The Volokh Conspiracy
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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, which the Court likewise held to be a less protected category of speech ….
The Supreme Court's decision in HLP grounded itself in these principles. The Court in no way questioned the right to independently express personal views—positive, negative, or neutral—about terrorist organizations. But it was equally clear that the right has limits. One such limit is Congress's authority to prohibit expressive activity that amounts to the provision of material support to a foreign terrorist organization where the support is either addressed to, directed by, or coordinated with that organization.
The jury found that Osadzinski had acted in coordination with or under the direction of ISIS—which HLP determined to fall outside the protection of the First Amendment. The point is not subject to doubt, as the district court took care to instruct the jurors not to return a guilty verdict unless they concluded beyond a reasonable doubt that Osadzinski had knowingly acted "in coordination with, or at the direction of, a foreign terrorist organization." The court further explained that "[i]ndependent activity or advocacy [ ] is not prohibited" and, in case any doubt remained, doubled down in a separate instruction: "Advocacy that is done independently of the terrorist organization and not at its direction or in coordination with it does not violate the statute." In returning its verdict, the jury necessarily found that Osadzinski engaged in unprotected expressive activity in concert with ISIS. On this record, and having conducted our own independent legal review of Osadzinski's legal claims, we agree with the district court that Osadzinski's material-support conviction did not offend the First Amendment.
Joined by amicus, Osadzinski presses an even broader legal point. He objects that affirming his conviction would all but eliminate the constitutional right to independently advocate for a terrorist organization. Osadzinski highlights that, if a group's general call for support is enough to constitute "direction" under HLP, then anyone who watches a video like Inside 8 would subsequently be barred from engaging in core First Amendment activity—viewing and sharing others' viewpoints—simply because the terrorist group asks its supporters to do so.
Osadzinski is right on a broad level. Any holding that would eliminate—explicitly or otherwise—a person's right to engage in independent advocacy for a terrorist organization would conflict with long-recognized constitutional principles. We have observed that section 2339B does not prohibit persons from expressing sympathy for the views of a foreign terrorist organization. We reject any interpretation of "coordination" or "direction" that would prohibit expressive activity aligned with that view.
But Osadzinski's baseline assumption is mistaken. He was not convicted simply for watching Inside 8 and subsequently engaging in what would otherwise constitute independent advocacy. Far from it. At every step, Osadzinski closely coordinated his activity with ISIS and its media office by contributing to official videos and providing them with a software tool to organize, duplicate, and disseminate media to a wider audience while circumventing censors. Our affirming his conviction respects these legal lines….
The court also held that § 2339B clearly applied to Osadzinski's behavior:
We have no difficulty concluding that Osadzinski's actions qualified as a "service" that materially supported ISIS. Recall that the statute defines "service" to include "expert advice or assistance" "derived from scientific, technical or other specialized knowledge." Osadzinski provided exactly that. He used his computer training to create and deploy a computer script that duplicated troves of ISIS propaganda to circumvent the censorship of ISIS media online. He then instructed other ISIS supporters on how to use the script to achieve the same objective. In doing so, he provided material support to ISIS (and its media campaign) within the meaning of § 2339B….
Osadzinski emphasizes that the term "service" in § 2339B, as construed in HLP, extends only to concerted speech activity—that which is addressed to, coordinated with, or directed by ISIS. Again, we accept Osadzinski's base assumption that his offense conduct entailed expressive activity. We nonetheless conclude that his conduct unambiguously qualifies as concerted activity.
HLP did not present the Supreme Court with an occasion to drill down into how much "coordination" or "direction" is required to amount to the provision of "services" within the meaning of § 2339B. The line dividing concerted conduct from independent advocacy will doubtless emerge as courts continue to consider challenges to convictions under § 2339B. We need only decide whether Osadzinski's conduct clearly falls on the proscribed side of that line.
It did. Osadzinski acted in response to what he perceived to be a solemn directive from ISIS contained in the Inside 8 video: "Support your khilafah on the digital front" by "adopt[ing] the messaging put out by its official media," and "striv[ing] to disseminate it far and wide." In discussions with the undercover law enforcement agents, he explicitly referenced Inside 8's directive: "[I]f they close one account, open another three. And if they close three, open another 30." And he sought to do just that.
For months, Osadzinski labored diligently to answer ISIS's call for help in waging its media campaign. He assisted ISIS's media offices by contributing English subtitles and a voiceover to their videos. He compiled and organized a massive database of high-resolution ISIS videos for future distribution. He designed a program to automatically organize and multiply ISIS content online. And he taught fellow ISIS supporters how to do the same, spending hours over several days to assist with troubleshooting. Through these actions, Osadzinski propelled himself far beyond the role of an independent advocate, effectively fusing his voice with that of ISIS's media bureaus by improving, contributing to, compiling, organizing, and designing a tool to explosively distribute their official publications.
Throughout, Osadzinski coordinated his actions—or, at the very least, attempted to coordinate them—with ISIS members. At least twice he reiterated to Agent 3, "[i]f any brothers need help with security, tell them to come to me." When Agent 1 offered to put Osadzinski in touch with ISIS's official media bureau, he replied that he hoped to do so "in the near future." He later invited Agent 3 to share his ISIS media channels with "anyone [he] trusted." When Agent 2 requested guidance on how to run the computer program that he could take back to ISIS members, Osadzinski did not hesitate. He even wrote a step-by-step instructional guide for any ISIS follower to use.
Osadzinski planned to go even further. He explained to Agent 3 that he intended to convert his comprehensive archive of ISIS videos into a torrent that could be spread widely with minimal risk of censorship. He even suggested working in tandem with ISIS's official media bureaus to help them organize their online content. Through the dissemination and deployment of his code, Osadzinski hoped that "the brothers who have access to the disorganized al-Furat Media and al-Hayat Media Center channels will be able to organize them or give me access to them so that I would be able to organize them." Those are not the words of an unassociated or independent advocate. They are more suggestive of what Osadzinski had at that point become: a self-deputized IT servicer for the Islamic State.
Osadzinski highlights that at one point in June 2018 he declined Agent 3's invitation to connect with ISIS members. While true, Osadzinski explained that he did so only because he knew he was being watched by the FBI. As soon as he believed the surveillance had ended, he resumed coordination with ISIS. By August 2019, he proclaimed that "they gave up following me" so "now I am making as much jihad as possible." That comment, compounded by dozens of others like it, reflects Osadzinski's expressed intent to coordinate with ISIS.
Taken together, the totality of the record refutes Osadzinski's claim that he had no idea his conduct might violate § 2339B. Time and time again, Osadzinski took concrete action in direct response to ISIS's call for help to combat online censorship. He did so in attempted coordination with ISIS's official media bureau and members with the expressed intent for that coordination to deepen. Such conduct is inconsistent with independent advocacy and is proscribed by § 2339B.
In the final analysis, then, … [Osadzinski] attempted to engage in activity coordinated with or directed by a known foreign terrorist organization. Such activity is both unprotected by the First Amendment and clearly violative of § 2339B….
