Extending Brandenburg - Hitman scenario

1. Extending Brandenburg - Hitmanscenario • Paladin Enterprises published a book, Hitman: A Technical Manual for Independent Contractors, which gave explicit and detailed instructions on how to solicit, prepare for, and commit murders without being caught. • Several months after the book was published, James Perry brutally murdered a woman and her two children. Perry was solicited to do so by the victims’ husband/father. • In carrying out the killings, Perry meticulously followed the directions in the book Hitman, which was found in his apartment at the time of his arrest. • The estate of the victims sued Paladin Enterprises, the publisher of the book, for wrongful death, alleging that the publisher aided and abetted Perry in the murders. • Aiding & abetting = “To somehow assist in the commission of a crime, or be an accomplice. A plan to commit a crime or acts, the probable consequences of which are criminal.”

2. Hitman, continued • If Brandenburg applies, are any of its elements met? • intent, express advocacy, illegal harm, likely to result, imminently • Does it matter if Brandenburg elements are missing – should we apply Brandenburg to this scenario? • Does the form of the speech (i.e., provision of information vs. advocacy) affect your determination as to whether the speech is protected or not? • Do you reach different conclusions in Hitman/Ellen Gates scenarios? If so, why?

3. Holder v. HLP – the statutes • 18 USC § 2339B(a) – “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, [shall be fined or imprisoned up to 15 years.] [A] person must have knowledge that the organization is a designated terrorist organization [or] that the organization has engaged or engages in terrorist activity.” • “Material support or resources” = property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials (18 USC § 2339A) • Training= instruction or teaching designed to impart a specific skill, as opposed to general knowledge • Expert Advice or Assistance= advice or assistance derived from scientific, technical or other specialized knowledge

4. Holder v. HLP – who got it right? • What kind of expressive activity is at stake in HLP? • Why does majority say it can support terrorism? Who has the better argument on this -- majority or dissent? • What kind of proof is required of the harm the statute seeks to prevent or the goal the statute seeks to implement? What kind of proof should be required before otherwise protected expressive activity is prohibited? • Is it really a comfort that one can advocate independently on behalf of terrorists but that one simply cannot coordinate with them? • What is speech “to, under the direction of, or in coordination with” a group? • What if you want to file an amicus brief on behalf of a designated organization? • What if you maintained a website claiming that the US actions were evil that linked to their websites and posted translated videos advocating jihad? • What does HLP suggest about how Dennis/Scales/Brandenburg fit together?