Conviction for Advocating Participation in Jihad Following 9/11 Violates First Amendment

US v. Al-Timimi: Al-Timimi helped found a mosque in Virginia and was “viewed as a respected elder and a person knowledgeable about Islam.” Prior to the 9/11 attacks, a group of men at the mosque began planning to wage jihad overseas. Al-Timimi was not part of the group and when asked if he approved “didn’t endorse or reject the idea.” Later, he did “chastise them for making their training efforts too obvious” and encouraged them to “be more discreet.” After 9/11, Al-Timimi met with others (including some of the would-be jihadists) and told them (among other things) that they must “leave the United States” and “join the mujahadeen,” that it was “obligatory on all Muslims to go and defend Afghanistan,” and that “it doesn’t matter if we fight the Indians or the Russians or the Americans, that this is all legitimate jihad.” He also encouraged men to “go to Pakistan” and join and train with a particular terrorist group.

In 2004, Al-Timimi was charged with ten counts related to inducing or soliciting others to (among other things) use firearms, levy war against the United States, and aid the Taliban. All the counts were based on speech Al-Timimi had made. He was convicted on all counts and sentenced to a total of 360 months in prison. Twice Al-Timimi appealed, only to have the case remanded for additional proceedings, one of which resulted in several counts being vacated on Johnson/Davis grounds. In 2020, Al-Timimi was released to home confinement due to the Covid-19 pandemic.

On the third go around, the Fourth Circuit vacated Al-Timimi’s remaining convictions, concluding that they violated the First Amendment. The primary argument was whether his speech constituted incitement to imminent lawless action or rose to the level of facilitation or solicitation of unlawful conduct. The Court concluded it was not, applying the Brandenberg standard, which requires that the “advocated-for lawless action must be happening quite soon.” What Al-Timimi urged was “neither sufficiently imminent nor sufficiently definite to lose First Amendment protection,” with the court noting that he “specified no time from in which these actions should be completed and no details as to how they should be carried out.” His “exhortations were vague and general.” Al-Timimi’s speech “was not participation but merely encouragement,” which was not sufficient to support aiding and abetting convictions. Nor did he encourage, “with the requite intent, a specific unlawful act.”