Fourth Circuit vacates terrorism convictions over protected speech

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 The 4th Circuit vacated the defendant’s remaining terrorism-related convictions, concluding that the prosecution impermissibly punished protected speech in violation of the First Amendment. The court remanded the case to the U.S. District Court with instructions to enter judgments of acquittal.

The defendant, a lecturer at a Northern Virginia Islamic center, was convicted in 2005 on multiple charges based entirely on statements he made to a small group of young men shortly after the September 11, 2001 attacks. His remarks urged listeners to leave the United States, support Muslims overseas, and pursue jihad abroad, including by traveling to Pakistan and potentially training with militant groups. Although several listeners later traveled overseas, none engaged in combat, and the defendant did not accompany or materially assist them.

Over the ensuing two decades, the case followed a lengthy procedural course, including remands related to undisclosed surveillance and intervening Supreme Court decisions invalidating portions of federal firearms statutes. By 2024, several convictions had already been vacated, and the defendant was serving the remainder of his sentence under home confinement. He appealed the remaining counts on First Amendment and sufficiency-of-the-evidence grounds.

The 4th Circuit resolved the appeal solely on First Amendment grounds, emphasizing its obligation to independently review the record when expressive freedoms are at stake. Applying Brandenburg v. Ohio, the court held the defendant’s speech did not constitute incitement of imminent lawless action because it lacked imminence, specificity, and any concrete plan or target. The court further rejected the government’s theories of solicitation and aiding and abetting, finding no intent to facilitate a specific unlawful act and no participation beyond ideological encouragement.

Distinguishing cases involving concrete instructions or coordinated criminal conduct, the court concluded the defendant was punished for ideas, not actions, and that such advocacy remains constitutionally protected.

The 31 page opinion is United States v. Al-Timimi, Lawyers Weekly No. 001-015-26.