In 1999, Congress attempted to ban animal cruelty by prohibiting the conscious creation, sale, or depiction of animal cruelty with foreign or commercial gain as the objective. Congress was most concerned about “crush videos,” in which women wearing high heels, or no shoes at all will afflict pain upon animals with their feet. The “crush videos” appealed to a narrow group of individuals with very specific sexual obsessions. However, the law instated 18 U.S.C. §48 , covers all depictions of animal cruelty as long as original behavior is already illegal in the state where the creation, sale or possession occurs.
In the 2005 case, United States v. Stevens, Robert Stevens was convicted on three different counts of intentionally selling portrayals of animal cruelty in his sale of video footage of organized pit bull dog fights and hunting expeditions. Stevens had not been a part of the filming but had edited the tapes and added his own narration and advertising design for the films.
The US Supreme Court overturned Stevens’ conviction, arguing the ruling was unconstitutional as it was centered in prohibiting the substance of protected speech. The court deemed that although “the cause of animal protection is to our sensibilities,” it is not a compelling governmental interest in regards to free speech. The court offers three reasons as to why “preventing cruelty to animals” should be a compelling governmental interest "that trumps an individual’s free speech rights"(US v Stevens). As the Government recognizes, Congress and the states already have in place comprehensive statutory schemes to protect animals from mistreatment. Considering the three rationales presented by the court, §48 fails the test of strict scrutiny – it has no compelling reason to regulate or punish the speech and it is not customized to narrowly achieve said interest.
The major doctrinal grounding that was discussed within US v Stevens was New York v Ferber. The court originally held that the restricted speech under §48 is technically protected under the First Amendment. The Court argues that only one established class of unprotected speech, even somewhat similar to that prohibited by §48 is child pornography. New York v Ferber instigated a number of conversations and considerations in determining whether or not to create an entirely new category of unprotected speech stemming from animal cruelty. Yet again, the Court emphasized that despite the emotional appeal to prevent cruelty against animals, within the court there was no compelling evidence as to the governmental interest involved.
Another court case used, was within the governments argument. The government attempted to use the 1942 case Chaplinsky v Newhampshire as the foundational argument to create a new category of speech that would not be protected under the First Amendment. Chaplinsky v New Hampshire established that the court would test the value of the original speech against its social costs (worthwhile vs. worthless). Zechariah Chafee, Professor of Law at Harvard University recognizes two types of expression as identified in Chaplinsky v New Hampshire specifically, “that which serves an individual interest…and that which serves a more general social interest” (435, Tedford & Herbeck). Chafee believed the individual interest was important, albeit, should not be as heavily weighted as speech concerning the social interest. Chaffee recommends maximum protection for “worthwhile” speech that serves the social interest. On the other hand, “worthless” speech is punishable as it has no “constructive role for such expression in a free society’s debate over ideas” (436, Tedford & Herbeck).
Steven’s argues in his response to the government that using the “balance” as established in Chaplinsky v. New Hampshire diverges from the basic text of the First Amendment and previously established case law. As exemplified by the documentaries about dog fighting and slaughterhouses, along with literature concerning Spanish bullfights, §48 clearly covers protected speech. Another strong line of reasoning Stevens presents is in relation to briefs filed by animal rights groups who use similar images of animal brutality within their advocacy campaigns.
I believe after closely examining both arguments that I would uphold the decision of Congress. I do not believe there is any reason at this point to create an entirely new category of unprotected speech as in New York v. Ferber. In this case I would apply the harm theory, established by John Stuart Mill, exemplified in the landmark case of Brandenburg v. Ohio, which established an incitement standard which I would also apply when referring to US v Stevens.
Clarence Brandenburg was a leader in an Ohio chapter of the Ku Klux Klan. Brandenburg was recorded threatening violent acts against the president, Congress and the Supreme Court. The Supreme Court overruled the district court’s sentence affirming there must be a differentiation between the advocacy of ideas and the advocacy of illegal actions. The court determined the government was required to prove that the danger presented by a speaker was in fact real, not exaggerated or invented. Brandenburg v. Ohio went beyond the previous standard of measure of clear and present danger, to create an incitement standard, in which provocation of illegal action is both, likely to occur and will transpire immediately (67, Tedford & Herbeck).
We witness the opposite end of the spectrum from Zechariah Chaffee in Brandenburg v Ohio, in which we see the ideals of C. Edwin Baker reach fruition. Baker developed an argument for free speech based on self-fulfillment and participation in change, the liberty theory. These two values support the rights and autonomy of the individual. The liberty theory maintains that free speech does not protect a marketplace of ideas, but “an arena of individual liberty from certain types of governmental restrictions” (441, Tedford & Herbeck). Baker argued free persons should not allow speech to be defined for them; rather they should create their own definition. The liberty model protects most speech, except for violent or coercive expression which causes actual harm, or that which constitutes fraud, perjury, blackmail, espionage, or treason (442, Tedford & Herbeck).
As Stevens himself was not involved in any act of violence or creating a harmful environment for animals, he was merely narrating a film I believe he is proteted.

