Court documents filed last week reveal Islamic extremists have obtained personal contact information on members of the defiant Facebook group "Everybody Draw Mohammed Day." Zachary Chesser, who provided the information, pled guilty to "communicating threats" and renounced jihad, but the damage was done. Prosecutors say he "seriously endangered the lives of innocent people who will remain at risk for many years to come."
This lasting effect makes it all the more frustrating that authorities did not charge him sooner. He had made very similar threats against the producers of South Park weeks before. The case highlights the urgent need for better legal tools to protect free speech from extremist intimidation.
On April 15, Chesser, acting through the website RevolutionMuslim.com, "warned" the creators of South Park that they would "likely" be executed for producing an episode lampooning Muslim outrage over depictions of Mohammed. Chesser's post provided their photos and work address and included audio of radical cleric Anwar Al-Awlaki calling for the assassination of anyone who has "defamed" Mohammed. As was widely reported, Comedy Central, which carries the show, succumbed to the threat and heavily censored the episode. Nevertheless, Chesser was not charged. NYPD Commissioner Kelly called Chesser's posting a threat but said authorities did not believe legally it "rises to a crime right now."
Facing no legal consequences after his first success, Chesser turned the same intimidation tactics on a fresh target.
Facebook users, determined to defy the intimidation tactics that vanquished Comedy Central, had started the group "Everybody Draw Mohammed Day." The theory was safety in numbers. If thousands of people all committed to draw Mohammed on a single day, there would be so many potential targets fanatics would be unable to focus their retribution efforts effectively on any single one.
It failed because even though thousands of people joined the group, Chesser was content to start small.
In May of 2010, he obtained personal contact information on 11 members of the group and posted it to a jihadi website saying the data was "just a place to start." As before, he provided the addresses of his targets against the backdrop of Al-Awlaki's recorded sermon and examples of artists targeted for insulting Mohammed. He even proffered his own reflections on the propriety of executing them in accordance with Islamic law. Yet again, he was not immediately prosecuted.
Instead, he was finally arrested July 11th on independent charges of providing material support to a foreign terrorist organization. He was intercepted at Kennedy airport, with his infant son in tow, on his way to Somalia to join al-Shabaab and "engage in violent jihad."
It was only in light of this subsequent arrest that federal prosecutors felt comfortable characterizing Chesser's earlier activities as meeting the threshold for true threats in violation of federal law. On October 18th, they amended the charges against him to include the threats relating to South Park and Facebook. He pled guilty on all counts.
It seems prosecutors did not act earlier, because without Chesser's subsequent behavior, they did not have sufficient evidence of intent to threaten to meet the heightened burden of proof required in criminal cases. In the meantime, Chesser did deep damage to free speech rights.
US Attorney Neil MacBride warns Chesser's "solicitation of extremists to murder U.S. citizens … caused people throughout the country to fear speaking out – even in jest – lest they also be labeled as enemies who deserved to be killed."
This might have been avoided if Federal law provided the same protection to free speech rights that it already gives to abortion rights.
In the 1990's, abortion providers faced the same sorts of extremist threats that cartoonists and authors face now. In response, Congress passed the Freedom of Access to Clinic Entrances Act (FACE) which not only prohibits threats against persons exercising abortion rights, but permits victims to sue for damages.
The provision for civil suits with preset damages is key. It empowers victims of intimidation to act as private attorneys general to defend their rights in a setting with a lower burden of proof.
Indeed, in a 2002 case with facts similar to the Chesser case, the Ninth Circuit found a fringe pro-life group had threatened abortion doctors by distributing their photos and contact information. The doctors had sued under the FACE Act and obtained a substantial jury award.
With only minor modifications, FACE can be expanded to cover threats against free speech. The original passed by solid bipartisan margins in both houses. All 10 federal circuit courts who have heard challenges to FACE have upheld it. To forestall any concerns regarding federalism or unintended consequences, Congress can include a sunset provision.
Had such a law been in place in April, Chesser's first victims could have immediately mired him in costly, time consuming civil litigation. The net effect would have been both to distract and deter him from making further threats and preparing for jihad. At least 11 Facebook users would "like" this.
Daniel Huff is Director of the Legal Project at the Middle East Forum and a former counsel to the Senate Judiciary Committee.