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Eye On Boise

Role of the First Amendment?

As jurors enjoyed a long weekend, attorneys on both sides in the Sami Al-Hussayen case were back in court Friday, arguing about the instructions that will be given to the jury. Prosecutors were particularly alarmed by proposed instructions from the judge laying out the protections of the First Amendment regarding free speech.

The judge’s proposed instructions noted that speech is protected unless it causes imminent harm. Often, that’s associated with the classic example of yelling “fire” in a crowded theater. Posting materials on websites, like other types of publishing, is a form of speech.

The proposed instructions said, in part, “Speech may not be penalized just because it makes it more likely that someone will be harmed in the future.”

Assistant U.S. Attorney Kim Lindquist said, “The court made it very clear that sure, speech was going to be an issue, absolutely, but it never rose to this level.” He said he was “terribly concerned” that the instructions may tell jurors the government has to prove something it didn’t address in its case – imminent harm.

The government has focused instead on the material support to terrorism statute, which requires it to prove that the defendant provided support while either knowing or intending that it would help terrorists with recruitment or fundraising.

Defense attorneys have proposed even farther-reaching free-speech instructions.

“The alleged proof of the involvement in conspiracies is entirely circumstantial,” lead defense attorney David Nevin told the court. “They are inferring the existence of the conspiracy from … the publication of various materials, from protected acts under the First Amendment.”

Lindquist responded, “You have to go to content in order to show knowledge or intent. … Of course you have to go into the content.”

The judge reserved his ruling on the issue, and likely will decide over the weekend. The jurors will receive their instructions on Tuesday, and then hear closing arguments in the case. The instructions are key, because they outline for the jurors the questions that they have to answer in deciding guilt or innocence.

Eye On Boise

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