Hard cases make me have tea and sympathy with the devil

There’s an old legal saying that “hard cases make bad law.”

In light of what I just read about a man who faces a 23 year sentence for uploading a five-minute YouTube video, I would add that hard cases can result in worse things than bad law: they can make me agree with Glenn Greenwald.

Unlike many of those who read Greenwald, I have zero sympathy for the defendant, who is obviously a terrorist sympathizer and supporter. According to Greenwald, here’s what he did:

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.

As Greenwald notes, Brandenburg v. Ohio is the controlling Supreme Court First Amendment decision, with the court holding that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force.”

But the Justice Department has created a new precedent, in which First Amendment protections do not apply if the advocacy in question is coordinated with terrorist groups. (Opinion here.)

Again, I have no sympathy with the guy in question, and I wish the government would deport him and people like him. Nor do I have any sympathy for people who support terrorism in any way, shape or form. What worries me is that not only may any group be designated as terrorist, but the definition of “terrorist” is constantly evolving. Blogger Pam Geller, for example, has been criticized for allegedly supporting European groups such as Vlaams Belang, the French Bloc Identitaire, the English Defence League, and for allegedly making statements in support of Slobodan Milosevic. How much of that is true, I don’t know. However, I support her and anyone else’s First Amendment right to speak to or voice support for whatever persons and organizations they want.

But imagine how easy it would be to simply designate any unpopular organization (such as the above) as “terrorist” and add it to the list. After the Norwegian shooting incident, a serious attempt was made to say Geller had “enabled” the demented shooter. A number of American right wing organizations (including an organization founded by Geller) have been deemed “hate groups” by the FPLC (known to work closely with the U.S. government).

Need I remind readers of the recent, well orchestrated, completely serious attempts — at the highest levels of government — to brand Tea Party supporters as “terrorists”?

I think a very bad precedent is being set here, one which could easily come back to haunt those who are applauding it.