The First Amendment right to free speech has never been absolute, just as the specificity of its limits have never been perfectly clear. The proliferation of the internet and social media have further muddled where the lines should be drawn between freedom of speech and when it should be constrained because of its potential for harm. The issue is ripe, as the hatred promoted on certain sites can lead to violence, as may have been the case with the accused murderer of 11 Jews at the Tree of Life building who had been active on such platforms.
A panel of experts, including Pennsylvania Attorney General Josh Shapiro and Rabbi Jeffrey Myers of Tree of Life*Or L’Simcha, parsed out the difficulties in navigating freedom of speech in the 21st century at the Heinz History Center on Jan. 8. The program, dubbed “Are There Limits to Free Speech?” was sponsored by the Pittsburgh Post-Gazette and Highmark and moderated by Keith Burris, executive editor of the Post-Gazette.
The 90-minute discussion before an audience of hundreds of interested community members had the panelists questioning whether our rapidly changing society should reinterpret where limits of speech should be set, as well as what everyday citizens might do to tamp down on the pervasive incendiary rhetoric polluting our atmosphere.
Calling himself a “First Amendment fundamentalist,” Duquesne University School of Law Professor Bruce Ledewitz noted three categories of speech under the First Amendment that could raise concerns.
“One is when you are upset because of something I believe — and that’s a circumstance in which there is really nothing that can be done,” he explained.
The second category includes speech that is intended to harm, intimidate or harass, which is not protected under the First Amendment, according to the professor. Pursuant to a Supreme Court decision, this type of non-protected speech would include such acts as a cross-burning intended to intimidate.
The third category, said Ledewitz, is encouraging another person “to commit violence or other serious crimes.” Part of the test to determine if speech is protected is whether it is directed to causing “imminent lawless action,” and is likely to indeed “produce such action,” according to the 1969 U.S. Supreme Court ruling in Brandenburg v. Ohio.
The prominence of social media, Ledewitz speculated, may have altered what types of speech should not be protected under Brandenburg.
“What used to be just talking is now essentially planning violence, as speedily as circumstances permit,” he said. “And what used to be protected probably is not to be protected anymore, in all circumstances.”
Wasi Mohammed, Pittsburgh director of community entrepreneurship at Forward Cities and the former executive director of the Islamic Center of Pittsburgh, noted that his opinion on limits of speech has evolved over time. While he was raised with the mentality that free speech is “sacred,” his views have become more nuanced.
As “the darkest corners of the internet are manifesting in physical violence almost daily,” targeting marginalized communities, Mohammed said that he now weighs the First Amendment freedom for hateful speech against the rights of others protected by such laws as “the 14th Amendment guarantee of equal protection for everybody.”
Shapiro highlighted the responsibility of ordinary citizens to “move this dialogue forward.” He implored the community to “yes, remember the horrors of what happened in Rabbi Myers’ shul, but to also remember what happened two hours later at the corner of Forbes and Murray when we gathered together — people from all walks of life committed to working together to break down the hate, and bring up the love and bring people together.”
While Shapiro noted that he works to “find the line between protecting ideas and stopping certain acts,” the real work that needs to be done “to deal with hate speech in our community is your responsibility, on your timelines and in our town halls, to make sure that we’re bringing down the temperature. And that we are speaking to one another with respect, and with that feeling of love that we had that evening, standing outside in that misty weather.”
Indifference is not an option, said Meagan Cahill, senior policy researcher at the RAND Corporation.
“We can’t just say, ‘We’re not Jewish. It’s not really affecting me,’ or ‘I’m not Muslim. It’s not affecting me,’” she said. “We all have to step up, and we all have to say that it’s not acceptable. Now, I don’t have a great solution for how we do that in these times, like on 4chan and Reddit and places where it’s that strong, tight community of whatever kind of terrorist groups might be posting on there. There’s not a ready good answer for that. But I think at the very least, we all have to say we’re going to be active, we’re going to actually be proactive….We have to change some of the statutes but we need to be doing the prevention work as well. I think if we’re proactive, if family members notice that something’s going on, if people notice someone is posting things online, there are new tools, especially for law enforcement, that they might be able to use, to remove weapons temporarily.”
While censorship may not always be a viable option, moral censure can be, emphasized Ruth Ann Dailey, a columnist for the Post-Gazette for almost 20 years.
The recent rash of anti-Semitic attacks in the New York area reminded Dailey of the Crown Heights riots and murders in 1991, after a black child, Gavin Cato, was accidentally struck and killed by a car in the motorcade of the Lubavitcher Rebbe, Menachem Mendel Schneerson. Following the accident, several Jews were attacked on the street by black youths, and a visiting Jewish student from Australia was killed. Two weeks later, a non-Jewish man was killed by a group of black men, who might have mistaken their target as a Jew.
The Rev. Al Sharpton, in his eulogy at Cato’s funeral, referred to “diamond dealers” and made other provocative remarks about Jews, some say stoking the violence.
Sharpton has reportedly expressed regret privately to Jewish leaders for his comments, and in May 2019 conceded he could have “done more to heal rather than harm” at the Reform movement’s Religious Action Center conference.
In researching the Crown Heights riots of 1991 in relation to current events, Dailey recalled that a banner was displayed at Cato’s funeral that said, “Hitler did not do the job.”
“People who are still active in modern politics spoke at that funeral,” noted Dailey, adding that “moral censure” could be appropriate for those “who participated in that room, who stood and spoke at that funeral and didn’t protest.”
“I think there might be a responsibility to hold the people who are still out there today active and prospering in American society, to see if we can we can hold them responsible,” she said. “That would be an example of moral censure.”
Dailey noted that in the ensuing years following the Crown Heights riots, “some of the leaders of the black community and the Jewish community reached out and spent years of bridge building. As recently as a few years ago, you would see regular coverage of how pleased they were that that had helped bring peace, civil rest.
And then here suddenly, again, we have another outburst of these horrible acts of violence. And I do think that is greatly increased by social media and until our laws catch up, as Megan (Cahill) said, we have to be manning the barrier there of appropriate civil discourse.”
Myers implored the community to make connections across ethnicities and religions.
“We don’t know our neighbors,” he said. “I daresay most of the people in this room don’t know anything that the Pillars of Islam. Most of you, unless you are Jewish, may not know the tenets of Judaism — even if you’re Jewish you might not know the tenets of Judaism. What’s the difference between a Protestant and a Roman Catholic?
“So if we get to the point of legislation, it’s too late, because we’ve missed the boat on education,” he continued. “It’s about education. If you understand your neighbor, you have to love them. If you understand your neighbor, you can appreciate who they are, their origins, where they come from. So as adults, we need to find and create opportunities to get to know our neighbors, both from an educational, and social and cultural point of view.” pjc
Toby Tabachnick can be reached at