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Saturday, December 09, 2023

The Genocide Convention and "Incitement"

It may be worth adding to the discussion that the U.S. Code prohibits genocide (18 U.S.C. 1091(a)), and punishes anyone who "directly and publicly incites" that offense with up to five years in prison. (18 U.S.C. 1091(c)). The statute follows U.S. ratification of the Genocide Convention by the Senate under President Reagan; the ratification contained several reservations which have been criticized as unduly restricting the scope of the prohibition. One explicit reservation was that the Senate, then under Republican control, made clear that abstract advocacy of genocide was protected by the First Amendment: "The criminal laws of many countries ban speech related to crimes such as genocide on the theory that this deters the acts themselves. The framers of our Constitution, on the other hand, were of a different view." International Convention on the Prevention and Punishment of the Crime of Genocide, S. Exec. Rept. 99-2 (1985). Kenneth Marcus, whose credentials fighting antisemitism as an academic and public official are unimpeachable, wrote in his remarkable paper on the techniques of inciting genocide Accusation in a Mirror, "most importantly for present purposes, actionable statements must be uttered in a sufficiently direct manner. The Genocide Convention and related authorities do not prohibit casual or indirect utterances, nor do they provide a general prohibition on hate speech." Whether U.S. law is wise in protecting exhortations to genocide which other countries ban is a matter which is subject to reasonable debate.  In a world which has for decades used political dog whistles to great effect, it is also worth discussing whether particular indirect statements are actually intentional incitements.

But Congress has no standing to point the finger at the Ivy Leagues. Congress writes the laws, and if they believe the First Amendment does not protect particular speech, that certain utterances promote genocide, and that such speech should be punished, they need only pass a statute, instead of lashing out at others for failing to do precisely what they have chosen not to do (or cannot do, or do not actually believe should be done).

Kenneth L. Marcus, Accusation in A Mirror, 43 Loy. U. Chi. L.J. 357, 385 (2012)

Posted by Jack Chin on December 9, 2023 at 11:11 PM | Permalink


“...context matters...”

Even if one were to make the argument, “context matters”, in this context, calling for the genocide of Jews, during the deadly, heinous mutilation, and destruction of innocent Jewish Life, as if Jewish Life does not matter, IS the context, so why not give propaganda it’s due, to claim that Academic Freedom is the freedom to call heinous evil acts Good, is a lie from the start, and that would be the only thing Academic about such propaganda.

“Salvation Is Of The Jews, From The Father, Through The Son, In The Unity Of The Holy Ghost (Filioque).

Posted by: N.D. | Dec 19, 2023 1:11:42 PM

How does the U.S. Code address and prohibit genocide, and what are the legal consequences for individuals who engage in "direct and public incitement" of this offense, as outlined in sections 18 U.S.C. 1091(a) and 18 U.S.C. 1091(c)? regard Telkom University

Posted by: Teknik Telekomunikasi | Dec 18, 2023 3:31:28 AM


Elizabeth Magill was forced to resign as President of UPenn because her answers to questions at a congressional hearing - although clearly correct but far from artful - were widely misunderstood, especially by people who don't know much about free speech or just don't care, says public interest law professor John Banzhaf.

REP. ELISE STEFANIK (R-NY): Ms. Magill, at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct -- yes or no?
LIZ MAGILL, PRESIDENT, UNIVERSITY OF PENNSYLVANIA: If the speech turns into conduct it can be harassment -- yes.
STEFANIK: I am asking specifically calling for the genocide of Jews -- does that constitute bullying and harassment?
MAGILL: If it is directed and severely pervasive, it is harassment.
STEFANIK: So the answer is yes?
MAGILL: It is a context-dependent decision.

But, says Prof Banzhaf, who has frequently confronted hostile questioners when testifying before congressional committees, and who has defended free speech at his own George Washington University and on other campuses, here's how Magill should have responded:

STEFANIK: Ms. Magill, at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct -- yes or no?
MAGILL: As you should know, that's an unfair loaded "when-did-you-stop-beating-your-wife?" gotcha-type question which can't be answered with a simple yes or no!

What Magill and the presidents of Harvard and MIT said at the congressional hearing was completely correct as a matter of law, says Banzhaf, and he's far from alone in this conclusion.

