Ocean County—Sticky First Amendment issues and the application of New Jersey’s hate crimes laws surfaced last week when an unnamed NJ teen from Ocean County was not charged for disseminating hate speech and death threats on the Internet.
When is hate speech a crime? When is advocating the killing of Jews simply free speech? If you are the daughter of a New Jersey State Police sergeant, it’s free speech. That appears to be the opinion of the Ocean County Prosecutor’s office, according to spokesman Al Della Fave. Della Fave, a retired State Trooper, is the former official spokesman for the New Jersey State Police.
This underage child of a New Jerseyan who is sworn to protect and serve, used the Internet to post a picture of herself with a Hitler-style moustache and wearing what appears to be a US Army dress jacket adorned with a swastika. On the shoulder is a patch that looks like an armored division emblem. The picture is captioned “1944 Crematorium Crew.”
On her head is a State Police hat. Police officers have been disciplined for wearing their uniform or parts thereof for unapproved activities. But this pales in comparison to her tweets and Facebook postings. In one post, the New Jersey State Trooper’s daughter writes: “I really wanna drive around Lakewood and run over every Jew with my car.”
Della Fave told JLNJ, “There was never any danger being posed to the community. It didn’t rise to anything criminal.”
US Sen. Bob Menendez, a Bergen County resident, has called for an investigation by the US Department of Justice “…to make sure the postings by the teen do not pose a threat to public safety or homeland security.”
Menendez was made aware of the antisemitic postings during a meeting with representatives of the Agudath Israel.
Avi Schnall, the Agudah spokeman, agreed with the prosecutor and recommended the teen not be charged. He told the Asbury Park Press that, “We could comfort ourselves and say that these are just immature teenagers fooling around, but when Hitler becomes another costume that teenagers dress up in, and bombing a group of Jews becomes humorous, that tells us something is very wrong with our society.”
Menendez, who is an advocate of Israel and strongly believes in Holocaust Education as a way to stop hatred, told the group he disagrees.
“I don’t believe that those [tweets] are harmless,” he said. “I’d be happy to talk to the Justice department and see what would be the appropriate division that can look into it.”
State Sen. Loretta Weinberg (D-Bergen) also takes issue with Della Fave’s statement. “It would seem to me that any hate speech that seems to threaten anyone or causes anyone to feel threatened, it’s against the law.” Sen. Weinberg noted that hate crime and hate speech are separate from other offenses.
“I’m not sure if this comes under the heading of free speech or not,” she said, “but it should be investigated.”
Sen. Weinberg expressed concern that the hat the teen was wearing in the posted pictures appears to be a State Police hat. “If the hat she was wearing was indeed a State Police hat, that needs to be handled by law enforcement, too,” she said.
The clearly antisemitic teen is not named because of her age. Questions have been raised as to where she acquired her hatred of Jews. In many cases, experts say, the children are simply reflecting the views of their parents or close peers. Her father has declined to comment on the case to the press.
What this teen did confronts the limits of the First Amendment. Courts have ruled that yelling “fire” in a crowded theater is not protected speech unless the building is actually burning, which is why another lawmaker from Bergen County, State Sen. Bob Gordon (D-Fair Lawn) took a different approach. He said that under the First Amendment “…you can say outrageous things. Someone in law enforcement should assess this situation. There are people who have mental issues,” he continued, “and say and do horrible things. We’ve got to leave it to law enforcement to decide what action should be taken.”
Gordon said the photos, especially wearing the State Police hat, are “…not the images we expect from members of the State Police. I can’t say if she learned these hateful thoughts at home or in school. We must be vigilant and these types of instances must be investigated.”
ADL and other Jewish defense organizations are aware of how hate spreads on the Internet. The Ocean County teen’s posts had responses from friends who also made blatant antisemitic comments. The teen in question then compounded her actions by posting a picture of a group of Orthodox Jews relaxing outside an ices stand enjoying Italian ices. Her caption read: “Perfect bombing time.”
Again Della Fave and the prosecutor’s office felt that labeling that photo of Jewish people that way did not rise to the level of an actual threat. He also contended that the teen was not given any special treatment because her father is a trooper and a former colleague of Della Fave.
When It Hits Closer to Home
This week in Denmark, a 22-year-old descendant of Palestinians, Omar El-Hussein, opened fire on a free speech conference featuring a cartoonist who had mocked Mohammed. He moved on to a Copenhagen synagogue and killed Dan Uzar, a security volunteer.
In France, the incidents of terrorist attacks against Jews and others culminated in Charlie Hebdo murders. Everywhere we turn, terror attacks have one thing in common: they are motivated by the hate speech of extremists who know how to activate people. Hate speech prevailed in Rwanda, in Darfur, in the Balkans, it prevails wherever people are pitted one against the other. These are the lessons taught to New Jersey school children by the State of New Jersey. These mandatory classes are designed to teach kids to stop the hate. People are asking, “What happened here? And why is the enforcement system failing in this case?”
Even progressive school districts such as New Milford in Bergen County are not immune.
That being said, the school district has had its own problems. In one case a Jewish teen was mocked by another he thought was a friend. The “friend,” in front of a group of others, threw a penny on the ground and taunted, “Hey Jew boy, go get it.”
In this case the Jewish teen’s parents took it up with the mother of the young antisemite and insured it would not happen again. In the Ocean County case a State Trooper at the girl’s home told a journalist “You’re talking about a minor. No interviews.”
In 1981, New Jersey passed a hate crimes law that was overturned by the Supreme Court in 1994. That same year, New Jersey’s Holocaust education bill, sponsored by the late Sen. Matthew Feldman (D-Teaneck) was approved and signed into law by then Gov. Christie Whitman, only a week before Feldman passed away. Some might therefore question the effectiveness of mandatory Holocaust and Genocide Studies in some New Jersey school districts. In 2007 new hate crimes laws were proposed and eventually passed.
Bernard Bell, professor at Rutgers School of Law opines that because of the Constitutional guarantee of free speech as written in the First Amendment, it would be difficult to obtain a conviction. He may be wrong.
Under the original law, a hate speech suit was brought against the New Milford School Board concerning a Jewish student who had been called a kike, shoved in front of a school bus, and been accosted by a student at the entrance to his classroom with cries of “No Jews allowed.” This was compounded by a social studies teacher who told his class that the Diary of Anne Frank was a lie. The student then told the Jewish boy that the Holocaust was a Jewish fabrication, and that he was going to hell for killing Jesus. When the principal was confronted with this information he commented that the Jews had indeed killed Jesus and that the Holocaust was just a matter of opinion.
The suit resulted in a hefty fine against the school board, the probation of a student, and the creation of a character development program from the Josephson Institute of Ethics. Holocaust Education was already mandatory, though the school did a terrible job of it. What happened in that incident pales besides the actions of this teenager from Ocean County.
A year later, the principal who made the statements was gone, and Colleen Tambuscio, a special education and history teacher, who is also president of the Council of Holocaust Educators, was hired at the high school. She is the person who takes New Milford High students to Poland. One of their “tasks” is to visit and clean the grave of Beis Yaakov founder Sarah Schnirer, as they learn about the dangers of hate speech and the importance of pursuing justice. They meet with survivors and partner with other public schools and even a Catholic school on the West Coast to give teens a feeling for what happened and how they can prevent it.
The Ocean County Prosecutor, said Della Fave believes that this teenager poses no credible threat to the community. But this was not a one shot deal. She apparently posted a number of times wearing the swastika and giving the infamous Nazi straight-armed salute, and her friends approve.
By Bob Nesoff
