Al-Timimi and Brandenburg

“While bodies were still being pulled” from the wreckage that once was the World Trade Center, Muslim scholar Ali Al-Timimi held a meeting to discuss how Muslims could protect themselves about what he believed was an imminent attack on the Muslim people. When considering this case alongside the Brandenburg case, the biggest issue that I see with both cases is defining immanency. How can we know what words will incite people to act in a particular way? Why does it matter if we are in a state of war or a time of peace? It is my belief that the lower court ruled unconstitutionally in this case. The country was not in a state of war. It was in a state of shock, disbelief and mourning, yes, but war had not officially been declared. However, I would argue that Al-Timimi’s speech should have been protected even if we were in a state of war .

How can one decide if another’s words will inspire an attack? How can anyone be sure that the words they speak on a daily basis won’t incite violent action from another person? True, there are cases where words are meant to incite and inspire action. It is also true that within weeks of September 11^th and the meeting that Al-Timimi held, his followers travelled to Afghanistan to undergo training. Some have said that Al-Timimi praised the attackers responsible for the largest terrorist attack on American soil. According to a witness testimony during the case, “Al-Timimi stated that the attacks may not be Islamically permissible, but that they were not a tragedy, because they were brought on by American foreign policy .” We cannot punish someone for expressing their own opinions, no matter how much we dislike what they have to say. Such punishment creates even more serious problems. However, Al-Timimi did more than just express an opinion; he encouraged others to go receive training for an attack against he felt was imminent against his people.

Words are not matches; we must work to ensure that speech remain protected for all. When we protect some speech but not all speech, it becomes a slippery slope. Where do we draw the line and more importantly, how is it that we decide what is protected and what isn’t? There are many groups or people whose opinions I do not agree with but I would rather their speech be protected and have to listen to them voice their opinions than never hear anyone’s opinions.

Alexander Meiklejohn’s idea of Absolute Protection for Political Speech states that “freedom of speech” is “absolutely privileged and may not be abridged – even by the clear-and-present-danger rule (Tedford and Herbeck 437).” Meiklejohn would also propose that words are not matches and that we should punish the actions themselves, not the speech that some might believe brought on that action.

I would absolutely uphold Brandenburg v. Ohio and overturn the lower court’s ruling on the Al-Timimi case. Brandenburg v. Ohio required that the government prove that the danger presented was real, not imaginary and even protects threatening speech. The only case in which dangerous or threatening speech can be punished is if 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.”

It could be argued that Al-Timimi’s speech was “talking big” or “blowing off steam” since he himself did not travel to the Middle East to receive training. Tedford and Herbeck explain that according to the Brandenburg decision, the “expression must have a serious intent to incite illegal action… being urged must be imminent—that is, immediate, impending to occur.” Al-Timimi’s followers did not IMMEDIATELY fly out to Afghanistan, nor did they ever participate in unlawful action. I would argue that in light of the attacks on September 11, 2001, everyone was acting on raw emotion; not only Al-Timimi but those responsible for prosecuting him as well.

It is time that we start holding individuals responsible for their actions. In the end, it wasn’t Al-Timimi’s words that sent his followers to Afghanistan. It is impossible to know if they would have had that idea on their own but ultimately it was their own decision to go across seas and receive training. We have to stop placing so much emphasis on systems and placing blame in anything but the actions themselves and those that committed unlawful actions. The speech itself is not the problem. The problem lies in a society that cannot hold themselves responsible for anything, placing blame on anyone but themselves whenever they possibly can.