Synthesis

It seems my reservations upon entering Communications Rights & Law were unwarranted. I was concerned that I would enter the class with a preconceived notion of what should or should not be protected. I was most apprehensive that I would tend to protect the free speech of one individual or group because I agreed with what they were saying, but punish another person or group of persons for making similar statements, simply because I did not agree with them. Yet, as I examine my writings, my belief in certain philosophers, and my personal sentiments toward various cases, I seem to be an overall protectionist.
My writings have been founded in the beliefs of two major philosophers – both of whom assert the importance of self-fulfillment and independent expression within free speech. Thomas Emerson, professor at Yale, argues that the “freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses” (438, Tedford & Herbeck). Emerson observed the court’s responses to most theories of free-speech cases, deeming them vague and inconsistent. In an effort to establish a more comprehensive First Amendment theory, Emerson contends there must be a “distinction between “expression” and “action” (438, Tedford & Herbeck). Emerson’s expression-action theory scrutinizes the difference between one’s freedoms of expression, which allows the individual to communicate their beliefs through any medium, yet if expression develops into action, which can be controlled, an individual may be punished. I especially appreciated Emerson’s perspective on protection of statements of obscenity. “Most of what society calls “obscenity” is a form of expression fully protected under the expression-action theory. This includes books, films, theatrical presentations, sculpture, paintings, etc…. However, action consisting of live conduct could still be prohibited” (439, Tedford & Herbeck). I value Emerson’s resolution that art and print should hold protection, while live conduct would be punishable.
Similarly to Emerson, C. Edwin Baker, Professor of Law at the University of Pennsylvania developed an argument for free speech based on self-fulfillment and participation in change, the liberty theory (441, Tedford & Herbeck). These two values support the rights and autonomy of the individual. The liberty theory maintains that free speech does not protect a marketplace of ideas, but “an arena of individual liberty from certain types of governmental restrictions” (441, Tedford & Herbeck). Baker argued free persons should not allow speech to be defined for them; rather they should create their own definition. The liberty model protects most speech, except for violent or coercive expression which causes actual harm, or that which constitutes fraud, perjury, blackmail, espionage, or treason (442, Tedford & Herbeck).
Both Emerson and Baker protect as much speech as they can, minus that which may incite actual harm. As I consider cases like Bragg v. LSU or Virginia v. Black, I morally disagreed with the xenophobic words and actions taken, I was offended, yet I did not feel because my personal feelings were hurt that the individual should be punished. With this in mind, I am a proponent of John Stuart Mill’s harm theory. The harm principle affirms that any doctrine should be allowed no matter how immoral it may be, placing only one principle of limitation upon one’s expression, that which results in an action that directly invades the rights of a person.
In the landmark case Virginia v. Black, the defendant was arrested for burning a cross “in a public place.” The Supreme Court was presented with defining whether or not burning a cross should automatically be considered a racist threat. The Court concluded that only cross-burning that constituted a “true threat” of actual bodily harm could be prohibited as a crime (181, Tedford & Herbeck). In my opinion true threat creates a marker when words become action(s), similarly to Emerson’s expression-action theory – your speech will always be protected, it is when you act, especially out of passion, hate, and raw emotion that you are no longer protected under the First Amendment.
Another landmark case that represents my beliefs in the harm principle is Brandenburg v. Ohio. Clarence Brandenburg was a leader in an Ohio chapter of the Ku Klux Klan. Brandenburg was recorded threatening violent acts against the president, Congress and the Supreme Court. The Supreme Court overruled the district court’s sentence affirming there must be a differentiation between the advocacy of ideas and the advocacy of illegal actions. Again, Emerson and Baker provided fundamental principles within this particular case. The court determined the government was required to prove that the danger presented by a speaker was in fact real, not exaggerated or invented. Brandenburg v. Ohio went beyond the previous standard of measure of clear and present danger, to create an incitement standard, in which provocation of illegal action is both, likely to occur and will transpire immediately (67, Tedford & Herbeck).
