Inciting Terrorism Is Not Free Speech
Our law has long recognized that words can be dangerous, even criminally so. That is why we have rules against crimes like solicitation, incitement, and conspiracy. To be sure, the line between protected speech and speech in furtherance of criminal behavior is fuzzy. But courts are perfectly willing to uphold convictions involving, for example, antitrust violations based on this distinction.Seth Mandel: Josh Shapiro and the ‘No Free Shots’ Rule
Despite these precedents, the court of appeals held that Al-Timimi’s convictions could not be squared with the First Amendment. Al-Timimi did not commit incitement, the court concluded, because his “exhortations were vague and general,” failing the “imminent lawless action” standard set out in 1969’s Brandenburg v. Ohio. Though he “encouraged unlawful acts generally,” he was not guilty of criminal solicitation because “the evidence did not demonstrate that he encouraged, with the requisite intent, a specific unlawful act.” This may seem like a loophole for bad actors, but the court reminds readers that “plenty of speech encouraging criminal activity is protected under the First Amendment.”
This is true, but plenty of speech is also not protected. The only standard the court employed to tell if Al-Timimi’s speech was protected was whether the criminal acts he encouraged were sufficiently specific. Since that standard can only be resolved by intuition, it’s probably best left to a jury—like the one that concluded Al-Timimi’s encouragement, advice, and instruction did meet that standard.
One wonders what is left of crimes like solicitation and conspiracy under the court’s reasoning. After all, prosecutors could have hardly hoped for better evidence in their favor. The men even testified at trial to Al-Timimi’s decisive role in helping them overcome their fears and join terrorist groups. If telling men you know are heavily armed to attack America is too vague and general to warrant prosecution, then any form of solicitation will be extremely hard to prove.
The Supreme Court will not likely review, much less overturn, this case. But it should be on the lookout for cases that allow it to re-establish the proper relationship between national-security concerns and the First Amendment.
The Court has already made clear that limitations on dangerous speech tailored to prevent terrorism are constitutional, even if applied liberally. In Holder v. Humanitarian Law Project (2010), the Court held that simply explaining the law to terrorist organizations may be prosecuted as material support for terrorism consistent with the First Amendment. “Given the sensitive interests in national security and foreign affairs at stake,” the majority wrote, courts should defer to the political branches when they “have adequately substantiated their determination that . . . it was necessary to prohibit” acts, even speech-based acts, that further terrorism.
In spite of this, lower courts have consistently balked at the notion of enforcing laws designed to disrupt terrorist networks before they begin victimizing Americans. They have set the bar for conviction so artificially high that, as in Al-Timimi’s case, no prosecutor could possibly reach them.
The First Amendment does and should protect even abhorrent expression. What got Al-Timimi prosecuted, though, was not the abhorrence of his expression. It was that his speech played an important role in getting dangerous people to take up arms against the United States. Judges’ appeals to the “vitality” of “offensive” speech in letting him off the hook ring hollow.
Jewish leaders wasted no time in taking the Harris Committee on Un-American Activities to task for its embrace of the dual-loyalty canard. And Harris certainly deserves every ounce of criticism she and her team have received, and probably more. After all, if Shapiro can be disqualified for having as a teenager visited Israel and volunteering on a kibbutz, it could potentially have a chilling effect on young American Jews, who are already being pressured into hiding their involvement in Jewish communal activities. The attack on Shapiro is an attack on American Jewry.Tevi Troy: Are Jews Still Welcome in the White House?
Which is why Shapiro’s response is so noteworthy. We know about the obnoxious questioning not from an anonymous campaign leak or (don’t laugh) a high-status reporter digging into the undercurrent of anti-Semitism at the highest levels of progressive organizing. We know about it because Josh Shapiro wrote about it, put his name to it, and swung back at his party’s presidential nominee for good measure.
“I wondered,” he writes, “whether these questions were being posed to just me — the only Jewish guy in the running — or if everyone who had not held a federal office was being grilled about Israel in the same way.”
