Free Speech

So a Fourth Circuit panel held today, vacating the defendant's convictions from 2005.

Eugene Volokh | 1.9.2026 5:01 PM

An excerpt from today's long opinion in U.S. v. Al-Timimi, by Fourth Circuit Judge James Wynn, joined by Judges Stephanie Thacker and Pamela Harris:

Ali Al-Timimi was convicted based entirely on words he spoke in the immediate aftermath of the September 11, 2001 attacks—words that were inflammatory, disturbing, and deeply offensive, but that urged no concrete criminal plan and did not provide operational assistance for the commission of any particular offense. For two decades, Al-Timimi has been imprisoned or confined to his home while his criminal case has made its way through appeals, remands, motions, and delays.

Because the Constitution forbids criminal punishment for protected advocacy—however odious the content of that advocacy—we conclude that Al-Timimi's speech remained protected under the First Amendment….

The court concluded that the speech (some details of which are quoted below) wasn't unprotected incitement:

Plenty of speech encouraging criminal activity is protected under the First Amendment. Abstract "advocacy of lawlessness" is protected speech. "[M]ere encouragement" of unlawful activity "is quintessential protected advocacy." The "teaching of the moral propriety or even moral necessity for a resort to force and violence" retains First Amendment protection.

But such speech loses First Amendment protection when it bears certain additional characteristics: Speech advocating lawlessness or the use of force is unprotected when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio (1969). In this context, the Supreme Court has distinguished between "mere abstract teaching" of the "moral propriety" or "necessity" of violence, on the one hand, and "preparing a group for violent action and steeling it to such action," on the other. The state may criminalize speech that is aimed at accomplishing the latter without running afoul of........

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