Protect His Speech: The Case for Al-Timimi

The United States v. Ali Al-Timimi is a complicated case in the protection of free speech. To a certain extent the argument is representative of a larger societal problem—the appropriateness and protection of voicing dissent against one’s government. Does this case exemplify unjust reaction to vocal dissent? Or, rather, based on the decision does vocal action often lead towards intent to harm? It is highly debatable as to whether or not Al-Timimi’s vocal dissent was intended to cause direct and unlawful harm to the United States.

Using the landmark case of Brandenburg as historical precedent, I will argue that the immediate and imminent incitement standard applies to Al-Timimi’s case. While many would argue that based on the information presented in the case Al-Timimi’s sentence was justified, I will argue that given the circumstances—both content, environment and time—his conversation was protected under the first amendment. Therefore the conviction is unconstitutional and in direct opposition to a landmark case which clearly established that the voice of dissent—perhaps not always favorable—is protected. This is a tough position to argue given the evidence, but one that deserves special attention if we are truly scrutinizing the first amendment.

According to the Brandenburg case, “even threatening speech is protected, said the Court, unless the state can prove that the ‘advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’” (Brandenburg v. Ohio, 1969). Granted, there is significant evidence which suggests that the individuals Al-Timimi talked to on September 16, 2001 did indeed travel to Afghanistan within the following days. However, and this is where one must recognize protection of Al-Timimi—the actions of the Muslim men after the conversation have little to no allegiance to Al-Timimi and his words.

One must put into perspective the timing of this incident. The atmosphere of the country post-9/11 was less than supportive for the Muslim and Middle Eastern populations. President George W. Bush himself made it clear through his rhetoric that “these people” would face severe consequences for their actions. What was meant to be an indictment against the 9/11 hijackers specifically became a way in which Americans began to criminalize the Middle Eastern population as a whole.

For Muslim populations both emotions and fear were high following the 9/11 terrorist attacks. It would seem completely plausible that Al Timimi’s speech was a reaction to the reaction. When one is placed in a position of the “Other,” often times the most immediate response (and this was immediate—a total of 5 days after the attacks) is to respond with anger. Language is powerful, but action is even more powerful. As far as the records indicate, Al-Timimi himself did not partake in any direction action pertaining to treason. It was the Muslim men he had a conversation with who ultimately took the action in which Al-Timimi did not. Where is their responsibility in this incident?

The Brandenburg precedence clearly states that “to be punishable, the speech in question must be more than ‘talking big’ or ‘blowing off steam’” (Tedford, Herbeck 67). Given that the timing of this conversation can very well be interpreted as a period of “blowing off steam,” it would seem that the circumstances and content in which Al-Timimi spoke was protected under the first amendment.

Let us visit an example that can be applied to the Al-Timimi case when it comes to speech that is either protected or intends to incite lawless action. There is no denying that hate speech is a very realistic aspect of our country’s rhetoric. Take for example the usage of the word “fag” in an utterly derogatory way. There is no denying that the language itself is despicable—it really has no place in our national dialogue. However, it is a form of speech that is and should be protected under the first amendment. I will take it a step further and more controversially state that phrases (which have been used—witnessed myself by children) such as “That fag should die” is speech that again, while horrendous, is protected under the first amendment. Now. If someone said this phrase to a group of individuals and consequentially one of them enacted out this action we cannot blame the speaker. Yes, the language was destructive.

For those who argue that Al-Timimi incited these people to kill American soldiers in Afghanistan, I would direct them to the ruling by the U.S. District Court in Maryland who defended a publishing company’s right to publish Hit Man—an instructional guide on how to commit murder for hire. The lawsuit arrived after James Perry killed three people and it was discovered that he had a copy of Hit Man. Once again, the material itself is not beneficial to society as a whole but to judge an individual’s action based on the words of another is to be ignorant to the fact that human beings are inherently personally responsible. We may blame the people who speak but ultimately it is up to the listener to take action. The Maryland district court stated that “First Amendment protection is not eliminated simply because a publication of an idea creates a potential hazard” (Paladin, 73). Potential is a key word here. There is an assumption that something harmful is going to happen with hateful and language of dissent. This is not always true nor does it provide justifiable cause to inhibit someone from speaking freely to a group of people. While the U.S. District Court’s decision was eventually reversed by the Appeals Court insisting that the informational guide was “aiding and abetting” a crime, I would argue that theoretically the Paladin precedent still remains correct. We can not control individuals consumption of a product and consequentially how they will interact with that product.

As far as philosophical perspective is concerned, I believe that Edwin Baker’s Liberty Theory most directly applies to this case. The liberty theory, at its foundation, advocates for the protection of individuals to determine and make their own choices regarding certain controversial subjects. Baker insists that freedom of speech is inherently individual-based in that it is not only something that contributes to the collective good but to the value of the individual. When placed in context of the Al-Timimi case, while the content of the conversation may not have been beneficial for the collective good, it was Al-Timimi’s speech. Even if it was construed as inciting imminent danger, the language represented value to Al-Timimi who was upset at the time.

Emerson’s “Expression-Action:” theory also is applicable to this argument in that there is a distinct different between the expression of words and taking those words into action. Again—I go back to the argument that we cannot blame the speaker for others’ actions. Personal responsibility has such a high stake in this argument. Knowledge and speech does not always translate into action nor did Al-Timimi’s verbal actions result in him partaking in any physical action.

With all of this said I would advocate Al-Timimi receive no sentencing. There is strong evidence to suggest that he was very direct in his statements to these Muslim men. However, his individual participation does not justify sentencing. Religiously based or not, freedom of speech plays an important part in the consciousness of our country. While not always agreeable nor with positive results, it is a fundamental right in which we must preserve.