Emerson Begolly, An American Muslim has pled guilty to two things today:
1) Encouraging terrorism on an internet jihadist message board:
“Real terrorism, but on a small scale,” he wrote in one of his posts. “Best as single shot, drive by, hit and run, beat down. Who are the best targets? Off duty police, off duty soldiers, gang member, family members of soldiers, government agents, workers at ammunition factory, white supremacists or black supremacists.”
2) Posting publicly available bombmaking information (a 101 page course) on the same message board.
The obvious question everyone should be asking at this point, is: doesn’t the first amendment protect that?
According to at least one legal expert, writing at the time of the indictment, maybe, maybe not. Count 1 is being framed as solicitation – the DOJ is trying to say that by trying to persuade others to engage in terrorism, Mr. Begolly was akin to someone hiring a hitman. The expert, Mr. Lederman is inconclusive on whether this argument is sane and even suggests that the open or closed nature of the forum may be relevant.
On the second count, Mr. Lederman (loosely) suggests that posting the bomb-making information could be illegal if it was done with “crime-facilitative intent.” So if Mr. Begolly posted the information intending that it be used in a crime, it may be illegal for him to have done so.
Now I’m not a legal expert, but I think Mr. Lederman is complicating things too much. Here’s a simple way of looking at this: was Mr. Begolly’s alleged criminal behavior speech? Because if it’s speech, it’s protected by the First Amendment. People always say “you can’t yell fire in a crowded theater”. But yelling fire isn’t speech, you’re not saying anything, you’re just creating panic rather than making a point or teaching people information. What Mr. Begolly was doing was giving people his views and information, and allowing them to make their own decisions on whether they should listen to him or not. For the government to step in and say that We the People, can’t hear what Mr. Begolly has to say EVER (not just in a crowded theater) suggests the worst kind of nanny state – not the kinda-good-sounding one the Republicans warn us about that feeds us and gives us healthcare, but the terrible one the Founding Fathers warned us about that tells us what we can and can’t see or hear.
It’s a mistake to view this as only involving Mr. Begolly. The First Amendment does not only give Mr. Begolly’s a right to speak, it gives us a right to hear what he says. And it’s also important to consider the limitation of the government’s power – that no one person or entity can serve as the people’s thought police. When looking at it in that context, there’s no way that anything Mr. Begolly did was illegal.