Hezbollah TV Redux

[jfnbl at earthlink.com]

The lawyer's First Amendment claim strikes me as 
more tenuous, or least more ambiguous, than the 
satellite broadcaster's claim. It's almost a 
fiction to frame the issue in terms of the 
lawyer's First Amendment rights when the real 
interest at stake is his client's; and his First 
Amendment rights, however broad, are effectively 
swallowed by his fiduciary duty to his client, 
who can dictate his lawyer's speech, or even 
trump the First Amendment by silencing his 
lawyer. If it's "not surprising" that the courts 
would reject the application of the material 
support statute to an accused terrorist's lawyer, 
it's at least bizarre to consider that the 
foreign terrorist, who has no protected right of 
free speech, apparently does have an enforceable 
attorney-client privilege.

On the other hand, while the broadcaster's First 
Amendment right may seem less compelling, it's a 
lot more straightforward. The selection of video 
programming for distribution to the public is 
plainly protected by the First Amendment, and 
there's no question that both the broadcaster and 
his intended audience have standing to enforce 
their First Amendment rights with respect to 
distribution and access. The material assistance 
statute is only given purchase by the financial 
transaction between the broadcaster and the 
terrorist organization. Ironically, the First 
Amendment claim would seem to be enhanced if, as 
we initially assumed, the broadcaster was paying 
for the distribution rights. If the First 
Amendment protects the right to distribute the 
programming, it has to protect the right to pay 
for the distribution rights. Selling access to 
the platform to another speaker, on the other 
hand, looks like a less direct, or less 
substantial, exercise of free speech. Still more 
ironically, it would look more like "pure 
speech," and less like commercial speech, if the 
cable operator /gave / the channel space to the 
terrorist organization, though that would 
obviously be the greater aid to the enemy.

Another thought: if the defendant was a cable 
television operator, instead of a satellite 
broadcast
operator, he could well have been /required/ to 
provide leased channel access to Hezbollah TV by 
the Cable Act, which further  provides that "a 
cable operator shall not exercise any editorial 
control over any video programming provided 
pursuant to this [leased channel access 
provision], or in any other way consider the 
content of such programming...."

John Noble

At 6:51 AM -0500 21/11/06, Marty Lederman wrote:
>Back in August, we had a thread about whether it 
>was constitutional to prosecute the proprietors 
>of a Brooklyn satellite television station for 
>broadcasting programs from a Hezbollah TV 
>station, Al Manar.  To recap very briefly:  I 
>argued that it was probably unconstitutional to 
>prohibit the broadcast simplicitur, as long as 
>the defendant Iqbal was not acting as an agent 
>of Al Manar.  But I also agreed with Chip Lupu 
>that as a constitutional matter, Iqbal could be 
>punished for engaging in a forbidden financial 
>transaction with Al Manar, namely, "paying 
>money or some other goods of value [to Al Manar] 
>in exchange for the right to broadcast Hezbollah 
>TV in the U.S."  I noted, however, that under 
>the relevant statute Iqbal was alleged to have 
>violated -- IEEPA -- there was probably a 
>statutory defense for a financial transaction 
>relating to such broadcasts.  (See exchange 
>below.)   
>
>Michael Froomkin then provided the indictment -- 
><>http://www.discourse.net/archives/docs/Al-Manar_Complaint.pdf -- 
>which was only seven sentences long and 
>surprising in what it did not allege.  It 
>alleged that Iqbar conspired to violate IEEPA 
>and that he actually violated IEEPA as part of 
>the conspiracy.  But it did not even purport to 
>describe what the agreed-upon and effected 
>violation of IEEPA was or would have been.  It 
>listed three "overt acts" in furtherance of the 
>conspiracy, none of which is itself (and all of 
>which together are not) a violation of IEEPA: 
>that Iqbar (i) obtained an FCC license; (ii) 
>offered to provide an unnamed individual with 
>access to Al-Manar broadcasts; and (iii) caused 
>a contractor to install a television system in a 
>Manhattan apartment for the purpose of, inter 
>alia, viewing Al-Manar broadcasts.  That's it. 
>There was not even a hint of any conduct, agreed 
>or actual -- such as purchasing the broadcasts 
>from Hezbollah -- that would violate IEEPA or 
>that would not be constitutionally protected.
