In 1917, Charles Schenck, general secretary of the Socialist Party of America in Philadelphia, was arrested with his fellow socialist Elizabeth Baer. Their crime? Mailing printed leaflets urging military-age men to resist conscription during World War I, a criminal offense under the Espionage Act of 1917.
In the notable 1919 Supreme Court case Schenck v. United States, Schenck argued that his arrest violated his First Amendment right to free speech. He lost in a unanimous 9-0 ruling. The decision, authored by Justice Oliver Wendell Holmes Jr., claimed that Schenck was not protected by the First Amendment in this case because Schenck’s “words” were “used in such circumstances and are of such a nature as to create a clear and present danger.”
In other words, while Schenck might have gotten away with such leaflets in, say, 1912, wartime changed the circumstances on the ground. As Holmes famously wrote at the time, “The most stringent protection of free speech would not protect a person falsely shouting fire in a theater and causing a panic.”
It is not unreasonable to suggest that such a precedent can be applied to the “clear and present danger” facing Jewish residents of New York City today. Under the leadership of Mayor Zohran Mamdani, the city’s Jews are facing an increasingly dire situation.
Since Mamdani took office, the already disproportionate attacks against the city’s Jews, who comprise only 10% of its population, became even more disproportionate. Last month, New York City data showed that anti-Jewish hate crimes had increased by 8.5%. Jewish residents were the targets of nearly 70% of all hate crimes, a 53.3% increase compared to the same period last year.
Mamdani’s antisemitic rhetoric and policies, which have accumulated in the months since he took office, reached new heights with a recent blood libel video, in which he lamented his legal inability to arrest Israeli Prime Minister Benjamin Netanyahu. He spread vicious lies about a nonexistent “genocide” in Gaza following the Hamas-led terrorist attacks in southern Israel on Oct. 7, 2023, and has urged protests against Israel’s leader when he arrives for the meeting of the U.N. General Assembly in September.
We all know what anti-Israel protests look like. It took the Trump administration months of investigations and threats of financial ruin to quell the violent mobs shouting “from the river to the sea” and “globalize the intifada” across American campuses. It took a buffer zone law protecting houses of worship to prevent riots against Jews at New York City synagogues.
I myself have been the victim of two antisemitic hate crimes since Mamdani became mayor and had to be protected by thousands of police officers just to hear details about an apartment for sale in Jerusalem.
In response to the stabbing of an Orthodox Jewish man the day after the mayor called for protests, the president of the city’s Police Benevolent Association called Mamdani’s promotion of protests at the United Nations a permission slip for “violent agitators” and added that “the mayor’s heated rhetoric could push demonstrations over the edge into chaos.”
If all this is not a “clear and present danger,” I don’t know what is. And too little is being done about it.
The efforts of two prominent and courageous individuals I spoke with prompted me to consider the issue of incitement seriously. Last week, former New York Gov. David Paterson and Dov Hikind, a former New York State Assemblyman and the founder of Americans Against Antisemitism, joined forces to request that the U.S. Justice Department investigate whether Mamdani is violating federal law.
They sent a letter addressed to Attorney General of the United States Todd Blanche expressing deep concern regarding “the sharp rise in antisemitic incidents across New York City and the role that the official rhetoric of Mayor Zohran Mamdani appears to be playing in creating a climate of hostility toward the Jewish community.”
The letter detailed a litany of Mamdani’s antisemitic offenses, including his demonization of the State of Israel and its prime minister, labeling supporters of Israel “monsters,” refusing to condemn calls to “globalize the intifada” and urging New Yorkers to take to the streets in force against Netanyahu.
Paterson and Hikind asked the department to open an investigation into whether the mayor uses his position to “violate federal civil rights statutes … or other applicable provisions governing incitement and the deprivation of rights.”
The Justice Department subsequently asked Mamdani to respond to the allegations, and Hikind met with Assistant Attorney General Harmeet Dhillon, who heads the Justice Department’s Civil Rights Division.
This is heartening because while all American citizens are blessed with the gift of protected speech, we are also blessed with the inalienable right to life and liberty. When the mayor of a city uses his bully pulpit to threaten the safety of the city’s Jewish community, then he should be held accountable.
Many people have called on Mamdani to tone down his rhetoric, but his rhetoric has already inflamed a combustible atmosphere. He doesn’t need to be toned down; he needs to be shut down. If New York City is a theater, the fire is already burning.
