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 it's 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, 'O'Brien 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 "America's 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 group's 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. Rahman's 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 court's 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 Nation's 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 (O'Brien, 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 Aiken's V. Wisconsin, 195 US 194 (O'Brien, 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 these expressions are found to produce an imminent evil, there will be no violation of Mr. Rahman's first amendment freedom of speech as stated in the constitution. The words Mr.
Rahman used in his speech directly described the United States as viewed by himself and his organization. The statement "We must not sit by idle. We must stand up with all of our strength with our brothers and sisters who struggle against Zionists and against those who help them with money and weapons. The treacherous Jews and Crusaders must go down. Jihad knows no boundaries," could potentially produce a downfall of the United States government. This speech by their nature, if acted upon by his followers, could produce an evil.
Due to our nations current war against these organizations, this type of speech is not acceptable. The courts must also consider who is the most susceptible and the most affected by these words. Because Mr. Rahman spoke to a crowd of his followers as well as sympathetic onlookers in his predominantly middle-eastern neighborhood, these listeners could be easily swayed to take action.
These words are, in the court's opinion, a call to arms by Mr. Rahman against the United States. The expression in question was found to, if acted upon, produce an evil. These words are therefore found to project an imminent danger upon the citizens, as well as the government, of the United States. Therefore, it is not only the duty, but also the right of the government to protect her country and the freedoms of her people. The USA Patriot Act of 2003 makes it a crime to further the aims of known terrorist organizations by advocating violence against the United States.
We have found that by Mr. Rahman's speaking of the words "We must not sit by idle. We must stand up with all of our strength with our brothers and sisters who struggle against Zionists and against those who help them with money and weapons. The treacherous Jews and Crusaders must go down. Jihad knows no boundaries," and by his contact and support of known terrorist organizations that promote this violence, he is in direct violation of this act." Such utterances, by their very nature, involve danger to the public peace and to the security of the state. They threaten breaches of the peace and ultimate revolution.
And the immediate danger is none the less real and substantial, because the effect of a given circumstance cannot be acutely foreseen. The State Cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." - Justice Edward Sanford; Git low v. The People Of New York, 268 US 652 This quote directly illustrates the court's opinion in this case. It is the direct duty of the United States government to stop the spark before it starts a flame.
Due to the circumstances in which this nation is under, there are certain limitations on the definition of freedom of speech. This court therefore affirms the lower courts decision by an eight to one vote.