>
>Now, however, the grand jury has issued an 
>indictment not under IEEPA, but under, inter 
>alia, the "material support to terrorist 
>organizations" statute, 18 USC 2339B(a)(1). 
>Thanks to Bobby Chesney for posting it here:  
><http://natseclaw.typepad.com/natseclaw/files/UnitedStates.v.Iqbal.pdf>http://natseclaw.typepad.com/natseclaw/files/UnitedStates.v.Iqbal.pdf. 
>
>If the allegations are true, then Chip was 
>correct in part:  There was a financial 
>transaction between Iqbal and Al Manar -- but 
>it's the mirror image of what Chip surmised. 
>The allegation is not that Iqbal paid Al Manar 
>for the rights to broadcast its shows, but 
>instead (if I'm reading it correctly) that Al 
>Manar paid Iqbal over $100,000 to broadcast 
>those programs in the U.S.  In other words, that 
>Iqbal entered into a contractual agreement with 
>the Hezbollah station in which it agreed to be 
>its agent in the U.S. in exchange for cash.
>
>I think this is probably covered as "services" 
>by the material support statute (18 USC 
>2339A(b)) -- although it does not appear to be 
>covered by any of the particular specified 
>examples of "material support" enumerated in the 
>statute.  (I think it's probably not, for 
>example, "expert advice or assistance," which 
>the statute defines as "advice or assistance 
>derived from scientific, technical or other 
>specialized knowledge."  I'm putting aside here 
>the question whether, as some courts have held, 
>those categories of the statute are facially 
>void for vagueness.) 
>
>Assuming it is covered as a matter of statute, 
>it raises a First Amendment question that has 
>been lurking ever since that statute was 
>enacted:  No doubt there's generally no 
>constitutional problem in prohibiting persons 
>from providing valuable paid services on behalf 
>of terrorist organizations.  But what if, in a 
>particular case, those services take the form of 
>constitutionally protected speech to a U.S. 
>audience -- such as by a paid spokesperson, a 
>paid broadcast transmitter (as alleged here), 
>or, most pointedly, a paid attorney?  Many U.S. 
>lawyers have represented designated terrorist 
>organizations in U.S. courts (presumably for a 
>fee), arguing, e.g., that the designation was 
>unlawful.  Have they thereby committed felonies? 
>If so, is that constitutional?  And if the law 
>does not or cannot cover the lawyers, why can it 
>reach, e.g., the paid Hezbollah spokesperson, or 
>broadcast agent?
>
>Existing case law suggests that the statute 
>would be constitutionally problematic as applied 
>to such speech "services."  The Ninth Circuit, 
>for instance, indicated that it would be 
>impermissible to apply the law to "efforts to 
>urge members of Congress to support the release 
>of Kurdish political prisoners in Turkey" or to 
>"writing and dissemination of literature 
>educating the American public on Tamils in Sri 
>Lanka and the LTTE-run Tamil independence 
>movement."  HLP v. DOJ, 352 F.3d 382, 404 (CTA9 
>2003).  The en banc court subsequently vacated 
>that opinion because of a statutory amendment, 
>393 F.3d 902, but in so doing it expressly 
>reaffirmed similar reasoning in an earlier panel 
>opinion (205 F.3d at 1138), and on remand, the 
>district court similarly reasoned (380 F. Supp. 
>2d 1134, 1151-1152 (CD Cal.), that the statute 
>could not be applied to "teaching international 
>law for peacemaking resolutions or how to 
>petition the United Nations to seek redress for 
>human rights violations."   
>
>That is why, for instance, the Department of 
>Justice itself has apparently represented that 
>the statute should not be construed to prohibit 
>either (1) advocacy on behalf of terrorist 
>organizations or their causes or (2) association 
>with those organizations in furtherance of their 
>advocacy goals.  309 F. Supp. 2d at 1200.  (DOJ 
>has tried, unsuccessfully, to draw a distinction 
>between persons who "independently" advocate on 
>behalf of a terrorist group, and those who are 
>subject to the "direction and control" of the 
>organization.  But of course lawyers are subject 
>to the direction and control of their clients, 
>and therefore it's not surprising that a court 
>in New York rejected the use of the 
>material-support statute as applied to Lynne 
>Stewart simply for being a lawyer for the 
>Islamic Group, subject to its "direction and 
>control."  272 F. Supp. 2d at 359.)
