First Amendment Protects Islam Expert’s Post-Sept. 11 Speech Urging People to Join Taliban

An excerpt from today’s long opinion in U.S. v. Al-Timimi, by Fourth Circuit Judge James Wynn, joined by Judges Stephanie Thacker and Pamela Harris:

Ali Al-Timimi was convicted based entirely on words he spoke in the immediate aftermath of the September 11, 2001 attacks—words that were inflammatory, disturbing, and deeply offensive, but that urged no concrete criminal plan and did not provide operational assistance for the commission of any particular offense. For two decades, Al-Timimi has been imprisoned or confined to his home while his criminal case has made its way through appeals, remands, motions, and delays.

Because the Constitution forbids criminal punishment for protected advocacy—however odious the content of that advocacy—we conclude that Al-Timimi’s speech remained protected under the First Amendment….

The court concluded that the speech (some details of which are quoted below) wasn’t unprotected incitement:

Plenty of speech encouraging criminal activity is protected under the First Amendment. Abstract “advocacy of lawlessness” is protected speech. “[M]ere encouragement” of unlawful activity “is quintessential protected advocacy.” The “teaching of the moral propriety or even moral necessity for a resort to force and violence” retains First Amendment protection.

But such speech loses First Amendment protection when it bears certain additional characteristics: Speech advocating lawlessness or the use of force is unprotected when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969). In this context, the Supreme Court has distinguished between “mere abstract teaching” of the “moral propriety” or “necessity” of violence, on the one hand, and “preparing a group for violent action and steeling it to such action,” on the other. The state may criminalize speech that is aimed at accomplishing the latter without running afoul of the First Amendment…. Putting this all together, incitement under Brandenburg requires speech that is intended and likely to produce lawless action, quite soon, and in a definite (rather than abstract) way….

Turning to the facts of the case before us: {Well before September 11, 2001, Ali Al-Timimi helped found an Islamic Center called “Dar al-Arqam” in Falls Church, Virginia, and served as a lecturer there. Though not a cleric, Al-Timimi was viewed as a respected elder and a person knowledgeable about Islam, and adherents of Islam looking to learn more about their faith would attend his lectures. Numerous young Muslim men came to know Al-Timimi, and each other, through Dar al-Arqam.}

Al-Timimi’s speech [to those men that formed the basis for the prosecution] urged criminal activity that was neither sufficiently imminent nor sufficiently definite to lose First Amendment protection under Brandenburg. He encouraged those gathered at Kwon’s home on September 16 [2011] to “leave the United States,” “[j]oin the mujahideen” to “fight the Indians or the Russians or the Americans,” and “defend Afghanistan.” He advised them to go to Pakistan, “join the LET [Lashkar-e-Taiba] and get some training from the LET camps.” He said they should “go through Royer” to connect with LET. [Kwon and Royer were among the men in the group that turned to Al-Timimi for advice. -EV]

But Al-Timimi specified no time frame in which these actions should be completed and no details as to how they should be carried out. He did not suggest where in Pakistan the men should go, or which LET camp they should attend. He urged the men broadly to engage in jihad against any of three different nations—India, Russia, or the United States. He said they should “defend” Afghanistan because they had a religious obligation to do so. Because these exhortations were vague and general, they fall short of advocating the imminent lawlessness contemplated by Brandenburg….

[Al-Timimi’s] words did not create the “emergency that makes it immediately dangerous to leave the correction of evil counsels to time.” Abrams v. U.S. (1919) (Holmes, J., dissenting). Whatever lawlessness Al-Timimi urged, it was neither imminent nor definite, and his speech therefore was not unprotected under Brandenburg.

The court also concluded that Al-Timimi’s speech wasn’t unprotected solicitation or aiding and abetting:

A separate category of unprotected speech is that which facilitates or solicits a particular crime. “Facilitation—also called aiding and abetting—is the provision of assistance to a wrongdoer with the intent to further an offense’s commission.” United States v. Hansen (2023). Speech constituting facilitation may be proscribed without offending the First Amendment because liability in such cases is not premised on mere advocacy of crime; rather, it relies on defendants’ “successful efforts to assist others by detailing to them the means of accomplishing the crimes.”

