‘Support Israel, Defeat Jihad’ Subway Ad: Incitement or Protected Speech?

October 5, 2012

"In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad." 

This is the full text of an ad that has recently been on display in the New York City subway. In an article published on September 26 in the New York University (NYU) student newspaper, the Washington Square News, NYU student Faria Mardhani draws a number of conclusions about what this phrase means and what consequences the ad might bring. She writes:

The United States is one of the only democracies in the world that does not prohibit hate speech that incites animosity toward certain groups of people even though acts like this are clearly insulting the spirit of the First Amendment. The U.S. legal system’s refusal to accept this minimizes equality among Americans and reduces America’s sense of democracy.

Mardhani’s argument illustrates one of the dangers of restricting "hate speech": the risk that a critic can claim offense in order to subject that speaker to censorship or prosecution. The "spirit of the First Amendment" is stifled by this danger—not, as Mardhani asserts, the danger of someone feeling personally offended. Unfortunately, it’s the spirit of "Unlearning Liberty" that is most readily invoked by this student column. 

Mardhani writes that this ad "subjects" Muslims to "violence and discrimination." Speech that effectively amounts to these sorts of illegal actions can certainly be restricted; sometimes speech is so closely linked to subsequent acts that it cannot be protected as "pure speech." For instance, speech that is used by a con artist to convince someone to give them their money under false pretenses may be speech, but it’s also the action of fraud. This exception to freedom of expression is well-established, but it’s not even close to applicable here. 

In Brandenburg v. Ohio (1969), the Supreme Court set forth the standard for determining whether speech can be punished for its effect on others’ actions: the speech must be both directed to inciting, and likely to actually incite, imminent lawless action. The ad fails to meet these criteria in several ways. Mardhani and others interpret the ad as calling for a "war against all Muslims." Note, though, this statement from the Brandenburg Court (with emphasis added):

[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.

Beyond that, the intent behind this message is disputed. Pamela Geller, Executive Director of the American Freedom Defense Initiative and blogger at Atlas Shrugs, the ad’s sponsor, suggests that rather than encouraging a war against all Muslims, the ad censures the subset of Muslims who commit violent crimes against Jews in Israel. Yet advocates for censorship of the ad cling to their broad interpretation of this speech despite explicit statements to the contrary by its author. That’s their right, but it has very little to do with whether the ad actually constitutes incitement. As mentioned above, whether or not the speaker intended to incite people is an important element in establishing whether he or she is guilty of incitement. Whether or not the ad ends up inspiring someone to commit violence, if the author did not intend for it to do so, he or she did not engage in illegal incitement.

Finally, and critically, it is important to distinguish between incitement to violence and simply making people very angry. Incitement calls people to action on behalf of its speaker. Possible incitement is judged by the effect it has on those who potentially support the speaker. In contrast, some speech is meant to induce the insulted or targeted party to respond in a concretely harmful way. This speech is referred to as "fighting words," and is evaluated with its own standard—a standard to which the ad does not rise. While the Supreme Court in Chaplinsky v. New Hampshire (1942) defined fighting words as those which "by their very utterance … inflict injury or tend to incite an immediate breach of the peace," later cases have limited liability to cases where the words are directed at an individual who is actually likely to fight. Application of fighting words doctrine has become uncommon because its definition is so narrow; it essentially applies only in face-to-face encounters where one person could successfully provoke another to an immediate and violent response.

Mardhani misses another key distinction with her discussion of history. She reminds us that Jews, African-Americans, Japanese-Americans, and LGBT citizens have all been subject to discrimination and been targets of violence in the past. Allowing anti-Muslim speech, she argues, opens the door to similar abuse of Muslims. She fails to acknowledge that she is crossing a line that the Supreme Court has spent decades making bolder—the line between speech and acts. 

The Civil Rights Act of 1964 is still in effect, protecting Jews, African-Americans, and Japanese-Americans, among others, from discrimination in public accommodations and employment. Criminal laws prohibiting violence are also still in effect, of course. As discussed above, true incitement to violence is still prohibited; if someone sets out to spur people to physically hurt others, demanding a physical response before the opportunity for counter-speech, that demand can be treated as an act rather than as pure speech. Again, this ad does not meet the criteria for incitement set forth by the Court in Brandenburg. "Support the civilized man. Support Israel. Defeat Jihad." Defeat politically? Defeat persuasively? It is unclear.

It is clear, though, that Mardhani feels like what she sees as a printed attack on Muslims is as objectionable as a physical attack, and should be similarly actionable. The Supreme Court has consistently rejected this idea, emphasizing the importance of passionate, if uncomfortable, debate. In Terminello v. Chicago (1949), the Court noted that the First Amendment "may indeed best serve its high purpose when it induces a condition of unrest … or even stirs people to anger." Further, when prosecution is justified by a claim of offense, rather than an objectively verifiable act, it allows a controlling majority to discriminatorily suppress the speech of those with minority viewpoints or religions. On October 3, in The Daily Beast, Hussein Ibish alerted us to this phenomenon occurring already in other parts of the world, where restrictions on speech "have nothing to do with ‘respect’ or ‘sensitivity’ to religious sentiments but are all about authority, control and social domination." 

So, reviewing Mardhani’s column, we are left with a refusal to acknowledge a speaker’s intent, coupled with a lack of understanding of the differences between pure speech, speech that might result in an immediate physical result, and non-speech acts. The subway ad at least arguably falls into the first category, and necessitates an intent analysis if it falls into the second category. Mardhani would have us skip to classifying this speech as an act in and of itself.

The U.S. government, she says, "overlook[s] the dignity of Muslims to uphold what the [sponsor of the ad] chooses to call free speech." I will suggest an alternate explanation of what happened here: The sponsor calls this free speech because speech is free by default. The potential hurt feelings of some are not enough to overcome the vast benefits of maintaining a society where people are truly at liberty to express themselves, without fear of governmental reprisal. Setting aside the safeguards already put in place by the Supreme Court creates the danger that a speaker who was speaking her mind in a peaceful way can be censored or prosecuted if her critics can successfully put words in her mouth.

Ultimately this story ends with a powerful illustration of the correct response to speech one finds offensive or hateful: more speech. As Ashwaq Masoodi wrote for The New York Times yesterday, Rabbis for Human Rights and Sojourners have created ads urging people to "Choose love" and "Love your Muslim neighbors." The ads will start running in the New York subway on Monday.