On November 19, 200 protesters gathered outside the Park East Synagogue, which was hosting an event by a Jewish organization, Nefesh B’nefesh, dedicated to helping Jews immigrate to Israel. Anti-Israel protesters chanted slogans like “Death to the IDF [the Israeli army]” and “globalize the intifada.”  The latter phrase, “globalize the intifada,” could refer to a non-violent uprising of Palestinians against Israeli policies, occupation, or existence, but is often associated with the Second Intifada, a wave of attacks on Israeli civilians in the early 2000s that left over 1,000 men, women, and children dead.

Perhaps signaling the intent of this “No Settlers on Stolen Land” protest, someone described as an organizer shouted, “[i]t is our duty to make them think twice before holding these events. . . . We need to make them scared! We need to make them scared! We need to make them scared.”  The crowd amplified these statements by repeating them.

New York City Mayor-elect Zohran Mamdani’s spokesperson responded to the event by saying, “[t]he mayor-elect has discouraged the language used at last night’s protest and will continue to do so. He believes every New Yorker should be free to enter a house of worship without intimidation, and that these sacred spaces should not be used to promote activities in violation of international law.”

After examining this potential clash of free speech interests, I have concluded that: (1) the events inside the synagogue were clearly protected by freedom of speech, if not freedom of religion, (2) the anti-Israel protesters may also have been exercising their free speech rights, although they were closer to the line of unprotected incitement or threats, and their blocking of the synagogue entrance is not free speech, and (3) Mayor-elect Mamdani’s initial response undermines the reasons for the First Amendment  — that everyone deserves free speech and freedom to worship, regardless of their views.

First, those inside the Park East synagogue were engaging in First Amendment activity. Communicating about immigration to Israel is protected speech.  The organization, Nefesh B’nefesh, has no ties to any Israeli settlements in the West Bank. The organization helps with the logistics of Jews seeking, for safety or religious reasons, to move to Israel, which is legal under both United States and international law. Nefesh B’nefesh has previously showcased West Bank settlements, but does not assign anyone to a particular area within Israel.

Mamdani’s spokesperson later clarified that, by violations of international law, Mamdani meant promoting illegal settlements in the West Bank, but Nefesh b’Nefesh helps Jews generally move to Israel.

The United States and Israel do not consider West Bank settlements illegal under international law, although most of the world does. However, even advocacy for committing crimes, for example, doing illegal drugs, is still considered free speech unless it rises to the level of incitement, directed at and reasonably likely to produce imminent lawless action. The speech at the synagogue does not meet this incitement standard.

The protesters outside of the event are also permitted to peacefully express their dissatisfaction with the event. Chants of “Death to the IDF,” or “globalize the intifada,” however concerning, are protected speech in some contexts. However, these chants may rise to the level of incitement or true threats. Communications designed to make reasonable people fear imminent harm or incite violence can be punished, as with the organizers of the violent Unite the Right rally, who were charged with traveling across state lines with intent (a) to incite a riot, (b) to organize, promote, encourage, participate in, and carry on in a riot, and (c) as having ‘participated in violent encounters. . . .” 

In addition, protesters blocked the entrance, so that worshippers could not enter or exit. That is not an exercise of free speech.  New York Police Department Commissioner Jessica Tisch issued an apology to the congregants for the NYPD’s not doing a better job keeping the entrance clear.

Because the event at the synagogue was protected speech, the police have an obligation to protect those wanting to attend the event. Police cannot shut down speech because others may react to speech with violence. In fact, that would be an instance of the “heckler’s veto,” allowing angry mobs to decide who is permitted to exercise their free speech rights. The heckler’s veto is anathema to a healthy operation of the First Amendment. Chants designed to make people afraid of exercising their free speech rights should, for the same reason, be discouraged.

The rabbi at Park East Synagogue, Rabbi Arthur Schneier, watched his synagogue burn in 1938 as a child during Kristallnacht, a period when the Nazi-German government burned or vandalized over 1,000 synagogues and Jewish-owned businesses. He is a Holocaust survivor. Populist movements designed to demonize Jews and make them afraid of their identity are not hypothetical to him or his congregants. 

Worldwide, synagogues have become targets.  Within the last few weeks, arrests were made outside of a protest in Los Angeles for vandalism and assault at a pro-Palestine protest that included hateful language, a synagogue memorial in Rome dedicated to a 2-year-old child killed in a synagogue attack in 1982 was defaced after a pro-Palestine protest, and a few weeks ago, the rabbi at a synagogue in Canada spoke out after the synagogue was defaced for the tenth time.  Vandalism, assault, and blocking entrances are not free speech.

Mamdani is correct that federal and New York Law prohibits those seeking to obstruct or intimidate people exercising their rights in a place of worship. Besides free speech activity, there are freedom of religion elements, even when synagogue events relate to Israel. The connection to Israel is central in many practices of Judaism, which comes from the region of Judea, the ancient homeland of the Jews. For example, the Shema, a sacred prayer originating in 1300 BC, has worshippers saying in Hebrew, “hear o’Israel, Adonai is your God, Adonai is one.” Not all Jews support Israel’s policies or even its existence, but there is a longstanding connection, both genetically and religiously, of Jews to the land of Israel.  Jews – including Ashkenazi and Mizrahi Jews – and later Palestinians both have indigenous ties to the Levant.

Several days later, after backlash from some in the Jewish community, Mamdani said “[w]e will protect New Yorkers’ First Amendment rights while making it clear that nothing can justify calling for ‘death’ to anyone.”  It is ambiguous whose First Amendment rights he is talking about here. Mamdani seems to be referring to the protesters’ speech here, as he wants to secure their right to protest while also condemning their hateful language.  Mamdani is in a difficult position on that front, as he is often asked to condemn violent or hateful language that may also be protected speech.

Mamdani’s implication that the synagogue was promoting activities in violation of international law is immaterial. The Mayor-elect must respect the constitutional rights of all New Yorkers. The Constitution, and secondarily federal law, are the supreme law of the United States, not Mamdani’s perception of international law.

What city leaders should be doing is noting that everyone deserves their free speech rights. No one is permitted to intimidate others out of assembling or exercising their own rights, whether leaders agree with them or not.  Two out of every three Jewish New Yorkers voted for Cuomo or Silwa over Mamdani, and one third voted for Mamdani, likely in part because of Mamdani’s rhetoric that employs double standards in ways that many Jews perceive as harmful, but Mamdani must support the free speech rights of all New Yorkers equally. He has stated that he will do so.     

Criticism of Israel or its government is protected speech, and there must be breathing room to criticize any country, government, or institution.  But that criticism cannot shield intended violence or intimidation that prevents others from also exercising their protected opinions and free speech rights. In order to preserve our robust freedoms, federal and state officials must take a principled stance to free speech rights, regardless of who is exercising them.