Thus, my philosophical grounding is rooted in the promotion of self-fulfillment, as identified by Emerson and Baker. I believe in the harm theory, established by John Stuart Mill, exemplified in Brandenburg v. Ohio and Virginia v. Black. I cannot say with complete certainty that I am an absolute protectionist of speech, consequently I adhere to the incitement standard and would like to apply a strict scrutiny to most cases, in which the government must prove it has a compelling reason to regulate or punish the speech.
It has been relatively easy for me to protect the speech presented in class, even that which may propagate hate, and racism. The only time that I was really challenged to verbalize my beliefs was in my final post concerning child pornography. It was difficult for me to describe my stance, as it was one of the first times I was legitimately wavering between the offense theory and the harm theory. The offense theory, according to Joel Feinberg, acts as a guide to public censure. The extent, duration and social value of the speech, the ease at which the speech itself can be avoided, the intensity of the offence, and the number of people insulted are all examined in relation to the offense theory. I struggle with accepting the offense theory for a number of reasons. The first is that to punish someone because they seriously offended an individual, or even a handful of people has no consistency. Depending on the time, place and manner with which one speaks, could impact the intensity, number and duration of offense. I do not believe that a national offense theory should be applied, when simply depending on the region will affect whether or not a person is punishable.
I am also challenged to accept the feature within the offense theory that relates to the number of people offended. As an individual that has based my writings and beliefs off of the rights of individuals, as witnessed in my very first response posts it seems unconventional to punish someone, or even have the means to punish someone, simply because they offended another. What may be distasteful to one may be just fine to another. For example, Jefferson Bragg, an 18-year-old freshman at Louisiana State University made a number of racist comments on the school campus. He may have offended many students, faculty and staff during his derogatory discourse. Yet, had he been in surrounded by a group of white supremacists’, his comments would be akin to his audience – How does the court deem punishment appropriate then?
In recognizing that I find little value in the offense theory, makes me contemplate what it was about the issues of child pornography that made me falter in my opinions. I was not personally offended when watching The Tin Cup or The Lost Soldier. I thought Sally Mann’s photographs were raw and artistic, not pornographic – yet, the thought of someone pausing The Tin Cup or cropping one of Sally Mann’s photographs and zooming in on a particular area of a naked child did make me uncomfortable. While reading about child pornography I felt conflicted and tense thinking about the consent of a child. At first I said The Tin Cup should not be punished in part because the young actor was consensually performing. Yet, what does it mean if a child consents – Is a child capable of making rationale and responsible decisions, like whether or not to be photographed or filmed naked? The other side of the token has to be parental consent (if in the United States). However, a number of ulterior motives can arise from parent/guardians placing their child(ren) in the limelight. These thoughts were the basis of why I would want to add a SLAPs clause to protect certain images of children.
In my final posting I did not add child consent clause, as I assumed with any professional images (mainly film) there would already have to be consent not only from the child, but from the parent/guardian as well. Apparently this is not necessarily true. Also if I add a SLAPs clause, I am advocating for offense theory analysis. It seems obvious now that I could not simply combine the offense theory and harm theory when looking into protecting/punishing child pornography, but isn’t that what we always want to do – create some protection or penalty that works well for us?
Rereading my post on child pornography I would still like to base my changes of definition for child pornography in the harm theory, yet I would ideally like to create some clause for emotional harm, not just physical. Therefore I would take out my previous implementation of the SLAPs clause, include a child consent clause, a true threat article and look at the various options, if any, to add an injury of emotion and mentality section. If these could be implemented, Sally Mann’s photos could still be shown and considered art, sexting would be protected, as well as films like The Lost Soldier and The Tin Cup.
There it is: I am a harm theory, protectionist, looking out for the opportunity of self fulfillment in relation to the First Amendment. I have been offended multiple times within Communications Rights & Law, yet I have never desired to punish any one person or group for deplorable words of discrimination, or vulgarity, rather I have become interested in finding ways in which to engage those who think differently than I in a constructive and educational manner. I am curious to find new avenues of expression and examine more closely how we use laws to offer freedom as well as place limits on the people of America.

