Noted attorney Alan Dershowitz said on Wednesday that recent attacks on Jews could lead the Supreme Court to weaken a legal standard protecting free speech.
Mohamed Sabry Soliman allegedly used Molotov cocktails and a jury-rigged flamethrower when he attacked a Sunday event in Boulder, Colorado, supporting hostages taken during the Oct. 7, 2023, attack by the radical Islamic terrorist group Hamas that killed over 1,200 people in Israel.
Dershowitz said that calls to “globalize” intifada could result in the high court revisiting the 1969 case of Brandenburg v. Ohio if the right circumstances arose.
“Here’s my predictive view based on my expertise as a constitutional lawyer and as an appellate lawyer,” Dershowitz said on “The Dershow.” “I think if the right case came before the Supreme Court, they would cut back a little bit on Brandenburg and would reduce the imminency requirement, to something a little bit different. There had been a prior formulation by Judge Learned Hand which gave more permissiveness to the state to ban a dangerous freedom of speech how dangerous the speech was discounted by the likelihood of it not occurring, a kind of balancing, balancing test, but it didn’t include the concept of imminence.”
Dershowitz recounted a case in England where a person who shouted “give it to him” was convicted of inciting a mentally ill person to shoot a police officer, since the court interpreted the statement as urging the person to fire the gun. Dershowitz said experience with attacks with a pro-Hamas motivation could lead the high court to adjust the requirement.
“Incitement doesn’t have to actually lead to lawlessness, it’s enough if the incitement is likely to lead to imminent lawlessness, but the lawlessness has to be imminent and it is the imminence requirements that I suspect the courts will change and why? Because the law changes with experience, as Oliver Wendell Holmes, once said, life and law is not logic, it’s experience and our experience now is that calls for violence against Jews in the context of what’s going on now has produced violence,” Dershowitz said. “I have no doubt that the killing of the two young people in Washington ,D.C., was influenced by calls for global intifada. I have no doubt that the burning of, I don’t know, ten or 11 Jews, including a Holocaust survivor, in Boulder, Colorado, was influenced by the calls for a global intifada.”
Pro-Hamas demonstrations since the attack by Hamas have seen anti-Israel protesters occupy buildings, chant a slogan that has connotations of wiping out Israel and block Jewish students from parts of campus.
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“There’s going to be a change, that’s my prediction, and it may be I’m not going to be around to be here when that prediction takes hold, but I guarantee you that in the next quarter of a century, whatever the Supreme Court is, it will not allow incitement to violence which is very likely to produce violence, even certain to produce violence, as long as that violence is not imminent, I think the imminency requirement will be weakened by the United States Supreme Court,” Dershowitz concluded.
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First published by the Daily Caller News Foundation.
