The context of this article are the rallies, at times vitriolic and vituperative, in favor of Hamas, a genocidal terrorist group bent on the destruction of Jews.
In my previous blog I discussed Hamas’ War Crimes and Crimes against Humanity committed by Hamas. I also discussed the the repugnant behavior of the elite schools in the United States, Harvard, Yale, Columbia, and my alma- mater, the University of California.
For purposes of this blog, I want to highlight for the audience the nuances of the First Amendment, Hate Speech, and the Inchoate crime of Incitement to Genocide.
In law school, we learn what a motley mess of jurisprudence the First Amendment is. The First Amendment is broad and includes the free exercise clause (religion), the freedom to associate with whom one wants, and the ability to speak or remain silent. The First Amendment is never an absolute right.
In trying to clarify when and how speech may be regulated, Justice Byron White, in Perry Education Association, 460 US 37 (1983), discusses the town square and view-point neutrality as to time, place, and manner. This analysis goes into the the ability to speak freely in a public forum. This is messy and begs the questions of what a public forum is, what is a limited public forum is, and what is a non-public forum. In brief, for purposes of this article, a public forum should give free reign to content-based speech, a limited public forum may be limited by time, place and manner and a non-public forum may be limited by time, place, and manner if it is reasonably related to the message.
Then came the internet and changed everything. It cannot be seriously disputed that in the 21st Century, the internet is a public forum. Facebook, Instagram, and all the other platforms are public fora. Historically, to foster the use of these platforms as forum free speech, the platforms were granted immunity under the Communications Decency Act, sec. 230.
What that means is that if someone posts something defamatory or unlawful, that person may be held liable but Google, Wikipedia, or Facebook, the entity hosting the defamatory speech, is immune under federal statute. The time has come and gone for sec. 230 and it must be abrogated in favor of the traditional public forum fora analysis. The largest corporations who use viewpoint-based algorithms to censor speech should not be free from responsibility. It is a truism that immunity leads to impunity.
The exchange of free ideas and diverse opinions are the bedrock of our Constitutional Republic, but this should not provide the public with a forum for hate speech or incitement to genocide.
The elite academic institutions should not be immune from hate speech in the face of barbaric terrorism, the decapitating of babies, and burning babies alive in ovens. This is unlimited free speech in the form of barbaric violence and threats of violence.
It is undisputable that the Students for Justice in Palestine statement “from the river to sea, free Palestine,” is a call for the genocide of all Jews in the State of Israel.
This invites discussion of what “hate speech” is. Hate speech is unclear and nebulous at best. Is it wearing a tee-shirt saying, “Go Branden Go!” or wearing a tee-shirt of Trump “Behind Bars”? No. These tee-shirts are part of public discourse under the First Amendment, with the right to speak and the right to have opposing opinions.
I began to think about my professional background as a lawyer in the civil rights and employment areas. Proximately, based on my understanding of California Statutory and Case-Law, for there to be hate speech, there must be some threat of violence, or intimidation leading to violence.
We see this is the civil harassment laws, the domestic violence laws, California’s Unruh’s act and California’s version of the federal civil rights act, the Bane Act.
What differentiates unpopular or disfavored speech which is protected from the unprotected “hate speech” is the threat of conduct or harm or indeed the commission of harm. With the context of what hate speech is, what is “Incitement to Genocide”?
Incitement to genocide is an inchoate crime under international law. See, ICC statute 25(3)(e). The primary examples of incitement to genocide are the Rwandan and Germany. Germany had its ministry of Propaganda with the concomitant newspaper Der Stürmer. Rwanda has it popular radio station and media. In these two historical events, Rwandans and Jews were equated to vermin which needed to be stamped out and eradicated.
It was a heightened and frenzied call for the eradication of a group or ethnicity of people. (Raphael Lemkin a Polish Jewish Lawyer created the word “genocide” in 1948 from the Greek, Genos, meaning: ethnicity, tribe or nation and the Latin (Cide, meaning to killing). The question becomes does the activity of Students for Justice of Palestine (SJP (Students for Justice of Palestine)) (which has been inciting violence against Jews for at least a decade) and it ilk fall under the categories of “hate speech” and/or incitement to genocide.
