If the allegations are true, Diego Chaar is a horrible anti-Semitic person. He is accused to yelling Allahu akbar outside of a synagogue and saying that he would cut the heads off the congregants. Yet, the case presents a potential free speech issue after Chaar is facing charges of stalking and assault.
The incident occurred outside of the Ohev Shalom Synagogue. Two members of the congregation said that they were standing outside the Miami Beach synagogue when Chaar and another man walked by and made the statements. They were followed and Chaar was later arrested.
Chaar converted to Islam two years ago while in prison and police say that he told them “I want to take them to paradise. I don’t want them to burn in hell for the rest of eternity. I feel like that they’re worshipping right now is nothing, it’s fake. It don’t exist, in my opinion.”
Rabbi Phineas Webberman not only head the congregation but is also a police chaplain. He insisted “That’s called assault. Threatening to kill. His attitude was that this is his religious responsibility of carrying out killing infidels.”
The question that is likely to be raised is whether there is true or whether this is a case of free speech. The Florida law is actually written quite broadly:
A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
That however can produce a constitutional conflict if a person’s “harassment” is to yell religious or political views, even violent speech.
Weberman said that “A group of young men were outside in the front area, the front lawn, sitting on the benches, and they were approached by somebody who was screaming, ‘Allahu akbar. I’m gonna cut your heads off.’ He repeated that, and they went and called the police. He used the term that the terrorists used when they killed the infidels, and they threatened to cut their heads off.”
Violent speech is protected under the First Amendment. The Supreme Court has repeatedly held that citizens cannot be prosecuted for their exercise of free speech, even in the case of so-called “violent speech.” See Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969) (per curiam); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928–29 (1982). The only exception to this rule is found in extreme cases where the speech is akin to “one who falsely shouts fire in a crowded theatre.” Brandenburg, 395 U.S. at 456 (Douglas, J., concurring). In such cases, the Court has stressed that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447. The government must show not only that the defendant both advocated imminent violence, but also that such advocacy was likely to incite or produce such a response. Hess v. Indiana, 414 U.S. 105, 108–109 (1973).
The question is whether this statement passing by a synagogue would satisfy such a high standard. Chaar insists that he never said that he wanted to cut off heads, but even if he did, there would still be a free speech issue in the case.
The statements allegedly made by Chaar are despicable and reprehensible. However, can such comments be criminalized if they were made? One possible angle for prosecutors would be to argue that the comments were directed at two men outside of the synagogue. However, the facts suggest that Chaar did not know the men and was walking by at the time.
What do you think?