ISLAMIC EXTREMIST TARGETS FACEBOOK USERS
By Daniel Huff
This lasting effect makes it all the more frustrating that authorities did not charge him sooner. He had made very similar threats against the producers of South Park weeks before. The case highlights the urgent need for better legal tools to protect free speech from extremist intimidation.
On April 15, 2010, Chesser, acting through the website RevolutionMuslim.com, "warned" the creators of South Park that they would "likely" be executed for producing an episode lampooning Muslim outrage over depictions of Muhammad. Chesser's post provided their photos and work address and included audio of radical cleric Anwar Al-Awlaki calling for the assassination of anyone who has "defamed" Muhammad. As was widely reported, Comedy Central, which carries the show, succumbed to the threat and heavily censored the episode. Nevertheless, Chesser was not charged. NYPD Commissioner Ray Kelly called Chesser's posting a threat, but said authorities did not believe that, legally, it "rises to a crime right now."
Facing no legal consequences after his first success, Chesser turned the same intimidation tactics on a fresh target.
Facebook users, determined to defy the intimidation tactics that vanquished Comedy Central, had started the group "Everybody Draw Mohammed Day." The theory was safety in numbers. If thousands of people all committed to draw Muhammad on a single day, there would be so many potential targets that fanatics would be unable to focus their retribution efforts effectively on any single one.
It failed because, even though thousands of people joined the group, Chesser was content to start small.
In May of 2010, he obtained personal contact information on 11 members of the group and posted it to a jihadi website, saying the data was "just a place to start." As before, he provided the addresses of his targets against the backdrop of Al-Awlaki's recorded sermon and examples of artists targeted for insulting Muhammad. He even proffered his own reflections on the propriety of executing them in accordance with the Shari'a (Islamic law). Yet again, he was not immediately prosecuted.
Instead, he was finally arrested July 11, 2010, on independent charges of providing material support to a foreign terrorist organization. He was intercepted at Kennedy airport, with his infant son in tow, on his way to Somalia to join al-Shabaab and "engage in violent jihad."
It was only in light of this subsequent arrest that federal prosecutors felt comfortable characterizing Chesser's earlier activities as meeting the threshold for true threats in violation of U.S. federal law. On October 18, they amended the charges against him to include the threats relating to South Park and Facebook. He pled guilty on all counts.
It seems prosecutors did not act earlier because, without Chesser's subsequent behavior, they did not have sufficient evidence of intent to threaten to meet the heightened burden of proof required in criminal cases. In the meantime, Chesser did deep damage to free speech rights.
U.S. Attorney Neil MacBride warns Chesser's "solicitation of extremists to murder U.S. citizens … caused people throughout the country to fear speaking out – even in jest – lest they also be labeled as enemies who deserved to be killed."
This might have been avoided if U.S. federal law provided the same protection to free speech rights that it already gives to abortion rights.
In the 1990's, abortion providers faced the same sorts of extremist threats that cartoonists and authors face now. In response, Congress passed the Freedom of Access to Clinic Entrances Act (FACE) which not only prohibits threats against persons exercising abortion rights, but permits victims to sue for damages.
The provision for civil suits with preset damages is key. It empowers victims of intimidation to act as private attorneys general to defend their rights in a setting with a lower burden of proof.
Indeed, in a 2002 case, with facts similar to the Chesser case, the Ninth Circuit found a fringe pro-life group had threatened abortion doctors by distributing their photos and contact information. The doctors had sued under the FACE Act and obtained a substantial jury award.
With only minor modifications, FACE can be expanded to cover threats against free speech. The original passed by solid bipartisan margins in both houses of Congress. All 10 federal circuit courts who have heard challenges to FACE have upheld it. To forestall any concerns regarding federalism or unintended consequences, Congress can include a sunset provision.
Had such a law been in place in April, Chesser's first victims could have immediately mired him in costly, time-consuming civil litigation. The net effect would have been both to distract and deter him from making further threats and preparing for jihad. At least 11 Facebook users would "like" this.
The Islamist Fifth Column -- America's Internal Enemies:
Disloyalty, Subversion, Sedition, & Treason
Islamic Terrorism & U.S. Homeland Security
Islamism & Jihadism -- The Threat of Radical Islam
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Middle East -- Arabs, Arab States,
& Their Middle Eastern Neighbors
American Foreign Policy -- The Middle East
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Islamist Terrorist Attacks on the U.S.A.
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Daniel Huff is the Director of the Legal Project at the Middle East Forum. He previously served as Counsel to the U.S. Senate Judiciary Committee, handling a number of matters related to American national security and to civil and criminal law. As a member of the staff of the Judiciary Committee, one of his priorities was the Free Speech Protection Act, which was designed to combat "libel tourism," the practice of intimidating American authors by suing them for libel in foreign jurisdictions less protective of freedom of speech and expression than is the U.S.A.
Prior to his service in Washington, D.C., Huff was an associate at McKinsey & Company in New York, N.Y. A member of the New York Bar, Huff is a graduate of Columbia University Law School, where he was a Harlan Fiske Stone Scholar.
The foregoing article by Daniel Huff was originally published in FrumForum, October 29, 2010, and can be found on the Internet website maintained by the Middle East Forum, a foreign policy think tank which seeks to define and promote American interests in the Middle East, defining U.S. interests to include fighting radical Islam, working for Palestinian Arab acceptance of the State of Israel, improving the management of U.S. efforts to promote constitutional democracy in the Middle East, reducing America's energy dependence on the Middle East, more robustly asserting U.S. interests vis-à-vis Saudi Arabia, and countering the Iranian threat. (URL: http://www.meforum.org/2772/islamic-extremist-facebook)
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