Incitement to Genocide is mentioned in the Convention on the Prevention and Punishment of Genocide (The Genocide Convention) at III(c) of 1948. It is described as: “Direct and public incitement to commit genocide.”
“The Rwanda genocide of 1994 was a planned campaign of mass murder in Rwanda that occurred over the course of some 100 days in April–July 1994. The genocide was conceived by extremist elements of Rwanda’s majority Hutu population who planned to kill the minority Tutsi population and anyone who opposed those genocidal intentions. It is estimated that some 200,000 Hutu, spurred on by propaganda from various media outlets, participated in the genocide. More than 800,000 civilians—primarily Tutsi, but also moderate Hutu—were killed during the campaign. As many as 2,000,000 Rwandans fled the country during or immediately after the genocide.” See, https://www.britannica.com/event/Rwanda-genocide-of-1994/Genocide, accessed October 24, 2023.
Radio Télévision Libre des Mille Collines (RTLM) was a Rwandan radio station which played a significant role in inciting the Rwandan genocide. Widely listened to by the general population, it projected hate propaganda against Tutsis and moderate Hutus. Specifically, “radio broadcasts fueled the the genocide by encouraging Hutu civilians to kill their Tutsi Neighbors, who were referred to as ‘cockroaches; who needed to be exterminated.” Ibid.
At the Nuremberg trials one of the defendants was Julius Streicher, publisher of the antisemitic weekly paper, Der Stürmer. Streicher was convicted of incitement to the mass murder of Europe’s Jews. Along with Joseph Goebbels, Streicher was one of Germany’s chief propagandists who linked inflammatory speech with criminal activity. See generally, Holocaust Encyclopedia, accessed, October 30, 2023.
Goebbels was a master inciter of genocide using all types of media, film, press and radio. He staged a massive book burning of Jewish Authors, and made the films, The Eternal Jew (which bolstered the idea of Antisemitism and Aryan supremacy), Triumph of the Will, about a rally at Nuremberg, and Olympia about the 1936 Olympics. It was Goebbels who called for demonstrations against the Jews, which led to Kristallnacht which destroyed 900 Synagogues, 7,000 Jewish businesses, and the deportation of 30,000 Jews to concentration Camps. It was Goebbels that called for the mass extermination of the ‘vermin Jew’ as part of the Final Solution. See generally, https://www.pbs.org/wgbh/americanexperience/features/goebbels-biography/accessed, accessed, October 30, 2023.
The best metaphor which fits this type of incitement is to envision a swarm of bees around a beehive and then taking a branch and agitating the bees to make the bees go “ballistic,” or as PBS writes, “whip the crowd into a frenzy.”
The Holocaust Encyclopedia argues that the key element of “incitement” versus “hate speech” is the broad application to the public at large using cultural nuanced, language. (Emphasis added.) Once such example is the reference by Goebbels, Streicher and Barayagwiza (from Rwandan Radio) to the Jews and Tutsi as vermin, and cockroaches who needed to be exterminated.
It is distressing, uncomfortable and unfathomable, that the United States as a beacon of freedom has a Congressperson such as Rashida Tlaib, of the 12th Congressional District in Michigan, who incites genocide. Exacerbating her calls to genocide is that she too, is an American trained lawyer. It is not much of a leap to gather that she knows exactly what she is saying and doing.
I watched as Tlaib refused to condemn the barbarity of Hamas’ murder, mayhem, and terrorism October 7, 2023. Tlaib ran to her office, probably Rayburn, protected by security, and closed the doors of the elevator, in the face of a journalist.
Tlaib is not the only “inciter of genocide” but in the interest of brevity my focus is on her. Borne of malice and hate for anyone Jewish she can drive a crowd into a frenzy. Aside from the huge platform or bully pulpit she carries, her statements on her website, and her latest video incite violence. Her video is available on “X.” See, https://twitter.com/RashidaTlaib/status/1720520713226908144, accessed November 4, 2023.