According to Tedford and Herbeck, in "Freedom of Speech in the United States," there have been many recent developments in relation to laws concerning child pornography, none of which have clearly defined the wide variety of concerns that build up, including punishment as well as protection of sexual images of youth under the age of 16. Punishable images can include a mother taking photos of her children while they run naked through the sprinklers, or a teen “sexting” their boyfriend/girlfriend a provocative picture of them self. Taking the observations and remarks of Tedford and Herbeck, in addition to this week’s online readings and viewings, I believe the current definition of child pornography should be adapted, mainly by adding a SLAPs clause. The current definition and application of the child pornography laws are not fitting for contemporary society. One example of the inadequacies surrounding issues of child pornography is within the foreign film The Tin Drum won the Palme d’Or and the 1979 Academy Award for Best Foreign Language Film. The film is known for its weighty insights into art, war, and the terror of the Nazi movement. The Tin Drum parallels Oscar’s music against World War II. The implied message is that art, (goodness) has the ability to overcome war (evil.) Another intentional use of symbolism is highlighted in Oscar’s powerful scream, a symbol of Kristallnacht, the night of broken glass which represents the exposed violence of the Nazi party. The film was created with a powerful antiwar message exhibiting a number or influential themes along the way.
Baker uses a number of specific situations to illustrate how the liberty theory would work when applied in reality. His first example concerns the use of sexual materials that some would describe as obscene. Baker maintains the liberty theory “means that the First Amendment should protect the right of individuals to make their own choices about creating or receiving sexual materials. As for regulations of time, place, and manner, he believes that society is much too restrictive” (Tedford & herbeck, 442). Baker dismisses all controls over speech unless is it to restrict conduct of violence, coercive activity, or the violation of the rights of others (442). Therefore, if the youth consents to creating material with scenes or images of sexual substance, it is within their First Amendment right to do so.
Generally, pornography can only be banned if it is proven obscene under three a three prong analysis according to New York v. Ferber upheld the constitutionality of anyone knowingly producing, promoting, directing, exhibiting, or selling any material showing a “sexual performance” by a child under the age of 16. The case defined sexual performance as any action that included “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” Ferber established there were no First Amendment protections for child pornography.
I would like to argue that the definition of child pornography be reexamined in relation to The Tin Drum may be shocking and somewhat provocative to a large number of individuals, but just like in Cohen v. California even shocking language is protected under the First Amendment for its significance to the individual expression of emotion and thought. I understand that with any sexual image of an adolescent, whether done with the intent of creating art or not, can be manipulated for negative and unhealthy habits. Yet the body, whether a child’s or an adult’s, is a sacred entity and should be allowed to be exposed in a public sphere especially when being portrayed through fine art. Therefore, I believe with a foundation in Baker’s liberty theory and The Tin Drum would be protected, not only as a film that represents fundamental political examination, but also offers a literary value for its deeply rooted symbolism.