In any event, Shapiro concluded, the whole affair “said a lot about some of the people around the VP.”
As to whether Shapiro would, as Harris requested, grovel and beg the forgiveness of people chasing Jews while cheering Hamas’s Nazi atrocities, he “flatly” said no.
What is unusual about this news cycle is not that an ambitious politician with national aspirations sought to put some distance between himself and his party’s failed past leaders, or that he would paint himself as having shown toughness and nerve in his own recollections of the incidents at hand.
Instead, what is striking is that he would do so on the subject of Israel and anti-Semitism. Shapiro isn’t letting them take free shots at the Jews.
The Harris team’s behavior was atrocious, but they might have expected to get away with it on the assumption that no one wants to draw attention to accusations that they are a double agent or a Manchurian candidate. Shapiro, however, refused to play that game. His response was, essentially, OK let’s talk about it. Let’s play “Ask the Jew” in front of the whole country.
Josh Shapiro wasn’t supposed to be confrontational about it. He was supposed to take the hint and know his proper place as a Jew in national politics. He was not supposed to tell them to their faces how offensive their medievalist questioning was, and then to tell the world.
There is probably not one campaign operative in a thousand who would tell Shapiro to center his Jewish pride at a moment when so many progressive activists and organizers are out for Jewish blood. It contradicts the conventional wisdom.
But conventional wisdom didn’t prevent some anti-Semitic and anti-Israel lunatic from burning Shapiro’s house while his family was inside on Passover. Should he apologize to the man who tried to murder his family, too? Surely the Harris campaign would say yes.
Shapiro didn’t ask for this fight, but he’s not running from it. Hopefully it stays that way. The next generation of American Jewish activists and politicians are watching.
Yet this same dynamic of high visibility combined with inter-elite competition and grassroots hatred may bring about a period of unprecedented friction and danger for Jews, in which high-level Jewish political involvement proves irksome to antisemites and even to other inter-elite competitors—who, in turn, will have no shortage of Jewish rivals to scapegoat. This dynamic would likely be mirrored throughout the rest of society. Disaffected individuals or groups may also target prominent Jewish officials as a way of gaining sympathy for violent actions. We saw an element of this with the Passover firebombing of Gov. Josh Shapiro’s mansion by a disturbed anti-Israel activist.Seth Mandel: Matt Gaetz and the Jewish Firebugs
Another, also unpalatable, possibility is that this fourth phase could couple rising elite and popular antisemitism with diminishing opportunities for Jews, as national politicians fear that prominent Jewish appointees might alienate key voting blocs, be they Muslims in Michigan, progressive Israel critics, or anti-globalists on the right. In the summer of 2024, for example, Gov. Shapiro’s Jewishness clearly seemed to count against him in the Democratic vice presidential selection process, as demonstrated by the offensive question from the Harris team of whether Shapiro was an Israeli agent. Bypassing Shapiro resulted instead in the choice of the less-talented Tim Walz as Kamala Harris’ running mate.
In fact, there is evidence to suggest that the increasing mainstream acceptance of antisemitism in both major parties may already be causing the pipeline of future higher-level Jewish appointees to dry up. Baer, for one, suggested that the high-level Jews in the Biden administration could be a lagging indicator, reflecting high Jewish participation in the Clinton and Obama years rather than the current reality. According to Baer, some Jews faced challenges breaking into the lower levels of the Biden administration, which could affect Jewish participation in future Democratic administrations. This could stem from both discomfort with Jews from anti-Israel Democrats and reductions in qualified Jewish applicants being admitted to top schools—driven by that same discomfort. In the future, Baer feared that opportunities for Jewish staffers “might be hitting a brick wall depending on where the Democratic Party goes.”
