from United States vs. Osazinskythe Seventh Circuit Court of Appeals (joined by Justices Michael Scudder, Diane Wood, and Amy St. Eve) decided yesterday:
Thomas Osazinski appealed his conviction for providing material support to a terrorist organization. In 2019, he created a computer program that allowed ISIS (Islamic State of Iraq and Syria) and its supporters to rapidly reproduce terrorist propaganda videos online, thereby helping the United States and others seek to stop the group. It was able to go one step ahead of the efforts of other Western governments. media campaign. Osazinski shared his computer program with suspected ISIS supporters, taught them how to use it, and introduced it to the large-scale editing and distribution of ISIS media.
The court held that the conviction was consistent with the First Amendment as applied in 2015. Holder v. Humanitarian Law Project (2010):
The provisions of 18 USC § 2339B make it a crime to „intentionally provide material support or resources to a foreign terrorist organization.“ Congress defined “material support or resources” as “any property or service, tangible or intangible.” “Service” includes “professional advice or assistance” that is “based on scientific, technical, or other expertise.” … (T) Supreme Court HLP § 2339B, it explained, does not prevent individuals from freely speaking about or independently defending terrorist organizations. Rather, the court found that the Material Support Act prohibits only a “narrow category of speech” that falls outside of First Amendment protections, namely, “directions of a foreign entity known to the speaker. It has been made clear that only „speech that is made under the United States or in collaboration with foreign organizations“ is prohibited. It will become a terrorist organization. ”…
To resolve this appeal, we accept Osazinski's argument that all of his criminal conduct constitutes „speech“ within the meaning of the First Amendment. This includes several activities that are recognized as expression, such as writing articles and instruction manuals, forwarding multimedia links, and sending pro-ISIS messages through social media. This includes Mr. Osazinski's creation, execution, and distribution of source code, which other circuit courts have found to constitute „speech“ under the First Amendment.
This case doesn't need to outline exactly the relationship between the First Amendment and computer code. The government appears to accept that all of Osazinsky's related actions constitute speech. Therefore, we can safely assume, although we do not definitively determine, that Osazinski's criminal conduct consisted entirely of expressive activity within the meaning of the First Amendment. .
However, this observation does not end the analysis. To say that Osazinski engaged in expressive activity is not the same as concluding that the First Amendment protects that activity without qualification. The law has long recognized that in limited circumstances, speech may lose its full constitutional protection and actually violate the law. For example, consider incitement that could cause an “imminent tort.” The Supreme Court declined to protect them from content-based restrictions. Brandenburg vs. Ohio (1969). Or consider a “true threat” of violence, which courts have similarly found to be a less protected category of speech.
The Supreme Court's decision is HLP Based on these principles. The court never questioned the right to independently express personal views, positive, negative, or neutral, about terrorist organizations. But it was equally clear that rights had limits. One such restriction is the provision of material support to a foreign terrorist organization if it is addressed to, directed by, or coordinated with that organization. It is the power of Congress to prohibit expressive activities.
The jury found that Mr. Osazinski acted in conjunction with or under the direction of ISIS. HLP It has been decided that it will no longer be protected by the First Amendment. The district court cautioned jurors not to return a guilty verdict unless they concluded beyond a reasonable doubt that Osazinsky „acted knowingly in conjunction with or at the direction of foreign terrorists.“ There is no room for doubt on this point, as the company was paying . organization. ” The court further explained that “(i) independent activity or advocacy () is not prohibited,” and, in case there was any doubt, further emphasized in another instruction: “(i) independent activity or advocacy is not prohibited.” „Advocacy that is carried out without following the instructions or claims of terrorist organizations.'' Cooperating with them does not violate the law. ” In returning its verdict, the jury necessarily found that Osazinsky had collaborated with ISIS in an unprotected expressive activity. Based on this record, and after our own independent legal review of Osazinski's legal claims, we find that Osazinski's material support conviction does not violate the First Amendment. I agree with the court's opinion.
Mr. Osazinski, along with his trial lawyers, is making a broader legal argument. He objects that affirming his conviction would all but eliminate his constitutional right to independently defend terrorist organizations. Osazinski emphasizes that if a group's general call for support is sufficient to constitute „direction,“ HLPThat being the case, people who watch videos like Inside 8 are violating a core First Amendment activity, viewing someone else's point of view, simply because the terrorist group asks its supporters to do so. You will be prohibited from sharing it.
Osazinsky is correct in a broad sense. Any decision that explicitly or not eliminates the right of individuals to independently defend terrorist organizations would violate long-recognized constitutional principles. We found that Section 2339B does not prohibit expressing sympathy for the views of foreign terrorist organizations. We reject any interpretation of „adjustment“ or „direction“ that prohibits expressive activities consistent with those views.
