Conviction for Writing Software for ISIS Upheld
From U.S. v. Osadzinski, decided yesterday by the Seventh Circuit (Judge Michael Scudder, joined by Judges Diane Wood and Amy St. Eve):
Thomas Osadzinski appeals his conviction for providing material support to a terrorist organization. In 2019 he created a computer program that allowed ISIS (the Islamic State in Iraq and Syria) and its followers to rapidly duplicate terrorist propaganda videos online and thereby to stay a step ahead of efforts by the United States and other western governments to thwart the organization’s media campaign. Osadzinski shared his computer program with people he believed were ISIS supporters, taught them how to use it, and deployed it to compile and disseminate a large trove of ISIS media.
The court held that the conviction was consistent with the First Amendment, as applied in Holder v. Humanitarian Law Project (2010):
By its terms, 18 U.S.C. § 2339B makes it a crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” Congress defined “material support or resources” as “any property, tangible or intangible, or service.” “Services” include any “expert advice or assistance” that is “derived from scientific, technical or other specialized knowledge.” … [T]he Supreme Court in HLP explained that § 2339B did not prevent a person from freely speaking about, or even independently advocating for, a terrorist organization. Rather, the Court made clear that the material-support statute prohibited “only a narrow category of speech” that falls outside the protection of the First Amendment—speech “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” …
For the sake of resolving this appeal, we accept Osadzinski’s contention that all of his offense conduct qualifies as “speech” within the meaning of the First Amendment. That includes several activities that have been recognized as expression, such as writing an article and instruction manual, forwarding multimedia links, and sending pro-ISIS messages over social media. It also includes Osadzinski’s creation, execution, and distribution of source code, which other circuits have found to constitute “speech” under the First Amendment.
This case does not require us to articulate the precise contours of the First Amendment’s relationship with computer code. The government appears to concede that all of Osadzinski’s relevant conduct constitutes speech. We are comfortable, therefore, assuming without definitively deciding that Osadzinski’s offense conduct consisted entirely of expressive activity within the meaning of the First Amendment.
That observation does not end our analysis, however. To say that Osadzinski engaged in expressive activity is not the same as concluding that the First Amendment protected the activity without qualification. The law has long recognized that, in limited circumstances, speech may lose its full measure of constitutional protection and indeed violate the law. Take, for example, incitements designed and likely to “produc[e] imminent lawless action,” which the Supreme Court declined to shield from content-based restrictions in Brandenburg v. Ohio (1969). Or consider “true threats” of violence,
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