1984, the landmark case of New York Times v. Sullivan determined in cases concerning legal actions pertaining to libel taken by public officials, would not be accepted unless the plaintiff accepted the burden of proof – to demonstrate the insult was conveyed with “actual malice” (89, Tedford & Herbeck). Actual malice is proven by portraying the message was known to be false or the speaker “recklessly disregarded his or her obligation to discover and publish the truth” (89, Tedford & Herbeck). There are a number of issues to consider when resolving whether or not one committed negligence or actual malice. One such issue concerns the timing of the message. Was the message published on a deadline, or did the author have ample time to carefully research the story before publication. Those who do have time to commit to investigation carry a heavier burden of accuracy than do those who must publish in a short time (newspaper journalist, wire services etc.) The communicator must also be examined when determining actual malice. Is the communicator a public figure, or a public official, or professional? There is more protection for those with credentials than there is for less knowledgeable narrators.
In 1974 in the case of Gertz v. Welch the Courts distinguished between public and private persons. It was stated by the Court that private individuals are “more vulnerable to injury, and the state interest in protecting them is correspondingly greater… [and that] an individual who decides to seek governmental office must accept certain necessary consequences of that involvement…he runs the risk of closer public scrutiny” (96, Tedford & Herbeck).
In 2009, Canada made efforts to broaden their scope of freedom of speech through the “responsible communication” defense. Decided in Grant v. Torstar, free expression should have more protection when dealing with matters of public interest. To win on the defense one must prove the matter was based in the concern of the public. Second, the defendant was required to prove the publication was “responsible” – the author was meticulous in their research and verifications of the charge(s). The judge then decides upon the message’s public interest status. If public interest is shown, the jury must decipher if there is adequate evidence for a responsible communication defense. According to the Canadian Supreme Court, there are eight factors when determining whether the defamatory statement was made responsibly including: the seriousness of the allegation, the public importance of the matter, the urgency of the matter and the status and reliability of the source.
In examining the differences between Canada and America’s standards of libel protection the major distinctions fall with the burden of proof and the importance of the speaker. The US Court decided in New York Times v. Sullivan the plaintiff must prove fault. In Canada it is the speaker who must prove fault. There are no distinctions made in Canada between who the speaker is or who they are talking about that would alter the burden of proof. However in America, following Gertz v. Welch, the Court ruled public persons need more protection from defamation and therefore do not have to meet the strict standard of actual-malice. Yet, if the plaintiff is a public official, an all-purpose public figure or a limited public figure proving the actual-malice standard stands. Within a libel case in the US courts will lead directly into placing fault (establishing the title of the plaintiff). Canadian Courts will first define a libel case allowing the judge to determine whether the defamatory statement in question concerns the public interest or not. If the judge supports the case as an interest of the public a jury will then be responsible of interpreting the success of responsible communications defense. Over all, there is more protection granted within the United States for libelous assertions, especially made by private individuals.
I believe there are two prevalent philosophical theories that help justify the US Court’s outlook on freedom of expression in relation to libel. The first theory is best exemplified by John Milton. As stated by Tedford and Herbeck, “the philosophical reason for free speech is centered on the ancient struggle for freedom and the search for truth” (432, Tedford & Herbeck). Milton argued that instead of having the authorities impose means of suppression, society should be allowed to have “free and open clash of ideas in the belief that truth would win out” (432, Tedford & Herbeck). It is this central belief that seems most prevalent in America’s desire to make distinctions within plaintiffs. The recognition that private individuals are necessarily more vulnerable to defamation, and are therefore entitled to more means of protection demonstrates America’s belief that there is “likely some truth in all opinions” whether you are a public official or not (432, Tedford & Herbeck).
Another important philosophical model that grounds the United States’ outlook on libel is revealed in C. Edwin Baker’s liberty theory. Baker, similarly to John Milton, believes in the marketplace approach to free speech. “There is no such thing as objective, discoverable “truth,” that people are not always rationale, and that different people inevitably perceive the “truth” in different ways” (441, Tedford & Herbeck). Thus, to make a statement that is insulting to another may in fact be deemed truth by the speaker, but perceived as false to the slandered individual. As illustrated in the analysis and response posts from the first week of class, Americans place a significant value on the rights of the individual. Baker’s liberty theory depicts once again the worth of the individual – there may not be a universal “truth” however, there is a personal “truth.”
Libel laws have, especially outside of the US come into tension with an individual’s freedom of speech, directing the way toward censorship and oppression through silence. Fear of authors and publishers who have no means of protection is also present when examining freedom of speech with current libel laws. In an opinion article written by Olivia Judson in the New York Times, the British libel laws come under strict scrutiny of the fear they instill within published authors. Judson’s main example, Simon Singh, is being sued for libel by the British Chiropractic Association after he published an article in a newspaper arguing there was no justifiable evidence to prove the claims the BCA has made about the benefits of visiting a chiropractor. An educated scientist and published author, Singh is a credible source, yet there are a number of laws within Europe that permit restriction on freedom of speech as a means of protecting one’s reputation.
Although the intention of protecting one’s reputation is ideal, the Universal Declaration of Human Rights states in Article 19, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Yet, if one is afraid of an expensive lawsuit or, even worse, afraid of their life or socio-economic standing as a private individual – many will be quieted, whether or not they have a defensible argument.
It seems that based in a belief of individual rights, and that which promotes individual self-fulfillment, I believe I would rather fight in court under rules of “actual malice” than “responsible communication” in a case of libel. I believe looking at the basic philosophies of Baker and Milton, as well as examining the censorship that can exist in countries without basic individual protection against libel claims validate America’s current outlook on libel as evidenced in New York Times v. Sullivan and Gertz v. Welch.

