I last wrote about Al-Manar 20 months ago, decrying the government's use of the Terrorist Exclusion List to prevent Americans from viewing Hezbollah's propaganda satellite TV channel. The list's powers don't allow the government to ban Al-Manar but merely deport anyone who works with or for a group that is named in the TEL. Following Al-Manar's inclusion in the list, the satellite provider that was supplying it in the United States dropped the channel without explanation.
My piece didn't advocate "free speech for terrorists," as the headline to a feature criticizing me in the March 2005 issue of Commentary would have it. My point was that the government shouldn't be in the business of blocking propaganda from U.S. viewers; it's the right of Americans to read and view what they choose that I defend. My position, as we'll see, appears to be identical with the one enshrined in U.S. law.
Today's press (Washington Post, New York Times, Associated Press, Reuters,and elsewhere) puts Al-Manar back into the news with reports of the arrest of Javed Iqbal. He's charged with his role in providing access to Al-Manar to New York City-area viewers. The government is invoking the International Emergency Economic Power Act (PDF) to block Al-Manar. As Walter Pincus writes in the Post, the Treasury Department used its powers to designate Al-Manar a part of the Hezbollah terrorist network and thereby prohibit transactions between Americans and Al-Manar.
But the act specifically bars the government from regulating or prohibiting—"directly or indirectly"—"any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value" or any "publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds." Donna Lieberman, executive director of the New York Civil Liberties Union, alludes to this First Amendment exemption in the New York Times article.
My reading of the law puts Iqbal in the clear if all he did was help customers pluck Al-Manar off a satellite. But if Iqbal also provided "material support"—money, property, expert advice, training, lodging, etc.—to Al-Manar, he's probably going to jail. "The charge lurking in the background here is material support for terrorism," said prosecutor Stephan A. Miller.
Cell Hell. While I was on vacation, attorney Theodore J. Boutrous Jr. penned an excellent First Amendment piece for the Aug. 19-20 Wall Street Journal. The piece isn't on OpinionJournal.com, so borrow a friend's online password to read it, or taste my summary.
Boutrous warns that a D.C. Circuit ruling in Boehner v. McDermottcould "blow a hole through the First Amendment" unless the full en banc D.C. circuit, which has agreed to rehear the case, voids the panel's ruling.
You may recall the how the December 1996 conference call between GOP leaders was intercepted and recorded by a Florida couple from Rep. John Boehner's, R-Ohio, cell phone, and how they passed a copy to Rep. Jim McDermott, D-Wash., who passed it on to the press, which reported on it.
The Florida couple broke obvious federal wiretapping laws in recording the phone call. Boehner, however, sued McDermott, claiming he had invaded his right to privacy and also violated federal wiretapping laws. Boutrous, who has filed a friend-of-the-court brief for 18 news organizations in Boehner, explains that the D.C. Circuit upheld a $60,000 judgment against McDermott. Because McDermott allegedly knew the illegal nature of the tape when he accepted it, the court ruled that he obtained it "unlawfully" and opened him to punishment, like a fence who "is guilty of receiving stolen property."
The high court has made clear over and over again—usually in cases involving the press—that, absent the most extraordinary and compelling circumstances, as long as a citizen breaks no law in obtaining truthful information of public concern, he cannot be punished for publishing it, even if he knew that his source broke the law. A "receipt of stolen property" exception would overturn this important First Amendment doctrine, threatening the ability of the press to obtain and disseminate news.
As a matter of history, tradition, and ordinary newsgathering, the press sometimes obtains vital, highly newsworthy information from sources who may have broken the law, or some legal duty, while providing it. Indeed, many of the most significant news stories have been based on information that the source may have acquired or communicated illegally, including the Pentagon Papers case, Watergate, the Monica Lewinsky scandal, stories about the health hazards of tobacco and, more recently, articles about CIA secret prisons in Europe and the NSA surveillance program.
Seeing as I've already cribbed so much Boutrous, I might as well conclude this column with the conclusion of his column, where he cites former Yale law professor Alexander Bickel, who called the ongoing constitutional tension between the press and government the "unruly contest." Finding for Boehner in Boehner v. McDermott "would stack the deck in this contest between government secrecy and free speech. It should be rejected. The interests at stake involve all Americans—not just two feuding congressmen."
I've met Boutrous via the telephone and would like him to give up his law practice and ghost my column, especially when I'm on vacation. Alas, I doubt if I could afford him. Who else could ghost me? Send nominations to email@example.com. (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)
Shafer's hand-built RSS feed.