The MirYam Institute

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National Day Of Hate should remind us of the limits of free speech

By Mark Goldfeder & GABRIEL GROISMAN

Law enforcement officials nationwide issued warnings to the Jewish community over the weekend after neo-Nazi groups designated Saturday a national “Day of Hate,” with organizers calling for their followers to “shock the masses.”

Sadly, this was not surprising given recent events.

Our country has experienced an alarming increase in antisemitism recently, including attacks that are reminiscent of another time and place. Jewish Americans have faced physical assaults, verbal onslaughts, and profanity-laced and ominous flyers dropped off at the doorsteps of Jewish neighborhoods around the country. A viral video this past week, for example, showed a group of bigots in Orlando, Florida, waiting outside a Jewish center to instigate and harass the members. One of the instigators shoved a megaphone in the face of a rabbi and screamed things such as: “kike,” “Heil Hitler,” “Do you think you should be put in ovens,” and “You filthy Jew.”

This incident was not isolated, and the perpetrators are not only white supremacists. By all accounts, antisemitic discrimination and hate crimes are at an all-time high in our country and are being perpetrated by multiple groups with different agendas. The time has come for a collective response.

Many might be concerned that cracking down on hateful conduct could violate Americans’ right to free speech. It is critical, however, for all elected and law enforcement officials, as well as members of the public, to better understand the outer bounds of freedom of speech under the law. The bottom line is that the offended party is not without redress in many of these cases.

To be sure, freedom of speech , even offensive and hateful speech, should be protected. But there are limits to what constitutes speech, and there are rules for when it crosses over into actionable conduct. A number of the individuals involved in organizing these antisemitic activities, for example, are convicted felons with histories of bigoted violence, and in light of their groups’ increasing hostilities and the very real threat they continue to pose, authorities must be vigilant in safeguarding potential targets.

The First Amendment does not protect any unlawful conduct, which includes trespassing, vandalism, harassment, assault, and the destruction of property. The First Amendment also does not protect someone who is making true threats, which the Supreme Court in Virginia v. Black (2003) defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Nor does it protect intimidation, which is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

There is no First Amendment protection for speech that involves incitement, which the court in Brandenburg v. Ohio (1969) explained includes speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Nor does the First Amendment protect speech that aims not to inform or persuade, but to disrupt lawful endeavors — activities such as participating in a private synagogue’s religious service. Obscenity is not protected under the First Amendment either, and violations of federal obscenity laws, which can include visual depictions, spoken words, or written text (like some of the filth on the distributed flyers), are criminal offenses.

Finally, the protections that the First Amendment puts in place are meant to protect citizens from the government abridging their speech — not to limit the rights of other private individuals. Private businesses and landowners can restrict certain speech, conduct, and demonstrations, in most cases, without triggering any constitutional issues.

It is important to be clear on these rules because the inflammatory, discriminatory antisemitic rhetoric that hate groups spread often leads directly to antisemitic violence. For example, just two weeks ago, one follower who had shared this particular network’s antisemitic propaganda was arrested on charges of shooting two Jewish men as they were leaving synagogues in Los Angeles.

The danger of incitement is real, and authorities must act quickly and decisively to immediately curb any behavior that crosses from free speech into unlawful conduct. Failing to do so will have disastrous results, not only for the Jewish community, but also for all Americans. As the late Chief Rabbi Jonathan Sacks once explained, “Antisemitism is the world’s most reliable early warning sign of a major threat to freedom. ... It matters to all of us. Which is why we must fight it together.”

Our leaders must make use of all the tools they have at their disposal, and this means understanding that the First Amendment is not a free pass to threaten, harass, intimidate, or otherwise violate the rights of others.


Rabbi Dr. Mark Goldfeder, Esq. has served as the founding Editor of the Cambridge University Press Series on Law and Judaism, a Trustee of the Center for Israel Education, and as an adviser to the Permanent Mission of Israel to the United Nations. Read full bio here.