Is This Speech?

These are four recent instances of appalling and hateful behavior. Here, an anti-Semitic mob gathers outside a Los Angeles synagogue, harassing Jews who are going to worship. Violence broke out and is captured in other videos:

This one is described as an anti-Semitic protest outside a Jewish school in Los Angeles. It looks to me like a different incident from the one above, but I am not certain about that:

This one is in a different category. The far-left hate group Code Pink gathered outside Jake Tapper’s house to harass him and his family. You can’t hear it in this video, but Tapper’s kids, who I believe are young, came to a window and played the Star Spangled Banner loudly. Good for them:

Tapper is a liberal, of course, but unlike most liberals he is also patriotic. His excellent book The Outpost is as sympathetic an account of American fighting men as you will find. It sounds like Jake may have passed those values on to his children.

Then there is this, which I wrote about a week ago. Every day, leftists besiege Senator Ted Cruz’s home:

We are obviously long past the point where decent behavior can be expected from leftists. So the question is, do we really need to put up with these outrages?

I yield to no one as a defender of free speech, but I think what we see here falls into the category of harassment, or disturbing the peace. Of course people can say what they want, but can they shout it through a megaphone in front of your house at 7:00 am or 10:00 pm? And we all have a right to peaceably assemble, but in your front yard? Or across the street from a synagogue or school, while screaming abuse at the people who enter those places?

With very limited exceptions, speech cannot be regulated on the basis of content. So if someone wants to write an op-ed or a social media post that says all Jews should go “back” to Germany, or Ted Cruz should not be re-elected, he is free to do that. But restrictions on the time, place and manner of speech have always been allowed. You can say you hate Jews, but, as I learned in law school, you can’t drive a vehicle through a neighborhood in the middle of the night, electronically blaring your sentiments to the neighbors. Likewise with the freedom to assemble. Sure, but where? And when?

If someone stood in the street in a residential neighborhood and played loud music, he would be told to move on and potentially arrested for disturbing the peace. Why is that individual treated with kid gloves because, instead of music, he is shouting anti-Semitic slogans through a bullhorn?

And when people congregate outside a synagogue or school and scream anti-Semitic slurs at Jews who pass by, there is an implicit, and sometimes explicit, threat of violence. Conduct that may, in the natural course, lead to violence is not protected by the First Amendment. The “fighting words” exception is longstanding and may have taken on new relevance in recent years.

If I lived next door to Ted Cruz or Jake Tapper, I would be sorely tempted to fetch a baseball bat and have a civil conversation with the morons who disturb the peace of my neighborhood. But it shouldn’t have to come to that.

It seems to me that in all of the above instances, well-established legal principles should allow the authorities to step in. Disturbing the peace is the most obvious rubric, but I think the threatening nature of the anti-Semitic slurs that are constantly shouted by pro-Hamas demonstrators raise additional issues.

Is it really the law that an innocent citizen walking down the street must be subjected to the screams of a mob, just a few yards away, expressing the wish that that person be dead, perhaps consigned to a gas chamber? Why? Expression of the opinion can’t be prohibited, but expression by a howling, threatening mob, in close proximity to the people being threatened, and to their schools and synagogues? What value is being constitutionally protected here?

One might draw an analogy to laws regulating firearms. It is, of course, illegal to shoot someone. But it is also illegal to brandish a legally-owned firearm. There are many definitions of brandishing, but a typical one might be to “display the weapon in a rude, angry, or threatening manner.” If a howling mob confronts a group of school children, screaming threats in a rude, angry and threatening manner, haven’t they gone long past “speech”? Why should such conduct be exempt from legal sanction?

We live in a perverse environment in which presenting facts and making logical, scientific arguments on such topics as the origin of covid or the efficacy of vaccines, or the authenticity of Hunter Biden’s documents, or the prevalence of voter fraud, are likely to be censored. And yet, screaming into bullhorns in residential neighborhoods and howling invective at children and worshippers is somehow sacrosanct. We need to fundamentally rethink what we mean by “free speech.”

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