Brandenburg in a time of terror.

• Author: Healy, Thomas

For four decades, the Supreme Court's decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable?

To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework.

INTRODUCTION I. CRIMINAL ADVOCACY AND THE FIRST AMENDMENT; BRANDENBURG AND BEYOND A. The Brandenburg Decision B. Brandenburg in the Lower Courts C. The al-Timimi Case II. WHY SHOULD CRIMINAL ADVOCACY BE PROTECTED? III. How MUCH PROTECTION SHOULD CRIMINAL ADVOCACY RECEIVE? A. Criminal Advocacy and Situation-Altering Utterances B. Speaker Intent C. Dangerousness D. Brandenburg As Strict Scrutiny IV. FILLING IN THE BRANDENBURG FRAMEWORK A. What Does "Likely" Mean? B. What Does "Imminent" Mean? C. Is the Gravity of the Harm Relevant? D. Public v. Private Speech and Ideological v. Nonideological Speech E. Brandenburg in War and Peace F. Is Advocacy of Terrorism Different? CONCLUSION INTRODUCTION

One of the oldest and most important questions in First Amendment law is whether the government can prohibit speech that encourages others to break the law. This question was at the heart of the Supreme Court's first major speech cases in the early twentieth century and was the focus of significant debate until the 1969 case of Brandenburg v. Ohio. (1) In that decision, the Court ruled that "advocacy of the use of force or of law violation" cannot be punished unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (2) More protective of speech than any prior test, (3) the Brandenburg test has provided the governing standard in this area for four decades and is often hailed as the final word on the government's power to restrict criminal advocacy. (4) As the distinguished scholar Harry Kalven once said, the Court's decision in Brandenburg was "the perfect ending to a long story." (5)

But the story may not be over after all. The fallout from 9/11 and the "war on terror" are placing new pressures on the First Amendment that even Brandenburg may not be able to bear. Although the government generally has not reacted to 9/11 with the kind of repressive speech laws that characterized earlier periods of crisis, (6) both federal and state officials have engaged in quiet yet disturbing efforts to suppress the speech of political dissenters. (7) In one case, a nurse with the U.S. Department of Veterans Affairs was investigated after she published a letter that accused the Bush administration of criminal negligence and urged readers to "'act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit.'" (8) Veterans Affairs officials seized the nurse's hard drive and informed her that she was suspected of sedition. (9) They found no incriminating evidence, however, and dropped their investigation under pressure from the American Civil Liberties Union and the woman's Senator. (10)

In another case, federal prosecutors targeted a Muslim graduate student who ran a website for an Islamic charity that was suspected of links to terrorist-financing networks. (11) For a year, investigators monitored the student's phone calls and emails and followed him around campus. They eventually charged him with three counts of providing material support to terrorists and eleven immigration violations. (12) At trial, they argued that he had used the website to recruit terrorists, solicit donations, and spread inflammatory rhetoric. But the jury disagreed and acquitted him of the material support charges after just a few hours of discussion. (13) It also acquitted him of three of the eleven immigration charges and deadlocked on the rest. (14)

Perhaps the most troubling case, however, is the prosecution of Ali al-Timimi, an Islamic scholar who was convicted of counseling others to violate federal gun laws, aid the Taliban, and levy war against the United States and its allies. (15) According to testimony at his trial, al-Timimi attended a dinner five days after 9/11 with a small group of Muslim men in Virginia to discuss the attacks and the possible backlash against Muslims. (16) In response to questions, al-Timimi told the men they should leave the United States, join the mujahideen, and fight the enemies of Islam. (17) He also read the men a fatwa issued by a Saudi scholar who declared that all Muslims were obligated to defend Afghanistan in the event of a U.S. invasion. (18) Over the next few days, four of the men flew to Pakistan to train at a camp operated by Lashkar-e-Taiba, a group dedicated to driving India out of Kashmir. (19) After a few weeks of weapons training, however, they learned that Pakistan had closed its border with Afghanistan and returned to the United States. (20)

Under a literal reading of Brandenburg, al-Timimi's speech seems clearly protected. Even if one concedes that his words were directed to inciting or producing lawless conduct, there was no evidence they were directed to inciting imminent action. A1-Timimi did not say when the men should join the mujahideen, and at the time of the dinner the United States had not yet begun hostilities in Afghanistan. (21) There was also little evidence that his words were likely to lead to imminent lawless conduct. (22) Although several of the men did travel to Pakistan, Lashkar-e-Taiba had not yet been declared a terrorist group, and it was legal for Americans to visit the camp. (23) Moreover, the men did not leave for Pakistan until several days after the dinner and did not arrive at the camp until several weeks later. And in a case decided shortly after Brandenburg, the Court reversed a conviction where the speaker's words could have led to illegal conduct later the same day, suggesting that "imminent" means immediate, not several days or weeks later. (24) Yet al-Timimi's conviction was upheld by a federal judge, and he was sentenced to life in prison. (25)

Al-Timimi has appealed his case to the Fourth Circuit, and it is possible that his conviction will be reversed. (26) But as the first successful prosecution of terrorist-related speech since 9/11, his case raises important questions about the adequacy of Brandenburg to protect speech during a time of national crisis and widespread fear. (27) Although Brandenburg was decided during the Vietnam War, the speech in that case was not related to the war and did not implicate concerns about national security. The decades since Brandenburg have also provided little opportunity to test the strength of its protections. But as the al-Timimi case shows, the threat of terrorism poses a significant challenge to the Brandenburg framework. Not since the Red Scare of the 1950s has there been such deep-seated suspicion and anxiety in the country, much of it directed at those with different religious and political beliefs. Whether Brandenburg can--or even should--survive in this climate is an important question that needs to be addressed.

The al-Timimi case also exposes gaps in the Brandenburg framework that have been largely glossed over by courts and scholars. (28) For instance, Brandenburg does not tell us how likely it must be that speech will lead to unlawful conduct or how imminent that conduct must be. Nor does it tell us whether the likelihood or imminence requirements vary depending upon the gravity of the harm that is advocated. Brandenburg also does not make clear whether it applies to private speech as well as public speech, whether it applies during war as well as peace, or whether it overrules the Cold War case of Dennis v. United States, (29) which upheld the conviction of communists for conspiring to advocate the overthrow of the government. (30) Finally, Brandenburg does not tell us whether there is anything about the current terrorist threat that would make its protections inapplicable.

The goal of this Article, then, is twofold. First, it aims to determine whether Brandenburg is adequate to protect speech during a time of terror. Second, it seeks to provide answers to the many questions left unresolved by Brandenburg. The two aims are closely related because Brandenburg is not likely to provide...