Over the past several years, the Justice Department has increasingly attempted to criminalize what is clearly protected political speech by prosecuting numerous individuals (Muslims, needless to say) for disseminating political views the government dislikes or considers threatening. The latest episode emerged on Friday, when the FBIannounced the arrest and indictment of Jubair Ahmad, a 24-year-old Pakistani legal resident living in Virginia, charged with “providing material support” to a designated Terrorist organization (Lashkar-e-Tayyiba (LeT)).
What is the “material support” he allegedly gave? He produced and uploaded a 5-minute video to YouTube featuring photographs of U.S. abuses in Abu Ghraib, video of armored trucks exploding after being hit by IEDs, prayer messages about “jihad” from LeT’s leader, and — according to the FBI’s Affidavit — “a number of terrorist logos.” That, in turn, led the FBI agent who signed the affidavit to assert that ”based on [his] training and experience, it is evident that the video . . . is designed as propaganda to develop support for LeT and to recruit jihadists to LeT.” The FBI also claims Ahmad spoke with the son of an LeT leader about the contents of the video and had attended an LeT camp when he was a teenager in Pakistan. For the act of uploading that single YouTube video (and for denying that he did so when asked by the FBI agents who came to his home to interrogate him), he faces 23 years in prison.
Let’s be very clear about the key point: the Constitution — specifically the Free Speech clause of the First Amendment — prohibits the U.S. Government from punishing someone for the political views they express, even if those views include the advocacy of violence against the U.S. and its leaders. One can dislike this legal fact. One can wish it were different. But it is the clear and unambiguous law, and has been since the Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had publicly threatened violence against political officials in a speech.
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