It is perhaps the first legal rule that children learn: "Sticks and stones can break my bones, but words can never hurt me." It is not just a catchy phrase, but a fair reduction of a legal principle: Words alone are generally not actionable as forms of assault or crimes.
Last week, a jury in Alexandria, Va., offered a new addendum to this childhood axiom. Muslim scholar Ali al-Timimi was convicted of, among other crimes, incitement encouraging followers to train with terrorist organizations and to engage in violent jihad. He now faces life in prison in a case that even the U.S. attorney called "unusual" based on speech. His appeal may now help define when violent speech crosses the line from free expression into criminal advocacy.
Violent speech is generally protected by the Constitution. However, the line between controversial and criminal speech has proved evasive for courts. Speech is not protected if it advocates "imminent" violent or unlawful conduct. Speech can be calculated to incite people, but not if it incites people in the wrong environment. Thus, screaming "fire" in a crowded theater is actionable, but not necessarily doing so in a park.
Such contradictions reflect a long history of how we deal with violent or inciteful speech. Under the Sedition Act of 1798, Congress made it a crime to "excite" people against the government or otherwise bring the government into "contempt or disrepute." This law was used by President John Adams against critics, despite its flagrant violation of the First Amendment and condemnations by framers such as Thomas Jefferson and James Madison.
AN ALLY IN THE KKK
Al-Timimi, the Islamic extremist, was relying on an unlikely ally in free speech: an Ohio Ku Klux Klan grand dragon. In Brandenburg v. Ohio, a KKK leader was prosecuted for giving a speech at a farm outside of Cincinnati in which he warned that "if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might be some revengeance taken."
Clarence Brandenburg was convicted under a state law of criminal statements that proclaimed the "necessity or propriety" of acts considered violent or unlawful.
Later, in reversing the conviction, the U.S. Supreme Court held that the government could not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions."
The decision reflected the court's understanding that political passion often drifts toward violent expressions. Thus, conservative columnist Ann Coulter is allowed to suggest "we should invade (Muslim) countries, kill their leaders and convert them to Christianity." More recently, Oklahoma Sen. Tom Coburn's chief of staff is allowed to proclaim, "I don't want to impeach judges. I want to impale them!"
The question of what constitutes advocacy of an "imminent lawless action" has remained a maddening ambiguity. This is precisely the ambiguity that al-Timimi stepped into during social gatherings in Virginia in the weeks after the attacks of Sept. 11, 2001.
Al-Timimi is the spiritual adviser to many Muslims across the country. He has worked with the government, including White House chief of staff Andrew Card, and he has been invited to speak on Islam to the U.S. military. He is the perfect conflicted individual for the conflicted area of violent speech.
On one hand, al-Timimi publicly denounced violence and called for tolerance in some speeches. However, privately, a darker image emerged. Five days after the 9/11 attacks, al-Timimi called for a "holy war" and "violent jihad." On Sept. 16, al-Timimi met in an apartment with a few young men and encouraged them to go abroad to join the jihad. Within days, some members were on their way to Karachi, Pakistan, to join Lashkar-e-Taiba a group later put on the U.S. list of terrorist organizations. Al-Timimi is quoted by former converts (who are now cooperating with the prosecutors) as referring to U.S. forces as "legitimate targets" if they attack Muslims in Afghanistan. (None actually fought, but a few did go abroad for training.)
INTENT OF AL-TIMIMI'S WORDS
The difficult question in the case is whether al-Timimi's statements to supporters not only advocated violent or unlawful conduct (which is protected), but encouraged imminent violent or unlawful acts. Notably, many of his comments have a future element to them. His reference to "legitimate targets" is premised on the possibility of a future U.S. intervention.
Conviction in these cases risks being overturned based on unpopular speech rather than a real imminent threat. Judge Leonie Brinkema allowed the jury to hear inflammatory statements made by al-Timimi on the morning of the Columbia shuttle disaster. Al-Timimi wrote in an e-mail to followers that "there is no doubt that Muslims were overjoyed because of the adversity that befell their greatest enemy" and called the disaster a "good omen." The relevance of such statements is questionable, but the potential prejudicial impact could not be more clear.
We have come a long way since John Adams chased down critics for sedition. We have learned that we have more to fear from the suppression of speech than from its expression.
We are now forced to address this question by a person who engenders little reason for sympathy. Yet, it is never about the defendants. It was not about the racist fantasies of Brandenburg. It certainly is not about the apocalyptic fantasies of al-Timimi. It is ultimately about us and who we are. With al-Timimi's conviction, we face that moment of self-definition again as his articles of speech become the test of our own articles of faith.