The Case of Ali Al-Timimi: His Violation of Free Speech

In 1969, The U.S. Supreme Court proclaimed in the case of Brandenburg vs. Ohio that the First Amendment would forbid the government from punishing inflammatory speech unless it is directly inciting imminent lawless action.
The First Amendment has been the cause of many historic court cases and in 2001, the words of one Islamic man would come under major scrutiny by the courts. Ali al-Tamimi was convicted for inciting terrorism against the United States. The words he used to advocate to 11 member of the Virginia Jihad Network is said to be the cause of his indictment.
The question that arises is, were his words a expression of his freedom of speech as an American citizen or did they violate the ruling in 1969, known as the Brandenburg case, that it is illegal to incite any form of imminent violence against the government. Al-Timimi told the 11 members of the Virginia Jihad Network that they must travel to Afghanistan to a training facility where they would be able to receive proper training to fight against anti-Jihad troops. Some of these anti-Jihad troops would be American, who are representing the United States government.
These words were said in 2001, 5 days after the September 11 attacks took place. In my opionion, Brandenburg applies in time of war or national emergency. September 11 can be seen as national emergency and Brandenburg calls for the punishment of speech that incites or directs violent overthrow of the government or interference. I, as a Supreme Court judge, would rule that Brandenburg would be directly applied to the speech that Al-Timimi expressed. The attacks of September 11th initiated a national emergency and for someone to incite others to act against the government in a case of national emergency, they should be punished.
Also, under the Smith Act of 1940, it states that it is a criminal offense if anyone “willfully or knowingly advocate, abet, advise or teach the duty, necessity, or propriety of overthrowing the Government of the United States.” However, Brandenburg reinstated that the Smith Act must be changed to include the incitement, immediate, and imminent illegal violence against the Government of the United States. Under this act, Al-Timimi would be in direct violation of this act and should be convicted of a crime. His speech should be punished and the conviction would be ruled constitutional based on Brandenburg and also the Smith Act.
A supporter of the Smith Act, Zechariah Chafee, Jr., described the act as it was enacted to punish those who advocated the overthrowing of the government and would also punish those whom conspired with any others who desired to overthrow the government. Chafee supported self-government through political speech. So, where does the burden of proof fall?
The burden of proof falls under intermediate judicial scrutiny. This is to say that the government must have a substantial reason and basis to regulate and punish a speaker. In this case, the court has the reported speech said by Al-Timimi, which in hand gives the court a substantial reason to punish. The word “substantial” needs to be thought of as probable danger and not immediate. If the court were to take a strict scrutiny level on this case, I believe Al-Timimi would not be punished based on the fact that he never said that he, himself, would be traveling to Afghanistan and training to overthrow the U.S. government. With the scrutiny level at intermediate, I think the court can protect the government and U.S. citizens from offensive and incited speech.
As a Supreme Court judge, I am not punishing Al-Timimi for violating the Smith Act. I am adopting Brandenburg and protecting his free speech. I believe the other justices would uphold my ruling due to the fact that we have a substantial reason to convict him of this crime.