Ali al-Timini has been accused of imploring a group of young Muslim men to wage war against the United States, suggesting the young men to take up arms in defiance of the US government. According to FOXNews, five days after the September 11 attacks, al-Timimi secretly spoke with a small group of Muslim followers. Al-Timimi claimed the attacks were a foreshadowing battle between Muslims and non-believers, indicating Judgment Day. Ali-al Timimi declared, according to the government, as Muslims, the group of men was mandated to defend the Taliban from the US.[1]

Four of the men traveled to Pakistan and trained with a radical group known as Lashkar-e-Taiba. Although none of Ali al-Timimi’s followers joined the Taliban, his declarations indicate political sedition and led to his sentence of life in prison without parole. Despite being a US citizen, Ali al-Timimi fits the historical image of one whose speech may be limited. According to Thomas Tedford and Dale Herbeck, authors of Freedom of Speech in the United States, the repression of free speech historically fell upon three groups of people: immigrants, women, and blacks. A United States Citizen of color, the son of Iraqi immigants, who spoke against the US Government immediately after the terrorist attack on September 11, Ali al-Timimi’s seditious remarks were a formulaic guilty case.

Hopefully by exploring the rationales for an individual’s freedom of speech will allow for a more impartial examination of Ali al-Timimi’s case. Within their text, Tedford and Herbeck, depict the three causes behind freedom of speech as: the philosophical reason, the political reason and the individual reason. The most important positions, specifically within al-Timimi’s case are the political and the individual reasons. The political theory behind free speech implies there is opportunity for “free and open discussion of political issues…promoting participation in the political process by the citizens of the nation, and supporting the oversight function of a free press” (433). The individual reason is based “on a belief in the dignity of the individual and the right of each person to self-fulfillment” through free expression (434).

