A rising wave of anti-Semitic violence in the U.S. has prompted legal scholar Alan Dershowitz to warn that the Supreme Court may soon reconsider the First Amendment’s limits on incitement—a shift that could redefine American free speech.
At a Glance
- Dershowitz predicts the Supreme Court will revisit Brandenburg v. Ohio
- The case currently protects all speech unless it incites imminent lawless action
- Recent violent attacks have followed provocative anti-Israel slogans
- Dershowitz says indirect incitement may become a new legal focus
- Critics fear an overreaction could lead to censorship or new Patriot Act-style laws
Legal Storm Brewing
Alan Dershowitz, a constitutional expert and veteran defender of civil liberties, has raised alarm bells about what he sees as a coming legal reckoning for the First Amendment. He believes that rising public pressure in response to escalating anti-Semitic violence may soon compel the Supreme Court to revisit the seminal 1969 ruling in Brandenburg v. Ohio. That decision created a high bar for prosecuting speech, protecting even inflammatory rhetoric unless it is both intended to incite imminent lawless action and likely to produce it.
But recent events are testing that threshold. In an interview on The Glenn Beck Program, Dershowitz flagged chants like “Globalize the Intifada” and “From the river to the sea” as expressions that, while constitutionally protected today, could be recast as incitement if linked to real-world violence. “The incitement does not have to be so direct,” he noted, predicting that the courts may be forced to reconsider how they weigh indirect or symbolic provocation.
Watch a report: Alan Dershowitz Predicts Free Speech Crackdown.
Violence Raises the Stakes
The context for this shift is grim. A Molotov cocktail and flamethrower attack at a pro-Israel rally in Boulder and the fatal shooting of Israeli embassy staff in Washington, D.C. have moved the debate from the hypothetical to the horrifying. As antisemitic violence rises, lawmakers and jurists are facing renewed pressure to act.
For Dershowitz, these debates are not academic. He revealed that security at a recent campus event included bulletproof glass and a detailed escape plan, underscoring the personal risks involved. On social media, commentators are echoing his fears: one user questioned, “What’s the line between protected speech and incitement when rhetoric turns into repeated attacks?”
Freedom vs. Fear
Though Dershowitz is not calling for legal suppression of speech, he cautions that fear may steer the Court in that direction regardless. In his book The Preventive State, he argues for legal frameworks that protect both liberty and safety—but acknowledges that in times of crisis, balance often falters.
The danger, he warns, is that in a moment of panic following a catastrophic act of violence, the U.S. might embrace a sweeping new legal regime—what he dubbed a “super, duper Patriot Act.” This hypothetical legislation could curtail free expression far beyond its intended scope, leaving America with diminished rights in the name of protection.
Ultimately, Dershowitz urges vigilance—not just against violence, but against reactionary laws that could gut the very freedoms they aim to defend.
