Terrorist Propaganda or Political Speech?

In Ireland we are quite accustomed to our freedom of expression being significantly limited where that freedom is abused. This results from the express limitations in both Bunreacht na hÉireann (the Irish Constitution) and Article 10 of the European Convention on Human Rights. International law also prohibits propaganda to war as our colleague Michael Kearney has explained and examined in detail in his book The Prohibition of Propaganda for War in International Law (2007, OUP).

In the United States, however, the constitutional protection of free speech (First Amendment), while not absolute, is certainly broader than is the case in Ireland or indeed under the ECHR. This makes the appeal argument by counsel for Al Hamza Ahmad Suliman al Bahlul — the only person currently in Guantánamo Bay to have been convicted of an offence relating to the ‘War on Terrorism’ — all the more interesting.

Counsel for al Bahlul (it is unclear to what extent the appellant is actively participating in the appeal given that he boycotted much of the original proceedings, announcing his intention by holding the sign at right at one hearing (credit)) is arguing that the propaganda videos al Bahlul is alleged to have released as personal assistant the media secretary to Osama bin Laden are in fact constitutionally protected political speech and, as a result, can not be criminalised. The full argument is set out in the Appeal Brief. As the brief documents, the US Government conceded that the video at issue presented a political argument, which the appellant is interpreting as meaning that the speech involved was political speech.

The argument is interesting although, on the face of it, not that likely to succeed as a superior government interest can override the first amendment rights (United States v O'Brien (1968) -- holding that criminalisation of the burning of draft cards was constitutionally permissible) and words that create an immediate risk to national security do not enjoy constitutional protection. In addition, whether the presentation of a political argument necessarily means that the means of its presentation counts as political speech raises interesting question-does the nature of the content dictate the nature of the speech?

Of most interest to people who are interested in the interactions between law and counter-terrorism, however, may well be how the US courts deal with interesting questions that are likely to arise on how political speech and propaganda can be distinguished from one another. This is especially so as this may well mirror the well-trodden 'terrorist' v 'liberation fighter' v 'political activist' etc... terrain that national security lawyers are very well acquainted with!

(Cross posted at HumanRightsinIreland)

On June 11

On this day in ...
... 1993, in Wisconsin v. Mitchell, the U.S. Supreme Court upheld a state statute that enhanced the otherwise-maximum penalty for offenses held to be hate crimes. In an opinion by Chief Justice William H. Rehnquist, the Court held that adding on to the punishment at issue, aggravated battery, was not “aimed at conduct unprotected by the First Amendment”; rather, what was ““single[d] out for enhancement” was “bias inspired conduct because this conduct is thought to inflict greater individual and societal harm.”
... 1880, U.S. Rep. Jeannette Rankin (R-Mont.) (right), a suffragist and peace activist who in 1916 became the 1st woman elected to Congress, was born in Missoula, Montana. (photo credit) In 1912, she began working as the field secretary of the National American Woman Suffrage Association, and was among the thousands of suffragists at the 1913 suffrage march in Washington, D.C. As a representative, she strongly opposed and voted against U.S. involvement in World War I. Having lost re-election in 1918, Rankin ran again in 1940, and won on an antiwar platform. She was the only representative to vote against U.S. entry into the war after the bombing of Pearl Harbor, saying,

'As a woman I can’t go to war, and I refuse to send anyone else.'

Although Rankin did not run running for re-election in 1942, she remained politically active for the rest of her life. She was the 1st vice-president of the American Civil Liberties Union, and in January 1968, when she was 87, she led the Jeannette Rankin Brigade, a 5,000-person strong march on Washington to protest the Vietnam War. She died in 1973.

(Prior June 11 posts are here and here.)

On April 7

On this day in ...
... 1803, Flore-Celestine-Therèse-Henriette Tristan-Moscoso was born in Paris, France. A member of the working-class, she worked in a print shop as a girl. Eventually she became active in workers' rights causes, the the death-penalty abolition movement, and in the feminist movement, arguing for divorce and against gender constraints." Writing under the pen name Flora Tristan (left), she produced a variety of works -- "travel memoirs, a utopian novel, and assorted social commentary." Today the woman who died at age 41 (4 years before her daughter gave birth to Tristan's grandson, who would become the renowned painter Paul Gauguin) is

recognized as a thinker whose works bridged the gap between 'utopian' and 'scientific' socialism and helped lay the foundations for modern feminist theory.

... 1969 (40 years ago today), in Stanley v. Georgia, the Supreme Court held unanimously that the 1st Amendment to the U.S. Constitution forbids a state from subjecting a person who possesses of obscene materials within the home to criminal prosecution and punishment. The Opinion of the Court by Justice Thurgood Marshall contained this oft-quoted passage:

Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.

The ruling did not disturb precedent that permitted the distribution or sale of obscenity -- leaving all to puzzle by what legal path such materials might find their way into anyone's home.

(Prior April 7 posts are here and here.)

