Where Free Speech Stops

Even though I'm an attorney, I don't oppose prison time for sleazebag lawyers who cross ethical lines and ruin lives. Yet the justice system has it all backwards when it locks up defense attorney Lynne Stewart.

Stewart is a 70 year-old grandmother and criminal defense attorney who represented many unpopular clients in her long and distinguished career. Perhaps her most unpopular client was Omar Abdel Rahman, the so-called "Blind Sheikh" who was convicted of serious terrorist offenses and sentenced to life imprisonment in 1996.  Based on events arising out of her representation of Abdel Rahman, Stewart was charged with providing "material support" for a terrorist organization. A federal appeals court recently upheld her subsequent conviction and Stewart now languishes in the Manhattan Correction Complex.

Behind the explosive legal labels, the raw facts justifying Stewart's incarceration are that she passed letters and messages to Abdel Rahman on three separate occasions and that she once spoke to the media at her client's behest. At the very worst, Stewart helped Rahman publically announce that he no longer supported a then-existing ceasefire between his fundamentalist Islamic Group and the Egyptian government. By facilitating her client's communications, Stewart also violated prison regulations known as Special Administrative Measures (SAMs), which essentially prohibited any contact between Rahman and the outside world.

When push comes to shove, all that Stewart is undeniably guilty of is zealous advocacy on behalf of her client. Though her own leftist politics wildly conflicted with her client's Islamic fundamentalism, Stewart nonetheless felt obligated to respect her client's desire to return to his homeland. Believing that publicity might pressure Egypt to repatriate Rahman, Stewart relayed Rahman's political message to the media. This was necessarily a public announcement and the Clinton administration did not levy criminal charges against Stewart at the time. After all, no harm came to any person because of Stewart's actions. Then came 9/11 and soon enough the Bush administration set its sights on the radical lawyer.

The real problem, of course, is that Stewart's client was a deeply loathed terrorist. No doubt, many good reasons warrant loathing Sheikh Rahman and all that he says. Yet our Constitution traditionally protects even hated political speech. Here it is worth emphasizing that the only misconduct at issue is speech - no person suffered any physical harm on account of Stewart's actions. Without question, if Rahman had even the faintest hint of First Amendment rights, the SAMs' blanket prohibition on political speech and contact with the outside world would be deemed unconstitutional. But because she worked for a client living in a First Amendment dead zone, Stewart herself is now in prison.