MIAMI BEACH, Fla. – A woman’s antisemitic statement over the weekend, telling a group of pro-Israel demonstrators on South Beach in part that “Hitler should have f---ing finished the job,” shocked many in South Florida.
It came as pro-Palestinian demonstrators called for a ceasefire amid the ongoing war in Gaza.
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In the video, the woman is heard yelling, “You guys are taking all our f---ing money, you bastards. Hitler should’ve f---ing finished the job. He knew what the f--- he was doing.”
But a legal analyst notes that the woman’s hurtful invectives, while distasteful, are protected by the U.S. Constitution.
David Weinstein, who called the woman’s remarks offensive as an individual, said they fall under what’s allowed under the First Amendment.
“As much as we don’t like it, even hateful speech is protected by the First Amendment because when they wrote our constitution, the founding fathers wanted people to be able to voice their opinions,” he said.
The U.S. Supreme Court ruled on hate speech in the case Snyder v. Phelps.
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain,” the decision read. “On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
When does hate speech cross the line?
The Supreme Court, in Brandenburg v. Ohio established a two-pronged test for when hate speech becomes a crime. It loses protection if directed at and “likely to incite or produce imminent lawless action.”
“We have heard a lot of talk about this recently in the context of the riots at the Capitol,” Weinstein said. “Did the words that people used cause others to incite and create behavior that was imminently dangerous to other people?”
Miami Beach police said, “Zero arrests and noteworthy incidents were made during the demonstration deployment.”
“No arrests were made because nobody behaved in a way that is imminently dangerous to others,” Weinstein said. “As much as we don’t like what she said, it didn’t cross the line, so it is still protected speech under the First Amendment.”
He added, “Now there may be additional facts that come out, additional information that the police gather or collect from other people that may change the way this story unfolds, but as of right now, based on the facts that I know and that we know, it doesn’t appear to, as of yet, crossed the line, despite the fact that it is hateful speech and offensive to a large number of people.”
The painful remarks come following the Anti-Defamation League’s tracking of a troubling historic trend in upticks of antisemitic incidents.
The Council on American-Islamic Relations also reports an “unprecedented” increase in complaints of Islamophobia and anti-Arab bias since the escalation of violence in Israel and Palestine.
“You are dealing with a private citizen out in public expressing her opinion,” Weinstein said.
But, Weinstein adds, the First Amendment doesn’t cover a private employer, which may have its own speech policy for employees.
“We don’t know who she is employed by and whether her employer is going to take action against her, that is their right as an employer,” he said. “This is a boiling point for the entire country and unfortunately politics is involved, so in terms of where this might go from here, your guess is as good as mine.”
RELATED: How should you talk to your kids about the war in Israel? Expert weighs in
In an October interview discussing how to talk to children about the war, Dr. Daniel Bober, the chief of psychiatry at Memorial Regional Hospital, cautioned against spreading “stigma.”
“I would also say spread compassion not stigma,” he said. “We don’t want to stigmatize an entire ethnicity or group of people. We need to be very cautious about that because sometimes that can be the start of how discrimination begins.”