Al Timimi: Set Him Free-mi (blogpost 2)

When the nation faces war or a national emergency or some other threat to its national security, the imminent and immediate incitement standard should apply. Brandenburg vs. Ohio should not apply during times of war or during times that national security is threatened. Immediately after terrorist attacks or national security threats, “bad tendency” should apply. Schenck vs. U.S. demonstrates how “bad tendency” should be applied. At all other times, when the nation is considered to be “at peace” and not threatened, Brandenburg vs. Ohio should apply. If we were considered to be at war, Brandenburg vs. Ohio would not apply. All speech and action should be protected up until immediate incitement.

Given the standard that has been set by the above, and the fact that he spoke before wartime, Al Timimi should be protected by the first amendment. His conviction is considered unconstitutional. However, because he is guilty of “bad tendency” Timimi should be fined or imprisoned for committing the act of treason. A life sentence of imprisonment is considered to be cruel and unusual punishment in the case. Since Timimi stayed in the United States and did not travel with his friends to Pakistan, I would say he did not incite any action.

My philosophical reasoning behind these decisions follows that of Post who believes that self government should be promoted through political speech and that there are certain contexts that allow for certain speech. Because Timimi was teaching to a small group of Muslim friends, his religious beliefs that he chose to share with friends should be protected. Because we were not at war when Timimi spoke these words, my precedent comes from Brandenburg vs. Ohio. Timimi is guilty of “advocating ideas” not “advocating illegal action.” This case goes beyond “clear and present danger” and has more to do with the issue of incitement. If Timimi had taken up arms and killed U.S. Soldiers himself, he would be guilty of advocating and carrying out illegal actions.

In this specific case, Al Timimi has the burden of proving his innocence to a court that is scared and biased by terrorist attacks. Like we discussed in class: would Timimi be convicted if the attacks on September 11^th had never happened? What if he said these things now instead of then? The fact that there isn’t consistency in these answers and decisions shows that Timimi deserves a second trail, a second review of the decisions we made for his life.

The government needed to have a strict scrutiny level to restrict this category of speech. If they are going to imprison this man for his life, there should be more than a rational or substantial reason to be involved. What Timimi did is no different from Brandenburg did in 1969. Both Brandenburg and Timimi have the right to express their ideas without encouraging or taking part in any illegal actions. The fact that Timimi was a Muslim man speaking just days after the September 11^th attacks does not mean he is deserving of a harsher punishment than Brandenburg was forty years ago.

If the president of the United States had declared a war on Al Qaeda or on any Middle Eastern Country, then Timimi would be speaking out against the United States during a time of war, which is considered treason or bad tendency. What he would be doing then would be comparable to what Schenck did in 1919. Furthermore, I would apply the harm principle to Timimi’s case. His words did not physically harm anyone. His words did not lead to personal action. Timimi spoke to an audience much like Marc Antony did many years ago.

If I were a supreme court justice reviewing Timimi’s case, considering a first amendment appeal of his case, I would uphold Brandenburg vs. Ohio, ONLY if we were considered to be in war at the time. If we were not officially declared to be in a war, I would overturn the application of Brandenburg vs. Ohio for prosecuting incitements against the government. Depending on the wartime or not, I would overturn Timimi’s case, granting him a lesser punishment for his words. Again, I would apply the harm principle. Since Timimi never harmed anyone by his words, I would grant him the FOE to say the things he did. Since I most agree with Post, a philosopher from Chapter 15 from our text, Timimi’s speech would be protected. The context in which he spoke is acceptable and should considered to be private speech. Given the facts of this case, I would overturn the Supreme Court’s decision to keep Al Timimi in prison for life.