitman," and "more akin to the traditional Brandenburg scenario."
So why does DOJ now apparently believe that such public advocacy of unlawful conduct can escape First Amendment scrutiny by virtue of being called a "solicitation"? Perhaps it is relying upon dictum in the Sheikh Rahman case, 189 F.3d 88, 117 (2d Cir. 1999), in which the court of appeals wrote that "[w]ords . . . that instruct, solicit, or persuade others to commit crimes of violence—violate the law and may be properly prosecuted regardless of whether they are uttered in private, or in a public speech, or in administering the duties of a religious ministry." This dictum about public "persua[sive]" speech later became the basis for the indictment -- which the district court refused to dismiss on First Amendment grounds -- in United States v. Sattar, where the alleged solicitation consisted of a generally issued fatwa calling upon “brother scholars everywhere in the Muslim world to do their part and issue a unanimous fatwah that urges the Muslim nation to fight the Jews and to kill them wherever they are.” 272 F.Supp.2d 348, 374 (S.D.N.Y. 2003). [It appears that Sattar did not appeal his solicitation conviction -- see 590 F.3d at 112.]
It is not obvious how the so-called "solicitation" in a case such as Sattar (and in Begolly) is materially different from the sort of public "advocacy" at issue in Brandenburg for purposes of the Free Speech Clause. (The Begolly indictment repeatedly uses verbs such as "encouraging" and "suggesting.") Whether there is such a constitutionally meaningful distinction will likely be a significant question for decision in the Begolly case.
I should note one possible wrinkle: It's not clear from the indictment to what extent the Ansar al-Mujahidden Forum, where Begolly did his posting, was open to the public. (The indictment refers to the forum's "members," but also characterizes it as a "popular" and "internationally-known" site.) It's possible that it was a selectively available site, viewable only by a discrete audience, whose identities might or might not have been known to Begolly. It's not clear whether the size and public/private, or known/unknown, nature of the audience matters for Brandenburg purposes. The DOJ Report notes Professor Kent Greenawalt's argument "that the Brandenburg requirements (such as the requirement of 'imminent' criminal conduct) should be relaxed in the case of private, nonideological solicitations to crime, even where there is no inducement or threat, but only persuasion. Kent Greenawalt, Speech, Crime, and the Uses of Language 261-65 (1989)." The Report goes on to say, however, that "[w]hile this argument has some force, we are not aware that any court has yet endorsed it."
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.
But before the court reaches the First Amendment question, Count Two also may raise a statutory question, namely, whether providing a link to a document containing bombmaking information constitutes the "distribut[ion]" of such information, as section 842(p)(2)(A) requires. Posted
by Marty Lederman [link]