In the annals of true-but-irrelevant statements, a snippet from a recent Fourth Circuit Court of Appeals decision deserves an honored place. “The First Amendment’s protection does not depend on the popularity or palatability of the message conveyed,” wrote the three-judge panel in United States v. Al-Timimi. “On the contrary, it is most vital when speech offends, disturbs, or challenges prevailing sensibilities.” For good measure, the defense attorney whose client was vindicated by the unanimous decision summarized the case as proof that “the government cannot criminalize speech simply because the ideas expressed are unpopular, offensive, or challenge those in power.”
What message prompted this soaring defense of the First Amendment? What expression challenged “prevailing sensibilities” or “those in power,” yet faced the heavy hand of the law?
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In 2005, a Virginia jury found defendant Ali Al-Timimi guilty of inducing others to use prohibited weapons, soliciting others to commit treason against the United States, attempting to contribute services to the Taliban, and several other charges in the same spirit. According to the Fourth Circuit, a group of men who attended Al-Timimi’s lectures at a Falls Church mosque “began making preparations to engage in jihad in the form of combat.” When members of the group told Al-Timimi that the FBI was on to them, “Al-Timimi chastised them for making their training efforts too obvious. . . . he advised them that they should not cease meeting altogether, because that could raise suspicion, but rather that they should be more discreet.”
After 9/11, Al-Timimi addressed the group, telling them to unplug all electronics and “not repeat anything that was said.”
“He told us that we need to do three things,” a member of the group would later testify. “First, he said we need to repent; second, we need to leave the United States; and third, he said, ‘Join the mujahideen.’ . . . it doesn’t matter if we fight the Indians or the Russians or the Americans, that this is all legitimate jihad.”
Several of Al-Timimi’s mentees did so. He continued to advise these men on “how best to evade detection” and “what to do if they were stopped by the authorities.” (They should “act scared” and ask for their “lawyers and . . . our mothers.”)
None of this is mere “unpopular” speech. Al-Timimi was the ringleader of a terrorist cell, with designs on a holy war against the United States. Yes, he primarily used words to facilitate this war. But he was not discussing these topics in an abstract or academic way. His words helped steel his acolytes’ resolve to commit treason.
Our law has long recognized that words can be dangerous, even criminally so. That is why we have rules against crimes like solicitation, incitement, and conspiracy. To be sure, the line between protected speech and speech in furtherance of criminal behavior is fuzzy. But courts are perfectly willing to uphold convictions involving, for example, antitrust violations based on this distinction.
Despite these precedents, the court of appeals held that Al-Timimi’s convictions could not be squared with the First Amendment. Al-Timimi did not commit incitement, the court concluded, because his “exhortations were vague and general,” failing the “imminent lawless action” standard set out in 1969’s Brandenburg v. Ohio. Though he “encouraged unlawful acts generally,” he was not guilty of criminal solicitation because “the evidence did not demonstrate that he encouraged, with the requisite intent, a specific unlawful act.” This may seem like a loophole for bad actors, but the court reminds readers that “plenty of speech encouraging criminal activity is protected under the First Amendment.”
This is true, but plenty of speech is also not protected. The only standard the court employed to tell if Al-Timimi’s speech was protected was whether the criminal acts he encouraged were sufficiently specific. Since that standard can only be resolved by intuition, it’s probably best left to a jury—like the one that concluded Al-Timimi’s encouragement, advice, and instruction did meet that standard.
One wonders what is left of crimes like solicitation and conspiracy under the court’s reasoning. After all, prosecutors could have hardly hoped for better evidence in their favor. The men even testified at trial to Al-Timimi’s decisive role in helping them overcome their fears and join terrorist groups. If telling men you know are heavily armed to attack America is too vague and general to warrant prosecution, then any form of solicitation will be extremely hard to prove.
The Supreme Court will not likely review, much less overturn, this case. But it should be on the lookout for cases that allow it to re-establish the proper relationship between national-security concerns and the First Amendment.
The Court has already made clear that limitations on dangerous speech tailored to prevent terrorism are constitutional, even if applied liberally. In Holder v. Humanitarian Law Project (2010), the Court held that simply explaining the law to terrorist organizations may be prosecuted as material support for terrorism consistent with the First Amendment. “Given the sensitive interests in national security and foreign affairs at stake,” the majority wrote, courts should defer to the political branches when they “have adequately substantiated their determination that . . . it was necessary to prohibit” acts, even speech-based acts, that further terrorism.
In spite of this, lower courts have consistently balked at the notion of enforcing laws designed to disrupt terrorist networks before they begin victimizing Americans. They have set the bar for conviction so artificially high that, as in Al-Timimi’s case, no prosecutor could possibly reach them.
The First Amendment does and should protect even abhorrent expression. What got Al-Timimi prosecuted, though, was not the abhorrence of his expression. It was that his speech played an important role in getting dangerous people to take up arms against the United States. Judges’ appeals to the “vitality” of “offensive” speech in letting him off the hook ring hollow.
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