>
>If the reasoning of these cases is correct, then 
>why is the application of the statute to Iqbal's 
>broadcasts constitutional?
>
>----- Original Message -----
>From: <mailto:marty.lederman at comcast.net>Marty Lederman
>To: <mailto:iclupu at law.gwu.edu>Lupu ; 
><mailto:schweber at polisci.wisc.edu>schweber at polisci.wisc.edu 
>; 
><mailto:Mark.Scarberry at pepperdine.edu>Mark.Scarberry at pepperdine.edu 
>; 
><mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu 
>; 
><mailto:DavidEBernstein at aol.com>DavidEBernstein at aol.com
>Sent: Saturday, August 26, 2006 6:54 AM
>Subject: Hezbollah TV -- Never Mind?
>
>Chip is almost certainly correct -- on the 
>constitutional question.  But there may well be 
>a serious statutory problem with the case, 
>because of a speech-protective carve-out in the 
>law.  
>
>Turns out the charge against Iqbal is under 
>IEEPA, which broadly allows the President to 
>impose national-security-based import and 
>transaction embargoes with identified foreign 
>nations and entities (50 USC 1701-1702).  See 
><http://www.nytimes.com/2006/08/26/nyregion/26hezbollah.html?ref=nyregion>http://www.nytimes.com/2006/08/26/nyregion/26hezbollah.html?ref=nyregion. 
>(I have not been able to find the indictment 
>online.   If anyone has it, it would probably be 
>helpful to look at it before we get too far 
>afield.)
>
>As Chip notes, Iqbal almost certainly had to pay 
>the Hezbollah station, Al Manar, for the right 
>to import the television feed.  And he's 
>probably being prosecuted for that import 
>transaction, rather than for the domestic 
>broadcast of the shows.  The indictment thus 
>would be the same, as Chip indicates, if he had 
>paid Hezzbollah for imported baskets or pita, 
>rather than for the right to rebroadcast tv 
>shows -- or, perhaps even more to the point, 
>even if Iqbal had purchased and imported the 
>broadcasts, but had never disseminated them to 
>the public.
>
>As such, it's hard to see a serious First 
>Amendment problem under current doctrine. 
>General embargoes of imports and other financial 
>transactions have been regularly upheld under 
>O'Brien analysis, even as applied to conduct 
>undertaken for expressive purposes, to finance 
>expressive activities, or to import expressive 
>materials.  See, e.g., Teague v. Regional 
>Commissioner, 404 F.2d 441 (2d Cir. 1968) 
>(upholding ban on importing informational 
>materials from China, North Korea, & Vietnam); 
>Vietnam v. Regional Commissioner, 459 F.2d 676 
>(3d Cir. 1972) (upholding restrictions on import 
>of Chinese informational materials from North 
>Vietnam); Capital Cities v. Brady, 740 F. Supp. 
>1007 (SDNY 1990) (upholding regulatory licensing 
>requirements on broadcasting sporting events 
>from Cuba); see also U.S. v. Hammoud, 381 F.3d 
>316, 329 (4th Cir. 2004) (ban on material aid to 
>Hezzbollah is constitutional even if ban might 
>have incidental impact on speech and 
>expression); HLP v. Reno, 205 F.3d at 1135-1136 
>(elaborating on the same point). 
>
>These cases have distinguished Lamont as a case 
>in which the government was singled out 
>expression because of its impact on the 
>audience.  IEEPA and analogous "material aid" 
>restrictions, by contrast, are aimed at 
>suppressing the flow of (fungible) money to 
>certain countries and organizations that can use 
>it for terrorist (or other disfavored, 
>non-speech-related) purposes. 
>
>I think there may, however, be a serious 
>statutory question.  The so-called "Berman 
>Amendment" to IEEPA, 50 USC 1702(b)(3), provides 
>that "the authority granted to the President by 
>this section does not include the authority to 
>regulate or prohibit, directly or indirectly-- . 
>. . (3) the importation from any country, ... 