Notably in the video, she rants, “no peace on stolen land!” “Free, Free Palestine, the Occupation has to go,” “End the blockade, end the siege,” “from the river to the sea!” This video clip with Tlaibs comments is in front of hundreds if not thousands of people waiving the “Palestinian” flag.
Tlaib specifically calls for the destruction and eradication of the Jewish State of Israel. A Palestinian State from the “river to the sea” specifically calls for the ethnic cleansing, genocide, and destruction of Israel in any form.
Over a year earlier, Michael Starr wrote for the Jerusalem post on May 22, 2022.
US Congresswoman Rashida Tlaib and local politicians attended a “Nakba Day” rally in Dearborn, Michigan that saw a speaker call for violence on May 15.
“Everyone should fight within his means,” Arab American News publisher Osama Siblani said in a video on rally organizer New Generation for Palestine’s Facebook page. “They will fight with stones. Others will fight with guns. Others will fight with planes. Drones. And others will fight with rockets! And others will fight in their voice. And others will fight with their hands and say free, free Palestine!”
The crowd went into a frenzy over Siblani’s speech as Tlaib shared the stage. As the author of the article in the Jerusalem Post argues, Tlaib has given an air of legitimacy to his appalling calls for bloodshed in America,” said  “Extremist rhetoric like his has led to a spike in antisemitic hate crimes across America.” “Tlaib spoke at the rally.”
Rashida Tlaib released the following statement, October 8, 2023, one day after her Hamas’ brother’s obscene behavior.
“I grieve the Palestinian and Israeli lives lost yesterday, today, and every day. I am determined as ever to fight for a just future where everyone can live in peace, without fear and with true freedom, equal rights, and human dignity. The path to that future must include lifting the blockade, ending the occupation, and dismantling the apartheid system that creates the suffocating, dehumanizing conditions that can lead to resistance….” (Emphasis Added.)
When I watched the Tlaib twitter clip my mind immediately viewed the newsreels of the Nuremberg Rallies, with Hitler’s frenzied speeches, the horrific images of the ovens at Kamp Vught in the Netherlands with the little fuzzy teddy bears, left in memoriam for the children who lost their lives.
Tlaib is not the only inciter of genocide in the House, Andrea Ocasio-Cortez, and the others house members known as the squad are prolific delegitimizes of Israel.
Tlaib is a carbon copy of the Nazi propaganda playbook. The “never again,” has turned into “everything changes, but stays the same.”
Below are examples of incitement as opposed to hate crimes. The incitement is a frenzied call to action on a broad audience.
These are but a few examples that I have read of in the media. I know of many more.
Jewish man dies after being assaulted during pro-Palestinian Arab protest in Los Angeles, https://www.israelnationalnews.com/news/379847,accessed, November 6, 2023.
Two UC (University of California) Berkeley students assault a Jewish student during Monday’s pro Palestinian rally. https://twitter.com/StopAntisemites/status/1715172700631507345, accessed, November 6, 2023.
“We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.” That evening, it was issued on Instagram by the Harvard Graduate Students for Palestine and the Palestine Solidarity Committee (P.S.C.), with signatures from more than thirty other campus organizations.” https://www.newyorker.com/news/dispatch/the-anguished-fallout-from-a-pro-palestinian-letter-at-harvard, accessed, November 6, 2023.
Claudine Gay refused to condemn or punish students who blamed Israel for last week’s Hamas terrorist attacks…. Gay in her statement made no mention of the 34 student organizations that co-signed a Saturday letter issued by the school’s Palestine Solidarity Committee that held Israel “entirely responsible for all unfolding violence.” https://nypost.com/2023/10/13/house-gop-conference-chairwoman-stefanik-calls-on-harvard-president-to-resign-over-failure-to-condemn-student-groups-that-backed-hamas, accessed November 6, 2023.
