Free Speech and Incitement Blurred Boundaries International Association

Free Speech and Incitement: Blurred Boundaries International Association of Women Judges Regional Conference Budapest, Hungary April 14, 2011

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Word-Deed Continuum From Narrative to Action • Ludwig Wittgenstein (1945): Ø "Words are deeds" • John L. Austin (1955) in How to Do Things With Words: Ø "The issuing of an utterance is the performing of an action” • Talmud - Jewish Law and Ethics (200 C. E. ) Ø “A good thought is smelted by God into an action (i. e. God makes sure to turn it into an action). A bad thought is not smelted by God into an action (i. e. God makes sure that it does not become an action)” (Pe’ah, Chapter 1 Tosefta 4)

Existence unquestioned © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Consensual Over means resources Faulkland Malvinas Negation of the “enemy” Conflict Over values Dissensual / ideology Pal/Hamas Hezb/Iran Al Qaida + Existence threatened

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Terms of Reference: Perpetrator • Perpetrator: Ø Non-Violence (Narrative) Ø Hate Ø Vilification Ø De-Humanization Ø Incitement Ø Danger: Legitimizing hate-based ideology Ø Violence (Action) Ø Terrorism War Ø (Lebanon 1982, 2006; Afghanistan; Iraq)

Global Aspirations © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Al-Qaeda deputy Ayman Al-Zawahiri on imperial Islamic ambitions: “Strive to establish the Caliphate; fight until the word of Allah [reigns] supreme. . . aspire to liberate every inch of Islamic land from Andalucia to Chechnya (December 16, 2007, the Islamist website http: //www. ekls. org). Bin Laden and other Moslem terrorists demand the “restoration” of the Muslim caliphate from Andalucia to the Philippines. ” • The preoccupation with Iraq or with the Palestinian issue – as a supposed root cause of anti-Western Islamic terrorism – diverts Western attention away from the strategic goal of rogue Moslem regimes. Thus, it rewards these regimes and advances their agenda in Europe and elsewhere, while undermining the national security of western democracies.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Terrorism • Terrorist-inspired

Is there a pattern? © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • 1990: "A prescription drug for … depression" (to explain the assassination of Rabbi Meir Kahane) • 1991: "A robbery gone wrong" (the murder of Makin Morcos in Sydney) • 1994: "Road rage" (the killing of a random Jew on the Brooklyn Bridge) • 1997: "Many, many enemies in his mind" (the shooting murder atop the Empire State Building) • 1999: “Suicide of a ‘distressed’ pilot with personal problems” (the downing of Egypt Air) • 2000: A traffic incident (the attack on a bus of Jewish schoolchildren near Paris) • 2002: "A work dispute" (the double murder at LAX)

Is there a pattern? © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • 2002: A "stormy [family] relationship" (the Beltway snipers) • 2003: An "attitude problem" (Hasan Karim Akbar's attack on fellow soldiers, killing two) • 2003: Mental illness (the mutilation murder of Sebastian Sellam) • 2004: "Loneliness and depression" (an explosion in Brescia, Italy outside a Mc. Donald's restaurant) • 2005: "A disagreement between the suspect and another staff member" (a rampage at a retirement center in Virginia) • 2006: "An animus toward women" (a murderous rampage at the Jewish Federation of Greater Seattle) • 2006: "His recent, arranged marriage may have made him stressed" (killing with an SUV in northern California) • 2009 (March): “An individual act of violence - Should not attribute (Arkansas National Guard) officer killed to the Islamic Faith” • 2009 (November): “The shootings were the act of a lone wolf, a crazy man, an aberration, no linkage to Islamic terrorism. ” (Fort Hood)

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University MEMRI: Arab Media December 17, 2009 • Protocols of the Elders of Zion: Stressing Jewish Zionist plots to take over the world 1. Kuwaiti daily Al-Qabas: The Zionist Cockroach 2. Syrian government daily Al-Thawra: Plan for world domination set out in (PEZ) is being implemented today 3. Egyptian government daily Al-Ahram: recent events in the Middle East – including the "inevitable" clash between Iran and Israel – part of the Zionist plan to establish a Jewish kingdom to rule the world.

