Can Tarek Mehanna Take the Fifth... and the First?

The Protected Free Speech Defense

The terrorism trial of Tarek Mehanna has been going on in Federal District Court in Boston for about a month now. (Find my prior blog posts on the trial here.) Jay Carney, Jr., and the rest of the defense team, have built their defense to charges of supporting Al Qaeda around the First Amendment right to free speech. While the defendant might have said, written, posted, blogged and translated some items that most Americans would find repugnant, the Bill of Rights specifically protects the right of any American to do just that. The defense contends that none of these ideas were ever put into action and therefore can't constitute criminal conduct.

I will admit that, when the trial first started, I thought this defense was a long-shot. Surely the prosecution would present evidence of actual deeds that would puncture the credibility of the free speech defense. As the trial progressed, however, I was struck by just how little of the government's evidence went beyond texts, translations and conversations. Maybe they could pull off this defense, after all.

There is the sticky situation of Mehanna's trip to Yemen, allegedly to receive terrorist training. The defense that he was simply seeking to further his religious studies rings quite hollow. There doesn't seem to be much more than this, though, in the "smoking gun" department. It seems as if the authorities only managed to pulled off of his computer text files and emails. That is, they have a seemingly endless  supply of hateful and desperate speech... but it's still all speech.

Was the Speech Dangerous?

The protections of speech, even political speech, do have their limits. If the speech was intended to and/or could reasonably be expected to incite violence, the state interest in preventing that violence trumps the right to the speech. While the burden is on the prosecution to prove that the speech in this case was too dangerous to permit, the true burden is not so cut-and-dried. The easy solution for the jury is to accept the prosecution's assertion that this kind of vitriolic America-bashing is dangerous and should not be permitted. As such, it is incumbent upon the defense to reassure the jurors that there is no link between this kind of speech and an actual threat to their lives, their safety and their way of life.

That is, the defense needs the jurors to conclude that this speech is not dangerous. The defense needs the jurors to understand that Tarek Mehanna can believe everything he wrote and said and still not be a threat.

Should the Defendant Take the Stand?

This brings us to the very tricky question of whether Tarek Mehanna should take the stand in his own defense. The last time I wrote about this question, it was in the context of the Edward Fleury trial (Fleury had organized a gun show at which a young boy had accidentally shot himself to death with an Uzi submachine gun). There is an added twist to this strategic decision in the Mehanna trial. The whole defense is premised on the proposition that nothing Mehanna has said is dangerous. He need not renounce any of his writings because the Constitution protects his right to express his views. Most importantly, those views did not spur either Mehanna or his compatriots to violence. That is, the defense needs the jury to conclude that Mehanna's speech is innocuous.

While a jury is always instructed not to conclude anything about a defendant's guilt or innocence from his choice not to testify, we know from ample empirical research that jurors always draw inferences from this decision. It will be particularly difficult for jurors in this case to ignore a decision by Mehanna's defense team to have him not testify in his own defense. How is a juror to conclude that Mehanna's speech is harmless if he is not willing to take the stand and defend that speech himself? If Mehanna is afraid of the consequences of speaking his views in open court, perhaps the jurors have reason to fear that speech, too.

So, the defense confronts a very real dilemma. Can the defendant simultaneously assert his FIrst Amendment right to free speech and his Fifth Amendment right not to speak at all?

According to media sources, the defense is scheduled to rest its case later this week. That suggests to me that Mehanna will not testify in his own defense. Such a choice is a gamble in this case -- perhaps more so than in a typical case -- but I can certainly understand the defense team going in that direction. Perhaps it is a better bet that jurors will properly internalize the burden of proof on the government here than that Mr. Mehanna can avoid saying something incriminating on the stand under cross-examination. The remainder of the case certainly holds its share of suspense.