“Are words like matches?” This question continually came to mind throughout the court case concerning Ali Al-Timimi and whether or not his words posed a legitimate threat to the safety of the citizens of theUnited Statesor if this was just another acceptable use of the First Amendment’s rights to free speech. Throughout the years philosophers have toyed with the idea of “how free is free speech” and if and where there should be a line created to omit certain types of speech that could be considered dangerous. Important things to take into account during the judgment of a case such as this are what kind of levels of free speech philosophy do Al-Timimi’s words apply to and how the evidence of the prosecution, defense and prior knowledge concerning cases similar to this proved that the speech was permissible or punishable. This judgment will come to a conclusion based on the exploration of these past cases which are also supported by evidence of my peers.
One of the terms heard quite often throughout the case was “immanent harm” and whether or not Al-Timimi’s words put people in any sort of danger. Immediate thoughts in this case are “if Al-Timimi didn’t go out saying ‘go and kill Americans now’ then why does the government wish to punish him?” However, the power of persuasion and anti-American speech, no matter how much it is covered, can lead to horrible consequences if acted upon by others. Before making a decision on this case, there must be certain established guidelines that will act as an assistive scope in which to look at the risk of Al-Timimi’s speech. One to begin with is whether or not theU.S.government has the authority to put the interests of their country ahead of any free speech laws that currently exist. The prosecution’s request to note the wartime precedent highlights their need for governmental scrutiny on the case, especially that of minimal scrutiny and the “clear & present danger test” in which the government has full control to override certain free speech declarations.
One case concerning the use of minimal scrutiny by the government during wartime is that of Dennis v. United States where Eugene Dennis, a member of the Communist Party USA was tried for his anti-American remarks during wartime in concern that he was conspiring to overthrow the United States government. Dennis, an American citizen like Al-Timimi, was convicted of violating multiple clauses of the Smith Act, which states that no one shall “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence” or “to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence” (U.S.C. 1946 ed). Upon implementation of the clear & present danger test, the prosecution noted that “Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech” and Dennis was found guilty for intent to conspire against the government.
Dennis was convicted of these violations as he was a declared member of the Communist Party USA, but Al-Timimi on the other hand was a lecturer at the Center for Islamic Information and Education, not any declared terrorist or extremist groups. The crimes which he is convicted for occurred in a small meeting at the house of Yong Kown in which his indictment states that in September Al-Timimi told his counterparts in the meeting that “the time had come for them to go abroad to join the mujahideen engaged in violent jihad in Afghanistan” along with information on how to reach the Lashkar-e-Taiba extremist training camp and how to obtain visas to the camp’s location in Pakistan (US 2004) . These, among other statements by Al-Timimi at this time of war have the ability to violate the Smith Act just as Dennis’ case did. Al-Timimi’s words do in some ways encourage acts that could lead to violence in theUnited States and among the government, but did not outright tell his followers to hurt others. However, the next type of case that the Justices of Al-Timimi’s case must review are those during peacetime and if Al-Timimi should be punished on account of his speech that did not include physical action against the United States.
During the in-class argument of Al-Timimi’s case, the defense used the past case of Brandenburg v. Ohio to support first amendment citizen rights in situations concerning threatening speech during governmental peacetime. Brandenburg, who was convinced under Ohio state law, was tried for “advocat[ing] . . . the duty, necessity, or propriety [395 U.S. 444, 445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and though Brandenburg never held any sort of weapon as some of his counterparts did in the recorded Klu Klux Klan video he was in, he did state that “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken” (Brandenburg v. Ohio, 1969). Brandenburg was released on account that his words did not violate what his defense called a “bald definition” of the crimes he was committed of.