From these most basic values, Ali al-Timimi is fully engaging in his rights of speech. His criticisms of the US government fall in his right to discuss political issues and involve himself in the political process. Al-Timimi’s comments, while offensive and emotionally painful for many to hear are his expression of self-realization and happiness.

In accordance with the individual reason for freedom of speech, Thomas Emerson, Professor at Yale, argues that freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses -”(438, Tedford & Herbeck). Emerson contends that the Supreme Court’s past applications of any theory to free-speech cases have been vague and inconsistent. To establish a comprehensive First-Amendment theory Emerson claims there must be a “distinction between “expression” and “action” (438, Tedford & Herbeck). Thus, where do we draw the line in regards to Ali al-Timimi? Are his seditious comments merely expression, which according to Emerson freely allowed and supported, or are his remarks considered “actions,” which can be limited?

Tedford and Herbeck offer an example of how Emerson would draw the line in relation to sedition. According to Emerson, seditious speech is protected as long as it is obvious advice and persuasion. However, seditious speech becomes “action” when advice becomes instruction and persuasion morphs to preparation. Thus, as indicated by Emerson seditious speech shall only be limited if it can be deemed as an action.

In the landmark case Brandenburg v. Ohio the decision to overturn the conviction of Clarence Brandenburg, a leader in the Ku Klux Klan, required that the government prove that within Brandenburg’s seditious speech that “the danger presented was real, not imaginary” (66, Tedford & Herbeck). It was decided that even menacing speech would be protected unless the state could prove that the speech was intended to incite or produce pressing lawless action. Brandenburg v. Ohio is the earliest case that resembles Ali al-Timimi’s case. The Court decided that Clarence Brandenburg’s threats against the president, Congress and the Supreme Court could be identified as advocacy of ideas rather than advocacy of illegal actions. Emerson’s Expression-Action theory was obviously acknowledged within the Brandenburg v. Ohio case. As indicated by Tedford and Herbeck, the intent and imminence of one’s speech must be carefully examined. As defined by the Court, one’s expression must have “a serious intent to incite illegal action…second, to be punishable, the “lawless action” being urged must be imminent” (67).

Some scholars, as explained within Freedom of Speech in the United States describe the Court verdict as a strict application of the clear- and-present danger doctrine, despite the fact the Court never used the language “clear and present danger.” The Court resolved there would be a standard of incitement. The 1969 case also established that the burden of proof fell upon the state government to prove they have a compelling reason to penalize and/or restrict speech.

Exploring the similarities between Bradenburg v. Ohio and Ali al-Timimi’s case, it seems as though the court would apply a strict scrutiny level. However, the time of Ali al-Timimi’s comments and trial to the attacks on September 11 may impact how the Supreme Court deems al-Timimi’s level of incitement, creating internal motivations among the Court to apply an intermediate level of scrutiny. [2]

Al-Timimi’s comments regarding the deserved violence of America from terrorist groups fall directly under Emerson’s definition of expression. However, the Investigative Project on Terrorism highlights information made public in the indictment about al-Timimi’s presentation of “historical examples from Islamic history justifying attacks on civilians,” further, al-Timimi advised to those listening to him to “obtain jihad training from Lashkar-e-Taiba because its belief system was good and it focused on combat.” According to Emerson, using such specifics as Lashkar-e-Taiba would play with the line of advice versus instruction. Although, depending on the way the statement is framed – Ali al-Timimi advised his friends to go to Lashkar-e-Taiba because it was one of the best training centers due to their focus on values and combat – makes his comments sound more like means of advice and persuasion. I believe there would not be ample evidence of immediate action within al-Timimi’s words for Emerson to indict him on all accounts.

I would argue for the Court’s examination of Al-Timimi’s case to be based in Emerson’s Expression-Action Theory and to apply a strict level of scrutiny when exploring the evidence against the American-Iraqi. From this standpoint I would argue that Ali al-Timimi would deserve a lighter punishment and more responsibility be placed on the “followers” who chose to train at Lashkar-e-Taiba.