>whether commercial or otherwise, regardless of 
>format or medium of transmission, of any 
>information or informational materials, 
>including but not limited to, publications, 
>films, posters, phonograph records, photographs, 
>microfilms, microfiche, tapes, compact disks, 
>CD-ROMs, artworks, and news wire feeds."
>
>The Executive branch had construed the original 
>version of the Berman Amendment not to include 
>"intangible" materials, such as broadcasts -- 
>see the Capital Cities case, above -- but 
>Congress amended the exemption in 1994 to 
>broadly cover any information in any "format or 
>medium of transmission."  The Conference Report 
>explained (1994 U.S.C.C.A.N. at 483):
>
>The language [of the original 1988 exemption] 
>was explicitly intended, by including the words 
>"directly or indirectly," to have a broad scope. 
>However, the Treasury Department has narrowly 
>and restrictively interpreted the language in 
>ways not originally intended. The present 
>amendment is only intended to address some of 
>those restrictive interpretations, for example 
>limits on the type of information that is 
>protected or on the medium or method of 
>transmitting the information. The committee of 
>conference intends these amendments to 
>facilitate transactions and activities incident 
>to the flow of information and informational 
>materials without regard to the type of 
>information, its format, or means of 
>transmission, and electronically transmitted 
>information, transactions for which must 
>normally be entered into in advance of the 
>information's creation.
>
>The 1994 amendment, however, did not expressly 
>correct another limiting construction imposed by 
>regulation.  Then, and now, the relevant 
>regulations provide that the Berman Amendment 
>"does not authorize transactions related to 
>informational materials not fully created and in 
>existence at the date of the transaction. . . . 
>.  Such prohibited transactions include, without 
>limitation, payment of advances for 
>informational materials not yet created and 
>completed."  See 31 C.F.R. § 595.206(b)(2); 31 
>C.F.R. § 500.206(c).
>
>
>In other words, the Executive branch construes 
>the exemption not to cover contracts for the 
>import of future works, such as, e.g., books yet 
>to be published or (as presumably in this case) 
>television broadcasts created after the date of 
>the contract.  Frankly, I don't see how the 
>Berman Amendment can be construed so as not to 
>exempt "not fully created" informational 
>materials -- particularly in light of the 
>express reference to "news wire feeds."  (See 
>also the Conference Report, which specifically 
>purports to protect transactions "entered into 
>in advance of the information's creation.")  But 
>that appears to be the basis on which the 
>government is acting here.  Don't be surprised 
>if Iqbal challenges this regulatory carve-out on 
>statutory grounds.
>
>
>
>----- Original Message -----
>From: "Lupu" <<mailto:iclupu at law.gwu.edu>iclupu at law.gwu.edu>
>To: 
><<mailto:schweber at polisci.wisc.edu>schweber at polisci.wisc.edu>; 
><<mailto:Mark.Scarberry at pepperdine.edu>Mark.Scarberry at pepperdine.edu>; 
><<mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu>; 
><<mailto:DavidEBernstein at aol.com>DavidEBernstein at aol.com>
>Sent: Friday, August 25, 2006 2:53 PM
>Subject: Re: Man Charged With Relaying Hezbollah TV
>
>  > This discussion has been very valuable, but I suspect that Mr. Iqbal is
>>  being charged with supporting a designated terrorist group by
>>  engaging in a forbidden transaction with them -- that is, paying money
>>  or some other goods of value in exchange for the right to broadcast
>>  Hezbollah TV in the U.S.  If that is so, don't the First Amendment
>>  questions disappear? (That is, it doesn't matter whether Iqbal is paying
>>  Hezbollah for baskets, or pita bread, or TV footage -- paying them for
>>  anything violates the law, because it supports them financially).  Or do
>>  those on the list believe that the First Amendment requires an
>>  exemption from the "no support" statute if the buyer is acquiring (and
>>  retransmitting) communicative material? 
>>
>>  I seriously doubt that the charges relate to Hezbollah's foreign origins,
>>  or to the content of the broadcast.  If (for example) Al-Jazeera has not
>>  been designated a terrorist organization, then buying their footage and
>>  showing it in the U.S. cannot be made a crime unless the broadcast
>>  includes unprotected speech (threats, Brandenburg-type incitement,
>>  etc.).
>>
>>
>
>
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