A case more applicable to Al Timimi’s in terms of the use of weaponry and instruction is that of Rice v. Paladin Enterprises in which Paladin Press published the book Hit Man: A Technical Manual for Independent Contractors which was essentially a detailed manual of how to kill another human being. The book included recommendations of which specific weapons to use, ranges from which to shoot and even how to make a sniper scope. The case was sparked by James Perry’s triple murder in 1993 in which Perry admitted to learning most of the information he used to kill murder three people from Hit Man. Perry of course was convicted and sentenced in a separate case but allegations against the publishing company were brought upon the fact that the book, although considered free speech under the First Amendment upon publishing, essentially aided in murder. The court ruled that Paladin Press was liable for legal action if they did not settle the lawsuit put against them in the case. In addition to the ruling against the publishing company, the verdict was given during government peacetime in which minimal scrutiny and the clear & present danger test would not have been necessary. The most critical point to take away from this case in terms of Al-Timimi’s is that though Hit Man did not directly tell James Perry to go out and murder three people, the book gave Perry the necessary tools to do so. The Judges of Rice v. Paladin Enterprises note “Hit Man does not merely detail how to commit murder and murder for hire; through powerful prose in the second person and imperative voice, it encourages its readers in their specific acts of murder”. If “powerful prose in the second person and imperative voice” is all it takes to be guilty for aiding in a crime, would Al-Timimi’s remarks urging his counterparts to fight for the jihad not be considered unlawful? These are the terms among previous cases that the Justices must take into account when making their final decision.
In comparing the words of Dennis, Brandenburg, Hit Man and Al-Timimi, which speech should be considered the most threatening? The most dangerous? While reviewing each of these four cases and the in-class argument, it is important for a judge to note whether or not remarks are made during wartime. Brandenburg’s were comparably the least threatening among the cases but still insinuated some sort of harm against the United States government. Now the question the Justices must struggle with is “When to limit free speech?” and “When should speech be protected/punished?” Among the numerous philosophical theories concerning the freedom of speech, justices must look at the works of philosophers such as Zechariah Chafee, Thomas Emerson, and Edwin Baker. Chafee believes that one can speak freely about individual interests and social interests. Under Chafee’s rules, Al-Timimi’s speech would be considered free unless of course it affected public safety of search for truth and “in war time, therefore, speech should be unrestricted by the censorship or by punishment unless it is clearly liable to cause direct and dangerous interference with the conduct of the war” (Tedford et al., 435). The problem with attempting to judge Al-Timimi’s speech through Chafee is that it can be slightly ambiguous to say if his urging his counterparts to join the training cap will end up causing “direct and dangerous interference.” This would be true by looking at possible consequences in the future which would include those who went to the extremist training camps inflicting harm onUnited States soldiers so in the long run, Chafee’s theory would prove Al-Timimi’s words punishable.
Emerson’s theory attempts to find the line between “expression” and “action.” He notes that people are allowed to believe whatever they prefer on an issue and may communicate it however they please (Tedford et al., 438). The only times that Emerson argues that speech should not be protected is if it is seditious opinion “that go[es] beyond advice and persuasion[and] treasonous conduct, which would mean that it would be up to the Justices to decide whether or not Al-Timimi’s speech is treasonous but it surely is not action and does not go beyond advice and persuasion. Baker gives much more leeway for free speech in that his theory recognizes all speech as free less includes what could be considered as “fraud, perjury, blackmail, espionage, or treason” (Tedford et al., 442). As with Emerson, Al-Timimi’s would be up to the Justice’s discretion whether or not his speech would be considered treason. Though the theory of free speech can often be vague, it still serves as a guide from which to judge if certain speech should be protected or punished by the First Amendment.
Upon review of all prior cases concerning free speech in terms of anti-American, hateful, and/or dangerous speech (direct and indirect) it proves difficult to come to a decision of whether or not Ali Al-Timimi’s urging of his fellow group members to go to extremist training camps, his paintball training session with them or his negative remarks concerning the space shuttle Columbia should be punishable. In consideration of past cases such as Dennis v. United States and Rice v. Paladin Enterprises, Al-Timimi would be considered guilty as his speech not only violated the Smith Act, but his speech, though indirect to the actions committed, still serves as an aiding source to which conspiring against the United States government occurred. However, in terms of Brandenburg v. Ohio, Al-Timimi’s speech would have been permissible on account that there was no actual harm done. In terms of the theorists, all of the afore mentioned could lead Al-Timimi’s speech to be punishable as it could be considered treason and could likely affect things negatively for theUnited States in the war. The one piece of evidence that the prosecution of the in-class debate discussed that proves Al-Timimi’s speech to be punishable by law is that his urging his fellow group members, though indirect, to join and fight for the jihad could prove detrimental for United States soldiers during the current wartime precedent. Al-Timimi’s group members followed through with his persuasion and now all of them must receive the necessary punishments. Words can indeed be like matches, especially when there is a high risk that they will ignite.
Tedford, Thomas L., Dale Herbeck, and Franklyn Saul. Haiman. Freedom of Speech in the United States. State College, PA: Strata Pub., 2005.