Antisemitic flyers are hateful but likely protected speech, experts say   

Nassau government officials denounced the antisemitic flyers tossed onto Long Islanders’ driveways and lawns in Rockville Centre, Oceanside and Long Beach, and the police commissioner pledged the arrest of whoever is to blame.

But experts on free speech law say that the First Amendment almost certainly protects the right to distribute the flyers — no matter how hateful or vile the content.

One version of the flyers, which were distributed in the last weeks of July, echoes the smears that Hitler expressly cited in the run-up to the Holocaust.

"I mean, this is the usual Nazi garbage,” said lawyer David Goldberger, an emeritus professor at Ohio State’s law school. Goldberger, who specializes in First Amendment defense cases, represented neo-Nazis who won a landmark 1977 U.S. Supreme Court case affirming their right to demonstrate in Skokie, an Illinois suburb that was half Jewish and populated by hundreds of Holocaust survivors.

Goldberger said that because the Nassau flyers contain no direct threats, no imminent calls to violence and no relentless pattern of harassment against a specific person, the material is legal to distribute.

“It’s hate speech that is protected by the First Amendment,” Goldberger said.

The flyers, which were weighed down with bags of rice and reached neighborhoods with large Jewish populations, include references to the Protocols of the Elders of Zion, the fabricated text from 1903 that is the most widely distributed antisemitic tract of modern times. One of the flyers lists what it claims is "The Jew's Plan for World Domination."

At a news conference on July 25, Police Commissioner Patrick Ryder said that on July 21, the first of what would grow to be about 30 Nassau residents began receiving the flyers. Nassau County Executive Bruce Blakeman credited the flyers to a national group called the Goyim Defense League, a loose network of antisemitic conspiracy theorists and internet trolls.

Blakeman held up one of the flyers. “This is not freedom of speech," he said. "This communication is meant to alarm people, to harass people and to create an atmosphere of terror."

Ryder said that police have reviewed doorbell video and identified a Prius sedan from which the flyers were apparently tossed.

“We’re gonna do everything we can to make sure that there’s an arrest at the end of the day,” he said.

There were two other flyers in addition to the Elders of Zion one, according to Blakeman spokesman Christopher Boyle: one accused Jews of controlling the media, and the other said Jews control the Biden administration. None of the flyers contained threats.

Brendan Brosh, a spokesman for Nassau District Attorney Anne Donnelly, said in an email July 28 that her office’s Hate Crimes Unit is assisting the police in the investigation. He declined to answer questions about the First Amendment implications of the flyers but said he was unaware of any similar cases the office had previously prosecuted. Det. Lt. Richard LeBrun, a police spokesman, said detectives continue to investigate, but he gave no further details.

Voicemail messages left by Newsday at phone numbers that public records list for men linked with the group named on the flyers were not returned.

'No hate-speech exception to the First Amendment'

Eugene Volokh, a UCLA law professor and First Amendment expert, said that “you can’t suppress speech because it’s antisemitic or hateful or whatever else. Now, if it actually involves true threats of violence, like ‘we will kill you [and a specific group]' … then, yeah, sure, absolutely, it would be punishable.”

American free speech rights are so strong that even advocacy of illegal conduct is protected, so long as it doesn’t involve imminent action, such as standing in front of a house of worship or a police station and telling a crowd to start a fire, Volokh said.

At the news conference with Blakeman, Ryder said that whoever is responsible for the flyers might be charged with harassment or hate crimes.

Several days earlier, at a news conference with Hempstead Town Supervisor Don Clavin, Rockville Centre police Commissioner James Vafeades also said his department was looking into potential charges such as harassment, aggravated harassment and hate crimes.

Volokh was skeptical.

“You can’t punish public speech that’s racist or antisemitic or whatever by just labeling it 'harassment,'" Volokh said. "The court has made it very clear that there is no hate-speech exception to the First Amendment."

Blakeman suggested at the news conference that the flyers are invalid free speech because they were distributed anonymously at night.

Volokh noted that anonymous speech has been protected by Supreme Court precedent since 1960, when the justices overturned an anti-anonymity ordinance in Los Angeles being enforced against a Black man whose handbills called for boycotts of allegedly racist merchants.