Related to this are concerns about a broader decline of Jews in elite institutions. As Jacob Savage wrote in his widely read 2023 Tablet article “The Vanishing,” “Suddenly, everywhere you look, the Jews are disappearing … In academia, Hollywood, Washington, even in New York City—anywhere American Jews once made their mark—our influence is in steep decline.” If it continues, this scenario could be bad for Jews and bad for America, as countries that mistreat their Jews often struggle with other pathologies. Bernstein, however, is less worried, noting that the likely 2028 Democratic candidates have “plenty of Jewish senior people around.”
A third direction that the future may take is that the current surge in antisemitism will wane, and the fourth phase will be a better version of the third phase, with opportunities rising and antisemitism dwindling. This scenario is optimistic about both the Jews and America. As former Obama and Biden aide Chanan Weissman notes, “The Jewish story is the best story that America tells about itself.” He adds, “Societies that treat their [Jewish] communities well, benefit.” His scenario may not be one that many Jews see as likely at the moment, but it would be in keeping with the generally positive trajectory we have seen up until now. The problem with it is that straight-line extrapolations are often lacking in predictive power; in this case, they ignore the recent reemergence of antisemitism—which appears to be quite real.
The long history of the Jews and power in America is ultimately unique because of how little public controversy it has caused. Jews and Jewish ideas have been an essential part of this nation since its founding. While the current attacks on Jews from both the left and the right are by no means unique in the context of Jewish history, they are alien to American political culture—which is what makes this moment frightening. The attempt to mainstream antisemitism on both the left and the right should be properly understood as an attack by extremists in both parties on the existing political culture and on the principles of the American founding.
The American tradition is far more closely linked to the Jews and their many contributions to it than it is to the antisemites of the left or the right, whose hatred of the Jews reveals a rejection of that tradition—which they hope to reorder and replace with various European-born ideologies, from communism to fascism to theocracy, that have proven toxic to their political hosts. As Americans, Jews must lean in rather than retreat in the face of antisemitism, which in turn entails an embrace of this nation’s philosemitic and Enlightenment-based founding principles.
In America, Jews belong everywhere, from the White House on down. Any future White House that rejects Jews would be reflecting its own rejection of the American founding tradition.
As Jews, we’re encouraged to be a light among the nations. But sometimes I think people get the wrong idea. Every so often, we are collectively accused of setting things alight among the nations.
That’s what happened in recent weeks as fires raged in Argentina. A conspiracy theory gained some traction online that held that Israelis were setting wildfires in Patagonia in order to cheapen the value of land and then buy that land. How were they setting the fires? With Israeli grenades.
By January 12, all of this had been thoroughly debunked, and an Argentine broadcaster at the center of it apologized. Naturally, the following day, Matt Gaetz—the scandal-soaked weirdo chased from Congress by ethics investigations into another career as a wannabe Candace Owens—did a whole segment repeating the conspiracy theory about Jewish firebugs and Zionist grenades.
The fact that Gaetz chose to run a segment on it after the country where it started denounced and debunked every falsehood is one reason Gaetz is viewed as a clown even among the crowd of maniacs he associates himself with.
Nevertheless, this clown was a congressman and was even nominated to be attorney general by President Trump. Tucker Carlson, currently the dean of the anti-American propaganda fetishists, has been making appearances at the White House. So we have to grapple with the question of how much damage we think the right-wing influencer ecosystem is capable of. After all, it wouldn’t be much consolation to say Matt Gaetz has the intellectual depth of a ceramic ash tray if he were the U.S. attorney general.
One type of damage is indicated by the fact that we’re talking about the firebug conspiracy theory, and that such a canard is worth talking about at all. On that front, history has a warning.
Included in the anti-Semitic slang that has managed to persist through time is the phrase “Jewish lightning.” It’s a relic, and it’s not all that common, but it refers to the reputation that American Jews got thanks to rumors that they were uniquely liable to carry out insurance fires in the 19th century. As a result, insurance companies began to deny Jews insurance coverage. Industry manuals warned of the risk of Jewish firebugs.













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