June 11, 2024
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June 11, 2024
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A Closer Look at the First Amendment

The widespread anti-Israel protests throughout the United States since October 7 have all too often degenerated into threats and incitement against Jews. As a result, a climate has been created where Jews around the country, and especially on college campuses, feel threatened and fearful. (For an eloquent and frightening description of these feelings, I urge everyone to Google the speech by Talia Dror, the daughter of Iranian immigrants and a student leader at Cornell.) Many will argue—and have argued—that no matter how offensive this “hate speech” is, hate speech is protected by the free-speech clause in the First Amendment to the U.S. Constitution. However, this argument is not quite accurate.

The First Amendment states that Congress and the states “shall make no law … abridging the freedom of speech.” While the words “no law” on their face would appear not to permit any exceptions to the guarantee of freedom of speech, the Supreme Court has recognized many exceptions to the First Amendment. These exceptions include, for example, laws against obscenity, and laws against libel and defamation. And of course, even non-lawyers are familiar with the statement by Supreme Court Justice Oliver Wendell Holmes, that the First Amendment does not allow someone to yell “Fire!” in a crowded theater.

For purposes of the anti-Israel and antisemitic protests, there are two other exceptions to the free-speech clause that are directly applicable. In the case of Brandenburg v. Ohio, the Supreme Court held that the government can punish inflammatory speech that is “directed to inciting or producing imminent lawless action and is likely to produce such action.” Similarly, in the June 2023 case of Counterman v. Colorado, the Court held that under certain circumstances the government can prosecute people who make threats.

Without getting into details, the government’s burden of proof in obtaining a criminal conviction based on words alone is very high. (There are of course criminal laws against assault and false imprisonment that do not implicate the first amendment at all.) However, both the federal government and the various states have passed laws that provide for criminal penalties of varying degrees in cases of threats and incitement.

Some of the potential penalties can be quite severe. For example, Patrick Dai, the Cornell student who threatened other students at Cornell, was arrested and charged with violating a federal law punishable by up to five years in prison. Statutes in New York and New Jersey provide for similar serious penalties, particularly when the incitement or threats target a person or group based on their race or religion.

Obviously, federal and state prosecutors are aware of all of these laws. However, it is important for members of the public who are concerned about this issue to be knowledgeable as well. In that way, we can pressure prosecutors to examine each instance of anti-Jewish threats and incitement carefully, to make sure that they do not simply take the easy way out by using the first amendment as an excuse for doing nothing, and to make sure that those who do cross the line are prosecuted to the fullest extent of the law.

Accordingly, I have researched the federal, New York and New Jersey laws that criminalize threats and incitement, and I have written to the governors of New York and New Jersey, and the U.S. attorney general, setting forth the specific statutes that are relevant to their jurisdictions, and urged them to take an aggressive stance in reviewing these cases. I urge as many people as possible to send similar letters. (Samples can be found by copying and pasting the links at the end of this letter.) The more of us who reach out, the more we will raise their understanding of just how important this is.

To reach Phil Murphy, governor of New Jersey, visit https://nj.gov/governor/contact/ . To reach Kathy Hochul, governor of New York, visit https://www.governor.ny.gov/content/governor-contact-form . To reach Merrick Garland, U.S. attorney general at the Department of Justice, visit https://www.justice.gov/doj/webform/your-message-department-justice .

May we speedily see victory by the IDF and the freeing of all the hostages, and may we be successful in stemming the rising tide of antisemitism.

Am Yisroel Chai.

Martin Stein





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