But Osazinski's basic assumption is wrong. He wasn't convicted just because he watched Inside 8, and he wasn't convicted just because he later engaged in independent advocacy work. Far from it. Every step of the way, Osadzynski has supported ISIS and its media by contributing to official videos and providing his tools for organizing, duplicating and distributing media to a wider audience while circumventing censorship. I closely coordinated my office and my own activities. Our affirmation of his conviction would respect these legal boundaries….
The court also held that section 2339B clearly applied to Osazinski's conduct.
We have no difficulty in concluding that Osazinski's actions qualify as a „service“ that substantially aided ISIS. Note that the law defines „services“ to include „professional advice or assistance“ that is „based on scientific, technical, or other expertise.“ Osazinsky provided just that. He used his computer training to create and deploy computer scripts that replicated ISIS's propaganda trove in order to circumvent censorship of his ISIS media online. He then coached other of his ISIS supporters on how to use this script to accomplish the same goal. In doing so, he provided material support to ISIS (and its media activities) within the meaning of Article 2339B….
Osadzinski emphasizes that the term “service” in § 2339B is interpreted as follows: HLP, applies only to coordinated speech activities, such as those addressed to, coordinated with, or directed by ISIS. Once again, we accept Osazinsky's basic assumption that his acts of aggression involve expressive activity. Nevertheless, we conclude that his conduct clearly constitutes coordinated activity.
HLP It did not give the Supreme Court an opportunity to delve into what degree of „adjustment“ or „instruction“ is required to constitute the provision of a „service“ within the meaning of section 2339B. As courts continue to consider challenges to convictions under Section 2339B, the line between concerted action and independent advocacy will no doubt become clearer. All we need to do is determine whether Osazinsky's conduct clearly falls on the prohibited side of that line.
It happened. Osazinski acted in response to what he perceived to be strict orders from ISIS contained in the Inside 8 video. „Adopt the message sent by official media,'' „Support Khilafah digitally,'' and „Make an effort.'' and spread it widely. ” In discussions with undercover agents, he specifically referenced Inside 8's instructions, saying, „If they close one account, open three others. And if they close three, open another 30.'' We will open an account for „. And that's exactly what he set out to do.
Mr. Osazinski worked diligently for months to respond to ISIS's calls for help in developing a media campaign. He assisted ISIS' media office by providing English subtitles and narration for videos. He has compiled and organized a large database of his ISIS videos in high resolution for his future distribution. He designed a program that automatically organizes and proliferates ISIS content online. He then taught fellow ISIS supporters how to do the same, spending hours over several days helping them troubleshoot their problems. Through these actions, Osazinsky promoted himself far beyond the role of an independent advocate, by improving, contributing, compiling, organizing, and designing tools for the explosive distribution of official publications. He effectively merged his own voice with that of the ISIS media station.
Osazinski consistently coordinated, or at least attempted to coordinate, his actions with ISIS members. On at least two of his occasions, he repeated to Agent 3, „If you have any brothers who need help with security, please tell them to come to me.“ When Agent 1 suggested that Osazinski contact ISIS's official media outlet, he responded that he would like to do so „in the near future.“ He then invited Agent 3 to share his ISIS media channel with „anyone[he]trusts.“ When Agent 2 asked for guidance on how to run his program on the computer he brought back to his ISIS members, Osazinsky did not hesitate. He even wrote a step-by-step instructional guide for ISIS followers to use.
Osazinski had plans to go even further. He explained to Agent 3 that he intended to convert a comprehensive archive of ISIS videos into torrents that could be widely disseminated with minimal risk of censorship. He even offered to work with ISIS' official media bureau to help organize online content. Through the dissemination and deployment of his code, Mr. Osazinsky said, „brothers who have access to the channels of the unorganized Al-Furat Media and Al-Hayat Media Center will be able to organize them and access my I was hoping they would give me something to help me sort them out. ” These are not the words of an unrelated or independent advocate. These are more indicative of what Osazinsky had become at that point: a proxy IT servicer for the Islamic State.
Osazinski emphasized that sometime in June 2018, he declined Agent 3's invitation to connect with ISIS members. While that was true, Osazinski explained that he only did so because he knew he was being watched by the FBI. As soon as he believed his surveillance was over, he resumed coordinating with ISIS. By August 2019, he declared, „Now I'm doing jihad as much as I can“ because „they stopped following me.“ This comment, compounded by similar comments by dozens of others, reflects Osazinski's stated intention to align with ISIS.
Taken together, the record as a whole rebuts Osazinski's contention that he did not know that his conduct might violate Section 2339B. Mr. Osazinski took concrete action multiple times in direct response to ISIS's calls for help in combating online censorship. He did this with the stated intention of attempting to coordinate with, and further deepening, coordination with ISIS's official media outlets and members. Such conduct is inconsistent with independent advocacy and is prohibited by § 2339B.
The final analysis is that…(Osazinski) attempted to engage in activities affiliated with or directed by a known foreign terrorist organization. Such activities are not protected by the First Amendment and clearly violate Section 2339B.