Jewish Students at NYC College Urged to Hide in Library Attic to Escape Unruly Pro-Hamas Mob, https://www.nysun.com/article/jewish-students-at-nyc-college-urged-to-hide-in-library-attic-to-escape-unruly-pro-hamas-mob, accessed, November 6, 2023.
“My heart is in my throat. Prayers for Palestinians. Israeli is a murderous, genocidal, settler state and Palestinians have every right to resist through armed struggle, solidarity #FreePalestine,” Associate Professor of American Studies, Ethnicity, Race, and migration, and Religious Studies, Zareena Grewal said in a post on X on Saturday. https://www.fox61.com/article/news/nation-world/israel-hamas-conflict/yale-professor-called-to-resign-following-comments-israel-hamas-war/520-f22774a0-d65c-4772-beec-79442c0bf088, accessed, November 6, 2023.
Posts advocating violence against Jews, including slitting their throats, assaulting Jewish women, and destroying the Jewish Living House and dining hall, appeared on a review site for fraternities and sororities. The authors of these posts identified themselves as “Hamas,” “Hamas soldier,” and “kill the Jews.” Additionally, antisemitic graffiti emerged on the main campus. https://www.jpost.com/opinion/article-771828, accessed, November 6, 2023.
Then last weekend, Chemerinsky, a constitutional law scholar who is Jewish, published an op-ed of his own in the Los Angeles Times. He described antisemitic remarks directed at him since the war started, as well as statements from students and academics around the country that he said, “celebrated the Hamas terrorist attack.” …. “There has been enough silence and enough tolerance of antisemitism on college campuses,” he wrote. “I call on my fellow university administrators to speak out and denounce the celebrations of Hamas and the blatant antisemitism that is being voiced.” https://www.latimes.com/California/story/2023-11-03/a-divide-over-the-israel-hamas-war-flares-at-uc-”berkeley-law, accessed, November 6, 2023.
New York University said it was investigating students recorded tearing down Israeli hostage posters, and its law school is investigating since-removed Student Bar Association President Ryna Workman for using the SBA newsletter to declare “Israel bears full responsibility” for the Hamas attacks. https://justthenews.com/accountability/watchdogs/zero-tolerance-unchecked-harassment-jews-prompts-financial-threats-against?utm_source=justthenews.com&utm_medium=feed&utm_campaign=external-news-aggregators#google_vignette, accessed November 6, 2023.
A Jewish student running for a seat on a judicial council at UCLA was questioned about how she would decide on a matter that dealt with Jewish students should she be elected, according to a video clip….According to a video clip posted on YouTube, an unidentified student posed the following question: “Given that you are a Jewish student and very active in the Jewish community … given that recently … [inaudible] has been surrounding cases of conflict of interest, how do you see yourself being able to maintain an unbiased view … [inaudible]?” https://www.cbsnews.com/losangeles/news/ucla-students-jewish-background-questioned-during-vote-for-judicial-board/, accessed, November 6, 2023.
In my previous article I wrote that it is the academic elite that foment the violence. We see the slow-to-no action of Harvard, the UC Regents, Yale and Cornell. When I returned from the Hague in 2011, I said the argument that Anti-Israelism is not different from Antizionism and Antisemitism. If anything, this article presents a case that there is no difference between Antisemitism and Antizionism.
Last night, The House of Representatives voted to censure Rep. Rashida Tlaib for defending Hamas’ Oct. 7 terror attack against Israel as “resistance” and calling for the destruction of the Jewish state. See, https://nypost.com/2023/11/07/news/house-on-track-to-censure-rep-tlaib-for-defense-of-hamas-and-calls-to-destroy-israel/, accessed, November 7, 2023. Although the House’s censure is purely symbolic, it is significant because Tlaib is only the 26th member of the House to be censored in the history of our Republic.
It is time for the Universities in the United States to ban SJP from their campuses. The argument the incitement to genocide (in violation of the Genocide Convension and Rome/ICC Statute) is protected speech is fatuous.