Elisa Kantor · April 2008
76 GEO. WASH. L. REV. 752 (2008)
Under the government’s preemptive approach, federal prosecutors have taken a closer look at the role of the Muslim cleric in terrorist conspiracies. Officials believe that fundamentalist imams may play a central role in the creation of terrorist schemes by providing guidance and instruction to groups of Muslims who are likely to commit terrorist acts. The government’s new concentration on religious leaders, however, raises questions as to whether this preventative strategy, which can involve prosecuting Muslim preachers for their speech to followers, will cause important free speech principles to be violated. Under First Amendment jurisprudence, when can a Muslim leader’s words truly be seen as a serious terrorist threat? How will America’s much-coveted free speech rights be affected if Muslim preachers can be prosecuted for this type of speech?
As one author writes, “[t]errorism presents a special challenge to a democratic society: how to prevent and punish ideologically motivated iolence without infringing on political freedoms and civil liberties.” This Note maintains that to rise to this challenge, our justice system must adhere vigorously to the imminence requirement established by the Supreme Court in Brandenburg v. Ohio. A strict defense of Brandenburg’s temporal element will protect the American public from speech that escalates the threat of domestic terrorist activity while guarding speech that deserves to compete in our country’s “marketplace of ideas.” Furthermore, although some commentators have argued that, because America has changed drastically since September 11, heightened restrictions on free speech are justified, this Note argues that it is precisely in such urgent moments that the protection of free speech is most essential. Despite the government’s new focus, our judicial system must be careful to allow convictions of Islamic preachers only when their expression causes an imminent threat of terrorist activity and must not allow basic free speech rights to be compromised. Otherwise, as Justice Jackson foretold, we may truly become the greatest threat to our own civil liberties.
Part I of this Note outlines a brief history of the jurisprudence leading up to Brandenburg. Part I also analyzes Brandenburg’s imminence requirement and explains the importance of imminence. Part II examines the case of United States v. Al-Timimi, in which a Muslim preacher was convicted of soliciting others to wage war against the United States. Part II also discusses a predecessor case, United States v. Rahman, which laid the groundwork for Al-Timimi before September 11. Part II argues that Al-Timimi should not have been convicted because Brandenburg’s imminence requirement was not satisfied and warns that the case indicates a relaxation of the requirement in terrorism prosecutions of Muslim clerics. Part III describes the consequences of failing to adhere to the imminence requirement during America’s current “war on terror.” Part IV discusses alternative arguments to the view that courts must adhere to the imminence requirement. Finally, this Note concludes that strict adherence to the imminence requirement of Brandenburg is essential to the preservation of free speech liberties during wartime and suggests a future approach towards First Amendment jurisprudence.