Solicitation is “the intentional encouragement of an unlawful act.” Such speech “intended to induce or commence illegal activities” enjoys no First Amendment protection. The Supreme Court has long recognized that speech constituting “an integral part of conduct in violation of a valid criminal statute” is unprotected because of its nature as inseparably bound up with the criminal act. Giboney v. Empire Storage & Ice Co. (1949). {[I]mminence is not necessary for speech to constitute unprotected solicitation or facilitation: “The question of whether criminal conduct is ‘imminent’ is relevant for constitutional purposes only where, as in Brandenburg itself, the government attempts to restrict advocacy, as such.” Where a defendant uses speech to assist another in furthering the commission of a particular criminal offense, or to intentionally encourage commission of a specific crime, the government need not prove that the defendant is advocating imminent lawless action to establish criminal liability.

Neither facilitation nor solicitation requires the provision of physical assistance completing the crime; “for both, words may be enough.” But, crucially, “both require an intent to bring about a particular unlawful act.” …

The line between, on the one hand, solicitation or aiding and abetting of crime, and, on the other hand, incitement of imminent lawlessness under the Brandenburg framework, has not always been described with precision in the case law. For example, some state courts have fully collapsed the categories of incitement and criminal solicitation or facilitation into one…. But … the Supreme Court has [recently] begun to more clearly delineate the various categories of unprotected speech….

To aid and abet a crime is to provide “assistance to a wrongdoer with the intent to further an offense’s commission.” Culpability under an aiding-and-abetting theory is thus “premised, not on defendants’ advocacy of criminal conduct, but on defendants’ successful efforts to assist others by detailing to them the means of accomplishing the crimes.” “A defendant is guilty of aiding and abetting if he has ‘knowingly associated himself with and participated in the criminal venture.'”

Al-Timimi did not help anyone to commit crimes. To be sure, he encouraged them. But the most that he did to further the commission of these crimes was to advise individuals—in quite general terms—on how to react to the September 11 attacks: Leave the United States, “[j]oin the mujahideen,” and fight India or Russia or the United States. “[J]oin the LET and get some training from the LET camps” by “go[ing] through Royer.” Or, in lieu of fighting, at least “leave America” and go to “live with the good Muslims” in another country. A few days after those initial conversations, he gave general advice to Kwon and Hasan on evading detection while traveling: “don’t take anything suspicious”; act scared and ask for a lawyer if stopped. Nor did Al-Timimi facilitate the formation of any alleged conspiracy.

The common thread in aiding-and-abetting cases—indeed, a necessary component for criminal culpability—is participation. And although participation can be comprised of speech alone, Al-Timimi’s speech was not participation but was merely encouragement.

Count 2—the only solicitation crime—charged Al-Timimi with soliciting others to commit a crime of violence: namely, treason, by levying war against the United States …. This charge fails for much the same reason as the aiding-and-abetting charges: While Al-Timimi certainly encouraged unlawful acts generally, the evidence did not demonstrate that he encouraged, with the requisite intent, a specific unlawful act.

The Government argues that Al-Timimi’s case is materially indistinguishable from United States v. Rahman (2d Cir. 1999), in which the Second Circuit held that a cleric’s speech soliciting certain unlawful acts was unprotected by the First Amendment…. But … Rahman’s speech, unlike Al-Timimi’s, directly solicited specific criminal acts to occur in a specific time frame: He told another to “turn[ ] his rifle’s barrel to [Egyptian] President [Hosni] Mubarak’s chest, and kill[ ] him” during a planned 1993 visit by Mubarak to the United States. The specificity and concreteness that characterized Rahman’s speech is absent from Al-Timimi’s….

Geremy C. Kamens represents Al-Tamimi.