MEMRI: Iran February 25, 2010 © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Ahmadinejad Repeated Calls to Eliminate Israel Ø Feberury 25: press conference with Assad in Damascus Ø"A Middle East without Zionism is a divine promise. . . Ø February 23: speech in Birjand in eastern Iran Ø “if Israel makes one more mistake, this is the end of this regime” Ø February 18: phone conversation with Nassralah Ø “an end will be put to Israel and the region will be delivered from its evil” Ø February 18: conversation, with Lebanese President Suleiman Ø “the matter [of Israel] will be ended” Ø February 10: phone conversation with Syrian President Assad Ø “an end must be put [to the Zionist regime]”

Iran (Reuters): February 28, 2010 © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Iran army official: Our missiles can reach all our enemies Ø Iran could make European countries suffer by cutting off energy supplies and can target any adversary with its missiles, a senior Iranian military official said on Sunday. Ø "Our missiles are now able to target any spot in which the conspirators are in, and the country is making advances in all fields, " he said.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University IRAN: June 16, 2010 • President Ahmadinejad: "Over 60 years ago, by means of an artificial and false pretext, and by fabricating information and inventing stories, they gathered the filthiest, most criminal people, who only appear to be human, from all corners of the world. They organized and armed them, and provided them with media and military backing. Thus, they occupied the Palestinian lands, and displaced the Palestinian people. [. . . ]”

Kenya • • © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Muslim clerics tell Ruto to stop ‘incitement’ Published on 06/06/2010 By Athman Amran Muslim leaders have cautioned Kenya Minister for Higher Education William Ruto against inciting conflict between Muslims and Christians. The leaders took offence with Ruto’s call on Muslims to reject the Proposed Constitution to avoid conflict with Christians. Ruto said this while speaking to councillors in Kwale on Friday. "Ruto has to watch his language so that he does not incite conflict, " chairman of the National Muslim Leaders Forum Sheikh Abdillahi Abdi said on Saturday.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Palestinian Authority • PA Daily: America must be Fought in Iraq - Israel Must be Destroyed • The PA's Anti-US Message (28. 10. 03) • by Itamar Marcus - Palestinian Media Watch • "History is repeating itself. Muhammad was besieged by two powers, Persia in the east and Rome in the west. Persia represents Russia, and America stands for Rome. Persia fell first, just as Russia fell first in the east. And America will fall, may it be Allah's will, just as Rome fell. "

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Palestinian Appointed Mufti:

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Hamas/Al Qaida • Hamas Weekly: Anthrax should be put into America's drinking water (July 11, 2001) • Anwar al-Awlaki - thought to be in Yemen - said in a 10 -plus-minute audio recording released March 17, 2010: “Muslims should wage jihad upon America because of the invasion of Iraq and continued U. S. aggression upon Muslims. ”

U. K. /U. S. © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Americans will always be a target -- and a legitimate target -- until America changes its nature in the international arena, “ Younes Mohammed, NYC November 5, 2009 • British Channel 4 documentary on 1 -1 -2007: recorded in secret inside numerous mosques in Great Britain reportedly uncovered disturbing evidence that various British imams preach hatred of Jews and Christians, along with the submission of women and Islamic supremacy

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Australia • Unnamed (under police advice) Radical Islamic elder preaching jihad in Perth's suburbs (March 27 -2010). • [A RADICAL Islamic elder who] praises the Taliban and preaches violent jihad to a band of keen followers is being investigated in Perth by Western Australia and Federal police (The Sunday Times).

