Physical violence is not protected by the First Amendment
As the US Air Force C-17 left Afghan airspace, I allowed myself to relax for a brief moment. My year-long tour in Kabul, Afghanistan was over. Returning home, I thought of those fellow soldiers, including my Command Sergeant Major, who had not been so fortunate. In their service to the United States, they had been killed by the Taliban. In remembering them, I thought of the oath that we had all taken: to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”
Now, as a former US Army Captain and a third-year law student, I have had the opportunity to further study the Constitution and the cases that have expanded and narrowed its original amendments. Particularly with the First Amendment, I have wrestled with whether there should be limits on what can be said. The battles that I am currently fighting are no longer with bullets in Kabul, but with ideas in the classroom.
Since entering law school, I have witnessed the vitriol directed at pro-Israel and Zionist students. At my law school, only one side of the story is told. To challenge the Students for Justice in Palestine (SJP) agenda is to be ostracized amongst the general student body. In becoming the Chair of the Alliance for Israel (AFI) club, I have put myself at the center of these debates over free speech. I have fought their hate, and what I believe to be virulent anti-Semitism, by hosting pro-Israel and Zionist speakers at the law school.
These collective experiences of serving in the military and being a law student have made me a free speech absolutist. I despise the hateful rhetoric that SJP spews about Israel. I believe, however, that they have a right to voice their opinions, no matter how ignorant. This is because I know that when I bring pro-Israel speakers to campus, these groups would want nothing more than for my events to be shut down.
Free speech is a double-edged sword. I am, therefore, fearful of the undefined label of “hate speech” and its infinite ramifications. Such labels can be redirected to causes that I support.
Despite my beliefs regarding freedom of speech, there are, nevertheless, limits to what the First Amendment will protect. In the seminal United States Supreme Court case of Brandenburg v. Ohio, the Court overturned the lower courts’ rulings that had found the defendant, an Ohio KKK chapter leader, guilty of violating the Ohio Criminal Syndicalism Act (OCSA). The defendant had been arrested after he gave a speech that degraded Jews and blacks. The Supreme Court held that:
“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (emphasis added).”
“Imminent” is the operative word. I do not call for UCLA to disinvite the 2018 National SJP Conference to be held on UCLA’s campus from November 16-18. Rather, it is imperative that UCLA and SJP understand the standard articulated in Brandenburg and put the appropriate protections in place to prevent any possibility of physical violence from occurring. This means that UCLA administrators and SJP National Conference organizers need to educate themselves on the past violence that has occurred after SJP rallies.
There are numerous cases of anti-Semitic incidents that resulted in physical violence. Many of these include documentation of SJP members physically assaulting pro-Israel and Zionist students.
For example, on April 27, 2018, an SJP protest against a pro-Israel event at New York University (NYU) turned violent when an SJP member “stole an Israel[i] flag [from pro-Israel students] and brought it to the [SJP] protesters. [The flag] was ripped, stomped on, defaced with pink chalk and then burned.” Also at the event, an SJP member “sneaked in during the singing of Hatikva, forcefully and hurtfully grabbed the microphone from the [pro-Israel student] who had been holding it, and shouted, ‘Free Palestine!’” The “SJP’s president explained the behavior of the protesters to Washington Square News saying, ‘We’re not going to let them stand by and support Zionism. Our point is to make being Zionist uncomfortable on the NYU campus.’”
This incident is only one in a series of documented physical assaults against pro-Israel and Zionist students. In opening its campus to the 2018 SJP National Conference, UCLA becomes an inviting location for such physical violence to occur. In viewing the Brandenburg standard, one can debate the imminence of such violence. What is more likely than not, however, is that in the wake of such SJP rallies, violence is more likely to occur.
In hosting this event, UCLA and the 2018 National SJP Conference should be held accountable for any physical violence that their conference attendees commit. Preparing for the worst, UCLA should have ample campus security in place to prevent SJP attendees from engaging in violent acts. UCLA should have designated protest areas. They should also have a zero-tolerance policy for any physical violence or destruction of property that occurs during the conference.
In addition, the 2018 National SJP Conference organizers need to understand that, yes, they can lie all they want about Israel and Zionism, but direct, immediate calls for physical violence are not legally protected. They should be held liable for any physical violence to Jewish, pro-Israel, or Zionist students and structures during and immediately following the 2018 National SJP Conference at UCLA. Once the line is crossed between hateful rhetoric, which is protected, and physical violence, which is not, campus authorities should react appropriately and arrest those physically violent offenders.
Contributed by Micah Q. Jones, a third-year law student at Northeastern University School of Law (NUSL). Before law school, Micah served over five years in the US Army. Micah is currently the chair of NUSL’s Alliance for Israel (AFI) club.
Originally published at JNS.org.