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CARMEN ORTIZ

CRIMINALIZING SPEECH IN THE NAME OF FIGHTING TERRORISM

In a year marked by numerous instances of oppression and repression, the disturbing case of Tarek Mehanna leads the list. Last year the 29-year-old Sudbury (MA) pharmacist was convicted of federal terrorism charges — not because of what he did, but because of what he said, wrote, and translated. In April, he was sentenced to more than 17 years in prison.

Thus our top Muzzle goes to US Attorney Carmen Ortiz, whose office ran roughshod over Mehanna's constitutional rights and made a mockery of the principle that the most loathsome speech needs the highest degree of protection. Getting an assist is US District Court Judge George O'Toole, who could have stood up to Ortiz but chose instead to ignore her contempt for the First Amendment.

Terrorism, obviously, should not be taken lightly, and we can't ignore evidence that Mehanna traveled to Yemen in 2004 to receive training at a jihadi terrorist camp. But the trip came to naught, and the prosecution's case against him rested almost entirely on his activities as a propagandist for Al Qaeda.

As Yale political scientist Andrew March wrote in the New York Times, "Much of Mr. Mehanna's speech on Web sites and in IM chats was brutal, disgusting, and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan, and Somalia. In one harrowing IM chat, which the government brought up repeatedly during the trial, he referred to the mutilation of the remains of American soldiers in response to the rape of a 14-year-old Iraqi girl as 'Texas BBQ.' He wrote poetry in praise of martyrdom. But is the government right that such speech, however repulsive, can be criminalized as material support for terrorism?"

March's answer — and ours — is no. Because as he, the ACLU, and others have pointed out, the 1969 US Supreme Court case of Brandenburg v. Ohio guarantees that mere speech, no matter how shocking and vile, is protected by the First Amendment unless it poses a serious, imminent threat of inciting violence. That's why Clarence Brandenburg, who had been convicted of leading a Ku Klux Klan rally in Ohio, was cleared. That's why neo-Nazis were given permission to march through the largely Jewish community of Skokie, Illinois, in the late 1970s.

"Our goal is to do justice and do whatever we can to keep the people of this commonwealth and our country safe," Ortiz said in a public statement after the sentencing. "We are not prosecuting individuals because they are Muslim. We prosecute people because they engage in criminal conduct, who are violent, who are committing crimes."

Based on the evidence, though, it is impossible to conclude that Mehanna's crimes consisted of anything other than what he said.

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