In 1917, Charles Schenck, general secretary of the Socialist Party of America in Philadelphia, was arrested with fellow socialist Elizabeth Baer. Their crime? Mailing printed leaflets urging military age men to resist the WWI military draft, a criminal offense under the Espionage Act of 1917.
In the notable 1919 Supreme Court case of Schenck v. United States, Schenck argued that charging him 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 Justice 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 does not seem a stretch to suggest that such a precedent can applied to the “clear and present danger" facing Jewish residents of NYC today. Under the leadership of Mayor Zohran Mamdani, Jews are not existing under the same peaceable circumstances that they lived under before he became mayor. And that is saying a lot, as October 7th, 2023 unleashed a torrent of antisemitic hate across America and especially in NYC.
Since Mayor Mamdani took office, the already disproportionate attacks against NYC Jews, who comprise only 10% of the city’s population, became even more disproportionate. Last month, New York City data shows that anti-Jewish hate crimes increased by 8.5%. Jewish residents were the targets of nearly 70% of all hate crimes, marking a 53.3% increase compared to the same period last year.
The pile up of Mamdani’s antisemitic rhetoric and policies in the months since he took office were topped off by his latest blood libel video lamenting his legal ability to arrest Prime Minister Netanyahu. He spread vicious lies about a non-existent genocide in Gaza and urged protests against Israel’s leader when he arrives for the UN General Assembly.
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 in NYC synagogues.
I myself was the victim of two antisemitic hate crimes since Mamdani became mayor. And I had to be protected by thousands of police officers just to hear details about an apartment for sale in Jerusalem in a local synagogue’s basement.
In response to the stabbing of an Orthodox Jewish man the day after the mayor called for protests, the president of the NYC Police Benevolent Association called Mamdani’s promotion of protests at the United Nations a permission slip for “violent agitators" and 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.
It is the efforts of two prominent and brave individuals who I spoke with that prompted me to seriously consider the idea of incitement. Last week, former Governor David Paterson and former NYS Assemblyman and founder of Americans Against Antisemitism Dov Hikind, joined forces to request that the US Justice Department investigate whether Mamdani is violating federal laws.
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 U.S. 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.
It’s a heartening response because sure, all American citizens are blessed with the gift of protected speech. But we are also blessed with the inalienable right to life and liberty. When the mayor of the largest city uses his bully pulpit to threaten the safety of the city’s Jewish community, he should be held liable.
Many leaders have demanded that Mamdani tone down his rhetoric. But his rhetoric has already inflamed an already combustible atmosphere. The mayor doesn’t need to be toned down; he needs to be shut down.
If NYC is a theater, the fire is already burning.
Sara Lehmann is an award-winning New York based writer. For more of her writings please visit saralehmann.com.