Supreme Court Desicion of Hypothetical Case
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The appellant, Salim abdul Aziz Rahman, the founder of the group called the Global Islamic Jihad, was convicted under the USA Patriot Act of 2003 for “furthering the aims of known terrorism organizations by advocating the violence of the United States government that is called for by those organizations.” He was tried and convicted by the Federal District Court, and has challenged the constitutionality of this Act on the grounds that it violates his First Amendment right of Freedom of Speech as protected by the United States Constitution.
The United States Patriot Act of 2003 makes it a crime to “further the aims of known terrorist organizations by advocating the violence against the United States government that is called for by those organizations.” This act was formulated and put into effect after the acts of terrorism in September of 2001.
The record shows that a man identified as the appellant, distributed to the inhabitants of his predominantly Middle-Eastern New York City neighborhood, pamphlets stating “the American government is controlled by Zionist agents and is using its arrogant power to murder believers around the world.” These pamphlets also contained the sentence “The penalty for murder is death.” These pamphlets were printed and distributed by his organization, Global Islamic Jihad.
At a rally of his organization in April of 2002, Mr. Rahman burned a flag (though protected by Texas v Johnson, 491 US 397, OBrien 626), and presented a speech where he called for “death to any country that supports Zionist aggression against true believers” as well as cataloging “American crimes against humanity.”
In a speech on the day of his arrest in this same Middle-Eastern neighborhood, the appellant catalogued “Americas crimes against humanity and the believers,” as well as declaring “We must not sit by idle. We must stand up with all of our strength with our brothers and sisters who struggle against the Zionists and against those who help them with money and weapons. The treacherous Jews and Crusaders must go down. Jihad knows no boundaries and no limitations on its means.”
Through legal FBI wiretaps, it was found that Mr. Rahman was in direct contact with representatives of the Muslim Brotherhood, a political group both in the United States and abroad. Previously an Egyptian terrorist group whom publicly renounced violence, this group now claims to advocate a “peaceful transition to a worldwide Islamic state.”
However, this group often conveys ideas by known terrorist organizations that it calls “brothers in the great cause.” These groups include but are not limited to Hamas, Hezbollah, and the Armed Islamic Group. Mr. Rahman encouraged these groups and “all of the efforts made at reversing the tide of Zionist-Crusader imperialism” as well as offered his groups support to “broadcast the message in the US so that many will hear and join the great struggle against American and Israeli crimes.”
Due to Mr. Rahmans claim that the USA Patriot Act of 2003 violates his freedom of speech, the first subject of discussion is to determine what, in our present times and current situation as a nation, is considered free speech. The first Amendment of the United States Constitution, as ratified on December 15, 1791, declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”
This courts purpose is not to decide whether or not speech is protected by the Constitution of the United States of America, but to what degree it is protected in the Nations current times. In order to determine this, we turn to the clear and present danger test as developed in Schenck v. United States, 249 US 47 (OBrien, 389), by Justice Oliver Wendell Holmes.
When applying the clear and present danger test, one must look at the present circumstances of both the nation and the world as a whole. Due to the acute acts of terrorism on September 11, 2001, and the current involvement in “The War Against Terror” currently taking place in the Middle East, certain expressions of thought are not to be considered suitable for the times. As determined in Aikens V. Wisconsin, 195 US 194 (OBrien, 389), “the character of every act depends upon the circumstances in which it is done”.
We must determine as a court whether or not the words used in this speech were said in such a circumstance and are of such a nature that they could possibly create a clear and present danger and bring about the substantive evils that congress has the right to prevent. If