Canada • • • © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University “Attack – Exterminate Them Now” Twitter: June 24, 2010 Salman An-Noor Hossain Web: Filthy Jewish Terrorists Dot Com “Attack - Exterminate Them Now! The Jews are the ultimate threat. They must be physically removed from existence. Once and for all. No questions asked. ” • On July 8, 2010, the OPP filed charges of promotion of genocide and willfully promoting hatred against an identifiable group

Egypt © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • September 2, 2010 • Egyptian Cleric Salem Abu Al-Futuh: “We Will Conquer Italy and the Rest of Europe, as Well as North and South America; The West Will Convert to Islam” • Salem Abu Al-Futuh: "The nation of Islam will return – despite our current crisis and despite the arrogance of the West. The West is bound to be destroyed. Just like Allah destroyed the Byzantine and Persian empires, He will destroy the West at the hands of the Muslims. This is an unequivocal promise. These countries will convert to Islam will reach these countries. ”

U. S. /World © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Latest al-Qaida Magazine – “Inspire” - Stokes Homegrown Terror (Emerson, October 12, 2010) • Al-Qaida presses for Muslims in America and other Western nations to wage homegrown terrorist attacks (in the second issue of its Englishlanguage magazine), offering grisly suggestions that "would cause chaos and trauma among the public. "

U. S. /World © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • The most disturbing sections come from someone identified as Yahya Ibrahim. He suggests ideas for terrorist attacks and offers advice on how to wage jihad without generating scrutiny from law enforcement or intelligence agencies. • The graphic for the article "The Ultimate Mowing Machine" is taken from a Ford F-150 advertisement showing a truck splashing through puddles as lightning strikes in the background. • "The idea is to use a pickup truck as a mowing machine, not to mow grass but mow down the enemies of Allah, " Ibrahim writes. "Maximum carnage" can be created by adding steel blades to the front grill of the truck and driving it at high speed into a crowd of pedestrians. The attacker can bring a gun to "finish off your work if your vehicle gets grounded during the attack. "

Iranian threat © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Ayatollah Jannati in Friday Sermon (August 13, 2010): – Iranian People Know That U. S. Is Their Enemy; • In Meeting with Turkish Ambassador to Tehran: – Collapse of U. S. Imminent, Islamic Countries – Like Iran and Turkey – Are Rising

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Progressive blog Daily

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Indymedia – December

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Published by Indymedia

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Cartoon portraying Israel as a jackbooted, goosestepping, mindless Nazi-like monster, was initially published in the New York Times and the Washington Post – March 25, 2009

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Flotilla Cartoon

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Nazi depiction of

First Amendment © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • Brandenburg v. Ohio (1969): Ø Vengeance against: Jews, Blacks, Government Ø Protected because there was no evidence it: • Explicitly advocates unlawful conduct, and • The conduct was not likely to follow “imminently” from the speech • Hess v. Indiana (1975) Ø “we’ll take the fucking streets later” Ø Protected because: • Not directed to specific person • No evidence speech intended to produce disorder

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Incitement: Key Elements • • Intent Imminence (about to occur) Likelihood However: Advocacy of a (violent) doctrine is protected unless: ØIt is inciting or producing imminent lawless action and is likely to incite or produce such action. ØOne such case: “how-to” book for hit killing

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Free Speech is Regulated • By the Supreme Court Regarding: ØCore political speech (Meyer v. Grant) ØIn nonpublic forums, courts apply a lower level of scrutiny, allowing the government to limit core political speech if the limitation is reasonable and not aimed at silencing the speaker’s viewpoint. Examples of nonpublic forums include household mail boxes, military bases, airport terminals, indoor shopping malls, and most private commercial and residential property. ØSpeech that incites illegal/subversive activity ØBrandenburg v. Ohio; Hess v. Indiana ØDisallow when: “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. ”

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Free Speech is Regulated ØFighting words Ø The utterance of fighting words is not protected by the free speech protections of the First Amendment of the U. S. Constitution (Chaplinsky v. New Hampshire, 1942: to a town marshal “you are a damned fascist” – and was arrested) ØObscenity and pornography Ø the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. (1) the average person, applying contemporary community standards, would find that the material’s predominant theme appeals to a “prurient” interest; (2) the material depicts or describes sexual activity in a “patently offensive” manner; and (3) the material lacks, when taken as a whole, serious literary, artistic, political or scientific value. Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2 d 419 (1973).