And although the Supreme Court in 2003 ruled that the government can criminalize cross-burning — to the extent an intent to intimidate a person or specific group with violence is proved — the flyers in Nassau are unlikely threatening anyone under the law, said Alexander Tsesis, a visiting professor at George Washington University Law School who has written about inflammatory hate speech and incitement.

For the flyers to be criminal, a prosecutor would have to prove that whoever put the flyers on the property wanted to make a serious expression of intent to commit an act of unlawful violence, Tsesis said. The court's 2003 ruling explicitly said that absent that intent, cross burning is not beyond constitutional protection, he said.

As for the flyers, Tsesis said, "this looks like an abstract articulation of hatred rather than a serious threat."

And if they were truly distributed randomly, the flyers would not be targeting an individual or group of individuals, he said.

The footer of the flyers notes: “THESE FLYERS WERE DISTRIBUTED RANDOMLY.”

An underlying crime?

New York’s harassment statutes criminalize a range of conduct, including threats of physical violence or harm to property as well as annoying telephone calls that serve no legitimate purpose, but the statutes’ “boundary has to stop short of speech protected under the First Amendment," said Bruce Barket, a Garden City-based lawyer.

For conduct to qualify as a hate crime, there needs to be an underlying crime — such as scrawling graffiti, physically attacking somebody or worse — plus evidence of prejudice targeted at a legally protected group; with the flyers, there is no underlying crime, Tsesis said.

But why not let the police stop hateful flyers from alarming a community?

“That opens the door to all kinds of government censorship,” Goldberger said, adding: “Offensiveness is a subjective matter.”

The New York Civil Liberties Union issued a statement July 28 from its Nassau chapter director, Susan Gottehrer: “This bigoted attack on Jewish community members in Nassau County is shameful. While hateful rhetoric like this constitutes protected speech, all people deserve to feel safe in their homes and there's no place for antisemitism in New York."

The flyers are “antisemitic, demeaning and awful,” and would be criminal in Canada, England and most of the world’s other democracies, but not in America, said the First Amendment lawyer Floyd Abrams.

And while “people own the property they live on, and they have the right not to have it encumbered by unwanted material thrown on it,” whoever distributed the flyers “can’t be prosecuted because of what is contained, ideologically, in the material,” he said.

One school of thought is that a property owner could place a sign banning all leafleting, and the sign would then allow criminal charges against leafleteers for trespass, but courts have been wary toward such an approach, Goldberger said.

“It's an open question whether, with that sign, the leaflets would constitute trespass," he said.

Nationwide, there were 283 reported incidents in 2020 of propaganda distribution that included antisemitic language or targeted Jewish institutions, a 68% increase from the prior year, according to Shellie Burgman, a spokeswoman for the Anti-Defamation League.

This year, antisemitic flyers, leaflets and signs have been found in Philadelphia, Beverly Hills, Miami Beach, Harris County, Texas, and beyond. In many of those incidents, the police have vowed to investigate. Most news accounts don’t say whether anyone was charged.

Goldberger said prosecutions for such flyers are rare but not unheard of — and typically happen because trial courts ignore established First Amendment principles: “Judges are so offended by what they’re reading in the context that they just say, ‘Oh, what the hell. Let’s ignore the existing, the modern case law, and let’s put ’em away.’”

In early July, in upstate Hornell, three people were arrested on 115 counts each (one for each pamphlet) and charged with aggravated harassment over propaganda with swastikas and racial slurs left at a synagogue, a Black church and elsewhere. That case is pending.

And in March, in the Sacramento area, a man was sentenced to 180 days in jail for taping antisemitic leaflets on a messianic synagogue menorah and placing flyers with a Nazi swastika at an elementary school. He was convicted of a felony of desecrating a religious symbol and a misdemeanor of terrorism by symbol.

In February, flyers similar to the ones in Nassau were found in the Alamo Heights, Texas, area, apparently from the same source as in Nassau. According to the San Antonio Express-News, a deputy police chief ruled out a criminal case, because there were no “threats or intimidation.”

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.