Responding directly to this testimony, law professor Eugene Volokh wrote very bluntly: "There's no 'advocacy of genocide' exception to the First Amendment, or to the contractual promises of student free speech that many private universities rightly implement."

The latter portion of his legal analysis refers to the fact that while the U.S. Constitution does not directly limit non-governmental actors such as private universities, most have made legally-binding commitments to guarantee freedom of speech to their students in accordance with Supreme Court's and other courts' First Amendment rulings. Professor Volokh further explained that "the difference between prohibited harassment and protected speech is often the difference between 'one-to-one speech' and 'one-to-many speech.'

In other words, context matters.

Also, as law professor Howard Wasserman has explained, "Much antisemitic speech (as with most hate speech) is constitutionally protected. Horrible and unnerving, but constitutionally protected. It takes a lot for speech to cross the line into harassment, incitement, fighting words, or true threats. Much of what we have seen on campuses the past 24 days does not cross (or even come near) that line. . . . And schools cannot punish unauthorized antisemitic tearing or projecting more harshly than other unauthorized tearing or projecting."

New York Times columnist David French. although very critical of all three university presidents, nevertheless admitted: "If Harvard, M.I.T. and Penn had chosen to model their policies after the First Amendment, many of the presidents’ controversial answers would be largely correct. When it comes to prohibiting speech, even the most vile forms of speech, context matters. A lot. For example, surprising though it may be, the First Amendment does largely protect calls for violence. In case after case, the Supreme Court has held that in the absence of an actual, immediate threat — such as an incitement to violence — the government cannot punish a person who advocates violence. And no, there is not even a genocide exception to this rule."

Legal commentator David Lat explained this context issue further and more simply when he wrote: “If I repeatedly send antisemitic emails and texts to a single Jewish student, that is far more likely to constitute harassment than if I set up an antisemitic website available to the entire world.”

And the ACLU takes this very strong position regarding the testimony: “There is no ‘controversial speech’ exception to the First Amendment. The First Amendment and the principles of academic freedom require higher education institutions to safeguard all protected speech — even when that speech is contentious or offensive. In fact, the First Amendment exists to protect exactly this kind of political expression. Therefore, phrases like ‘from the river to the sea,’ ‘no ceasefire,’ ‘make America great again,’ and ‘no justice, no peace’ are protected. The First Amendment 'protects speech no matter how offensive its content.'”

Very important and directly on point are actual court rulings which seem to be controlling as well as illuminating.

In Brandenburg v. Ohio, at a KKK rally, men in robes and carrying flaming torches and firearms heard a speech which made reference to the possibility of "revengeance" against "N*ggers" and "Jews.” Although many might believe that the speech created a serious and immediate danger, given the content and circumstances, the U.S. Supreme Court held that the speech was constitutionally protected.

And courts, including the Supreme Court, held that a group wearing swastikas on their Nazi-like uniforms could march through Skokie, Illinois, despite the argument that for its many Jewish Holocaust survivors, seeing that symbol would be like being physically attacked, and/or would create reasonable and foreseeable fear of immediate harm.

The judicial decision in David v. Monroe, which some have cited as undercutting the analysis above, and perhaps even to the point of suggesting that a mere statute (Title VI) could somehow override or overcome a protection established by the Constitution itself, very clearly does not apply to a single statement, no matter how vile or objectionable.

In the Supreme Court's own words, harassment (in that case sexual harassment) occurs only then the "persistent sexual advances . . . created an intimidating, hostile, offensive, and abusive school environment." [emphasis added]

Thus, since "persistent" has been defined as "continuing to do something or to try to do something," the narrow exception established in David can't possibly apply to a single statement, no matter how highly objectionable it may be.

"For example, I could shout in the middle of my university's quad, proclaim at a faculty meeting, or write in a newspaper or blog that we should: 'NUKE NORWAY" or "ANNIHILATE AUSTRIA," 'DEMOLISH DENMARK," or “PULVERIZE PROFESSORS, etc., and my speech clearly would be protected by the First Amendment - or, in my situation, by my university's legally binding guarantees to follow it, because none of these obvious polemics creates a "clear and present danger" that anything might in fact happen in the real world, notes Prof Banzhaf.

