Anti-Israel activists insist that their protests in America are protected under the First Amendment. After calls for a “Jew hunt” in Amsterdam and the orchestrated attacks that followed the online organization, it is time to evaluate when hateful rhetoric, such as “globalize the intifada”, crosses from protected speech to incitement of violence.
The slogan “globalize the intifada” references two previous Palestinian “uprisings”, one in 1990 and the other in 2000-2005. These periods were marked by suicide bombings in Israel on buses and in other public spaces, stabbings of civilians, and other acts of violence. Since October 7th, the slogan has been used on college campuses including Chapman University and UCI. It has been shouted in City Hall chambers in Irvine, Santa Ana, and Anaheim, by protestors ironically calling for “ceasefire” resolutions. The chants to “globalize the intifada” have been used when targeting Israeli or Jewish owned businesses throughout the United States and even at the homes of prominent Jewish Americans.
This past week in Amsterdam fans of the Israeli soccer team were identified as Jews and then beaten in a premeditated attack. Jews were taunted as they were chased and tossed in the river. Assailants cheered “Jewish, Jewish, IDF, IDF” and “free Palestine” as they assaulted soccer fans visiting the city. After the Amsterdam attack, Jews in Stockholm were battered. This weekend in New York, a masked man attempted to snatch a small Jewish boy walking with his father in an orthodox Jewish neighborhood.
In Brandenburg v. Ohio, the United States Supreme Court developed a legal standard to evaluate when speech could be restricted based on incitement to imminent lawlessness. The Supreme Court held that to limit such speech it had to be 1) directed at inciting or producing imminent lawless action and 2) be likely to incite or produce such action.
In the particular Court case, Ohio’s law restricting speech was found to be unconstitutional. The Supreme Court found that the KKK’s rights were violated and the state statute was overly broad. The Ohio legislation’s constitutional shortcoming was the fact that it did not evaluate whether the hateful speech would actually incite violence. The prevailing Supreme Court test errs on the side of free speech. It is designed to balance the First Amendment’s protections with the need to protect public safety.
The Supreme Court favors a generous reading of the First Amendment. Free speech is a pillar of American democracy even when the speech in ugly and hateful. But, as a society, we must not tolerate chants and slogans that are obvious calls for violence.
Have the events of the last week shown that chants such as “globalize the intifada” meet the Brandenburg test? The bloody riot in Amsterdam and spreading violence against Jews worldwide have indeed shown that slogans which have permeated society for the last year are both directed at inciting violence and likely to incite such violence. Chanting “globalize the intifada” promotes indiscriminate acts of violence against Jews. Full stop.
Congress and state legislators need not struggle with how to draft new legislation to reign in the hate speech which has proven to incite violence. Such regulations would rightfully be tested in courts to assure that any such hypothetical legislation is not overly broad, thus delaying any immediate implementation. Universities and municipalities are already equipped with constitutionally tested time, place, and manner restrictions. Universities must stop pretending that the hate on their campuses, including upside red triangles marking Jewish targets, are “peaceful protests” and enforce their codes of conduct. City Councils must stop allowing government forums to be co-opted to spread antisemitism. Municipalities can enforce their decorum codes and limit the use of open meeting laws to topics within their subject matter jurisdiction.
An open society depends on the free exchange of ideas. It is often said that the antidote to bad speech is good speech. This may be true in a debate club, a structured University classroom, or the halls of Congress; but when mobs are given free reign to call for attacks and such chants actually produce violence, we must reflect. We must not allow our society to cross over from one that promotes the open discussion of thought and debate of philosophies to one that promotes violence against a subsection of our population, in this case, the Jews.
Julie Marzouk is an attorney, author, and activist. She lives in Irvine.