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):
 "Words are deeds"
• John L. Austin (1955) in How to Do Things With
Words:
 "The issuing of an utterance is the performing of an action”
• Talmud - Jewish Law and Ethics (200 C.E.)
 “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)
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Consensual
Existence
unquestioned
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:
 Non-Violence (Narrative)
 Hate
 Vilification
 De-Humanization
 Incitement
 Danger: Legitimizing hate-based ideology
 Violence (Action)
 Terrorism  War
 (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
•Terrorist-initiated
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Is there a pattern?
• 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
McDonald'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
 Kuwaiti daily Al-Qabas: The Zionist Cockroach
 Syrian government daily Al-Thawra: Plan for world
domination set out in (PEZ) is being implemented today
 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
 Feberury 25: press conference with Assad in Damascus
 "A Middle East without Zionism is a divine promise...
 February 23: speech in Birjand in eastern Iran
 “if Israel makes one more mistake, this is the end of this regime”
 February 18: phone conversation with Nassralah
 “an end will be put to Israel and the region will be delivered from its evil”
 February 18: conversation, with Lebanese President Suleiman
 “the matter [of Israel] will be ended”
 February 10: phone conversation with Syrian President Assad
 “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
 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.
 "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:
Israel threatening the Al-Aqsa Mosque
(PA TV - July 4, 2010)
© 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.”
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
U.K./U.S.
• 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. Islam will reach these countries.”
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
U.S./World
• 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."
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
U.S./World
• 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."
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Iranian threat
• 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 Kos
April 5, 2007
Zionism was and remains a racist ideology
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Progressive blog Daily Kos
May 13, 2008
Eulogy before the Inevitability of SelfDestruction: The Decline and Death of Israel
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Indymedia – December 24, 2008
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Published by Indymedia on Holocaust
Remembrance Day in 2009
© 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 Jewish Power
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
First Amendment
• Brandenburg v. Ohio (1969):
 Vengeance against: Jews, Blacks, Government
 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)
 “we’ll take the fucking streets later”
 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:
It is inciting or producing imminent lawless
action and is likely to incite or produce such
action.
One 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:
Core political speech (Meyer v. Grant)
In 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.
Speech that incites illegal/subversive activity
Brandenburg v. Ohio; Hess v. Indiana
Disallow 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
Fighting words
 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)
Obscenity and pornography
 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.2d 419 (1973).
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Free Speech is Regulated
Symbolic speech (i.e., demonstration)
In 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.
Commercial speech
The 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
Student speech
If a free speech case involves a school sponsored activity,
school officials are given wide latitude.
Institutions 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
Found guilty (in 2003) because:
“...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”
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.”
 DIRECT remains undefined
• Rwanda verdict stated:
 “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
Applying Broken Windows to the word-deed axis
The difference between (broken) windows and
(inciting) narrative
Showing the continuum of incitement-violence:
Hate (“Jews educate children to hate, kill Arabs”)
Vilification (“cancer,” “dead fish,” “stinking corpse”)
Dehumanization (“sons of apes and pigs”)
Incitement (“Israel will be wiped out”)
Violence/genocide (terrorism, war, nuclear threat)
Conclusion
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
• The justice system has limitations:
slow
after the fact
subject to time/space interpretations (“imminent”)
likely 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?
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
Thank You
© Dr. Robert R. Friedmann
Director, GILEE Program
Georgia State University
CONTACT INFORMATION
• Dr. Robert R. Friedmann




Director – GILEE
Georgia State University
404-413-1025
friedmann@gsu.edu