On June 21

On this day in ...
... 1953 (55 years ago today), Benazir Bhutto was born in Karachi, Pakistan. Bhutto (left) would twice serve as her country's Prime Minister. Last December, an assassin's bullet ended her 3d bid for that position. Prior IntLawGrrls posts here.
... 1973 (35 years ago today), reviewing a conviction for unsolicited mailing of sexually explicit materials, the U.S. Supreme Court decided Miller v. California. By a vote of 5-4, it held that the 1st Amendment to the Constitution does not protect "obscenity"; that is, material that, in the view of jurors: (1) would be seen, "as a whole," by "the average person, applying contemporary community standards," to "appea[l] to the prurient interest"; (2) "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) "taken as a whole, lacks serious literary, artistic, political, or scientific value."

On "Internet Jihad"

The case of Malika El Aroud, which Naomi Norberg sets out concisely in her post above, may not turn out to be a question of laws regarding protected speech as much as it is a question of proof.
Incitement to certain violence -- genocide -- is deemed a crime by all the 100-plus states parties to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Numerous individuals are now in prison following judgments of conviction for incitement rendered by the International Criminal Tribunal for Rwanda -- judgments that establish a jurisprudence of incitement.
The international jurisprudence has tended to be less defendant-friendly than that in the United States. So let's consider this case under the U.S. standard respecting incitement.
That standard was established decades ago. Interpreting the 1st Amendment to the Constitution, the Supreme Court held in Brandenburg v. Ohio (1969):

[T]he 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.

In that case defendant's "mere advocacy" of disruption -- his speech at a Ku Klux Klan rally was so ambiguous that it'd be a stretch to say he'd advocated violence -- was not enough to justify criminal punishment. The result would have been different, however, if he'd spoken with evident intent to incite immediate violence, at a time and place when his hearers were likely to respond by committing violence.

As my own 1st Amendment teacher put it long ago:

'No one has a fundamental right to speech that's like a punch in the nose.'

The question, then, would seem to be whether El Aroud's words are "like a punch in the nose." If they are, if her suggestion that her "[w]riting is also a bomb" turns out to be more than hyperbole -- if there is sufficient proof that what she has written intentionally urged readers immediately to commit violence, at times and places where they were like to do so -- not even a speech-friendly jurisprudence would protect her.

Alice Paul and the National Woman's Party: Direct Action in Time of War

Thanks to IntLawGrrls for giving me the opportunity, by means of this guest post, to call attention to the work of Alice Paul and the National Woman’s Party.

The story of the National Woman's Party and its 1917 picketing campaign on behalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, Woodrow Wilson. And they did so during a time of war.
In the course of this campaign, Paul and her supporters learned to use the apparatus of the municipal courts and the prison system to focus attention on the powerlessness of women, while at the same time elevating their very real suffering to a kind of suffrage martyrdom. Their principal goal was to keep pressure on government officials so that the cause of woman suffrage would not be swept away in the wartime hysteria that gripped the nation in 1917. As the police regularly hauled them off to jail, however, the suffragists began to realize that their ability to pursue that goal hinged largely on the recognition of a constitutional right to free speech.
The working paper I've just posted at SSRN, "We are at War and You Should Not Bother the President": The Suffrage Pickets and Freedom of Speech During World War I, represents the first step in recovering this forgotten story. (This is only a small portion of a much larger work-in -progress on the militant suffrage campaign). In this paper, I present, for the first time, a detailed narrative account of the legal battles of the suffrage pickets of 1917, beginning with the first round of arrests in late June, and concluding with their victory in the District of Columbia Court of Appeals in March 1918. Although the women themselves did not directly shape legal doctrine, the saga of the suffrage pickets provides an excellent vehicle for examining the emergence of free speech consciousness during 1917.
Bringing the story of the suffrage pickets to the attention of legal scholars may cause a significant reevaluation of the traditional narrative of First Amendment history. (photo credit for 1917 NWP suffrage picket of White House)

On this day

On April 7, ...
... 1970, Josina Machel (left), a fighter for the Liberation Front of Mozambique (FRELIMO), died in a gun battle with Portuguese troops. She was the wife and "comrade-in-arms" of Samora Machel, the president of FRELIMO, who would become the 1st President of Mozambique when it gained its independence in 1975. (He later married Graça Machel; as we've posted, she later would become a U.N. Special Rapporteur on the plight of child soldiers.) In Josina's honor Mozambicans observe Women's Day every April 7.
... 2003 (5 years ago today), in Virginia v. Black, the U.S. Supreme Court affirmed convictions of 2 persons charged with violating a state's hate crimes law, which prohibited "any person … with the intent of intimidating any person or group … to burn … a cross on the property of another, a highway or other public place," and further provided that cross burning "shall be prima facie evidence of an intent to intimidate a person or group." Based on a principal opinion by Justice Sandra Day O'Connor (right) a divided Court rebuffed defendants' claim that the statute violated the free speech guarantees of the 1st Amendment.