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Free Speech is Regulated ØSymbolic speech (i. e. , demonstration) ØIn restricting symbolic speech, the government must be regulating conduct, not expression. The prohibition must be directed at the conduct component, not the speech component of the prohibited activity. ØCommercial speech ØThe Supreme Court has ruled that the government has a “substantial interest” in regulating false, deceptive, and misleading advertisements. However, the Supreme Court had not been asked to consider whether the First Amendment allows the government to regulate the distribution of unwanted advertisements.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Free Speech is Regulated ØStudent speech ØIf a free speech case involves a school sponsored activity, school officials are given wide latitude. ØInstitutions of higher education have generally been held to have less control over student free speech rights than elementary and high school teachers and administrators. In part, this position reflects the fact that college students are adults. However, there have still been areas of controversy in post-secondary student free speech rights, generally having to do with funding issues. The latest area of controversy has been with so-called “hate codes, ” which ban certain types of speech considered offensive from college campuses.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Hate Speech • Speech perceived to disparage a person or group of people based on their social or ethnic group, such as race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, ideology, social class, occupation, appearance, mental capacity and any other distinction that might be considered by some as a liability.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Hate Speech – Cont. • The first amendment prohibits government from regulating free speech except for defamation or incitement to riot. • Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if threat is imminent. • Public university “speech codes” have not fared well in court where they are frequently overturned as violations of first amendment.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Incitement & Genocide • International Criminal Tribunal for Rwanda • Tried 3 media executives for incitement 1. Found guilty (in 2003) because: 1. “. . . the defendants’ crime was to spread petrol throughout the country little by little, so that one day [they] would be able to set fire to the whole country” 2. Each modern case of genocide has been preceded by a propaganda campaign transmitted via mass media and directed by a handful of political leaders.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Incitement & Genocide • When hate speech incites, it does so because the listener is receptive to such speech. • Incitement is critical causal element in genocide as people do not spontaneously rise up to kill en mass. • Before genocide can occur, a large number of people must come to condone killing. • Julius Streicher first to be convicted for incitement to genocide (Nuremberg).

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University International Law & Genocide • Incitement codified as “direct and public incitement to genocide. ” Ø DIRECT remains undefined • Rwanda verdict stated: Ø “direct and public” incitement need not refer exclusively to a speaker haranguing his listeners in person. Incitement might be transmitted “through speeches, shouting or threats uttered in public places or at public gatherings, or though the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication. ”

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Limitation of First Amendment • Virulent and even violent speech is protected in the U. S. in the BELIEF that the public discourse will contain it, that “bad” speech will eventually be mitigated by “good” speech. • Even if acceptable for the U. S. , there is no such market place of ideas in places such as Iran (where anti-Semitic propaganda started with the Shah) and similar societies. • Imminent danger is problematic.

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Broken Windows v. Applying Broken Windows to the word-deed axis v. The difference between (broken) windows and (inciting) narrative v. Showing the continuum of incitement-violence: v. Hate (“Jews educate children to hate, kill Arabs”) v. Vilification (“cancer, ” “dead fish, ” “stinking corpse”) v. Dehumanization (“sons of apes and pigs”) v. Incitement (“Israel will be wiped out”) v. Violence/genocide (terrorism, war, nuclear threat)

Conclusion © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University • The justice system has limitations: Øslow Øafter the fact Øsubject to time/space interpretations (“imminent”) Ølikely unable to prevent • Police do not need permission from murderers to arrest them. Free world should not seek permission to stop those inciting genocide from within or from without. • How to do so proactively? Effectively?

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University Questions/Issues 1. What can be done in the legislative and jurisprudence arenas to address the incitement crime/punishment? 2. What is the role of law in combating the narrative that supports terrorism and genocide? 3. What Can Judges do?

Thank You © Dr. Robert R. Friedmann Director, GILEE Program Georgia State University

© Dr. Robert R. Friedmann Director, GILEE Program Georgia State University CONTACT INFORMATION • Dr. Robert R. Friedmann Ø Director – GILEE Ø Georgia State University Ø 404 -413 -1025 Ø friedmann@gsu. edu