He adds that, even if some other country was somehow so moved by his words that it totally destroyed any or all of these countries named above, the speech still would not violate any campus rules or the First Amendment because such a result is so implausible that there was obviously no danger that was "clear and present" (even though it might conceivably occur someday).

Also, even assuming for the sake of argument that such statements did create a "clear and present danger," that danger is only to the current residents of those countries, and not to any of the students on campus who might come from Norway or Austria or Denmark and/or have families living there.

However, if a student were to post on the door of a Jewish student a statement praising Intifada, if a crowd followed a Jewish student yelling the same word, or if many students shouted the word at a small group of Jewish students hiding in a university library, it would almost certainly cross the line and become a threat and/or harassment, rather than a mere political argument. Thus it would then violate university policy, and be punishable, but only because of the context.

Similarly, if a burly student wearing a Palestinian scarf jumped in front of a female student on campus and asked if she were Jewish, that probably would constitute a threat - since most people would probably perceive it that way - and thus the conduct in that context can and should be punished.

But if a male student wearing a yamaka approached a female student at a dance, mixer, or other social event on campus and asked exactly the same question, it almost certainly would not be perceived by anyone as a threat and/or as harassment.

Again and again, context matters. In other words, the three presidents were all correct as a matter of current law.

Whether or not a certain highly objectionable antisemitic phrase violates a university principle or policy depends on the context and specific facts; is it mere generalized political rhetoric such as a published statement, or instead is it a more specific (even implied) threat, harassment, etc. to an individual or small identified group (e.g., Jewish students trapped in a university library), etc.

To take an actual example, when some students projected “Free Palestine From The River To The Sea” onto the wall of a building at Banzhaf's George Washington University, it obviously did not create a real risk that anyone would read it and, as a direct result, decide to run out and try to join a conspiracy to make it happen.

And, even if it did somehow create a clear and present danger, it would be a threat only to the people of Israel, not to Jewish or even Israeli students on campus, even if many members of these two groups were outraged as well as upset, and demanded punishment for those involved.

But universities are not helpless to deal with the problem.

Here are three proposals Banzhaf's school, George Washington University, is now considering:
■ Adopt a completely-content-neutral time-place-manner restriction banning all projections of signs onto its buildings, regardless of the message.
■ Prohibit the wearing of masks and other face coverings and concealments at protests except where medically required.
■ Impose immediate even-handed strict no-exceptions punishment for violations of its rules (e.g. occupations, sit ins, clear threats, physical harassment, defacement of property, etc.)

And, as a real world example of what universities can (and perhaps should) do, Banzhaf’s GWU has just decided that it will not longer permit student programming and events in two major open spaces on campus; an even-handed time-place-manner restriction which applies regardless of how administrators may view the motivating cause or the message.

Posted by: LawProf John Banzhaf | Dec 10, 2023 6:25:30 PM

Important issue.

Worth noting, that sometimes, citing directly from holy scriptures, may amount per se, to incitement to genocide indeed. In such cases for example, should be exempted some may argue (or actually argue).

More important:

In the era of internet and social media, this is a hell of different issue. For example, in the context of atrocities in Myanmar, Facebook (at the time) has been sued (in the US, California) for letting hate speech and incitement for genocide and other alleged crimes etc, being spread as hell. All by letting the military there, spread hate speech against the Rohingya. This had been done allegedly, by opening huge amount of fake accounts in Facebook, and the result was horrific it seemed. Facebook admitted by the way, that she was to more than some extent, responsible. Or at least, could do more, or didn't do nothing in fact. One may read the astonishing lawsuit (hereby links).

Or, the taking out of Russian journalist, because of alleged incitement in the context of the war against Ukraine (see link hereby).

In such era of social platform and speed of light spread of hate and fake speeches or accounts, sometimes, results are simply horrific. Despite the holy principle of freedom of speech (mainly in the US, and other states).

Here links:


"US and UK Rohingya refugees sue Facebook alleging dissemination of ‘hateful and dangerous misinformation"



Here in Lawfire, titled:

"Law and the killing of a Russian propagandist: Some Q & A"




Posted by: El roam | Dec 10, 2023 12:48:11 PM

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