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.