LA's Hate Flyer Proposal Aimed At Antisemitic Messaging Raises First Amendment Concerns

First Amendment advocates are raising concerns about a Los Angeles proposal to use anti-littering laws to outlaw mass dissemination of antisemitic flyers that have appeared in some city neighborhoods.

The motion, submitted last month by council members Bob Blumenfield and Nithya Raman and approved last week by the city's Public Safety Committee, seeks a report from the city attorney and the police department on "littering in mass as a method to disseminate hate speech" and what legal options may be used to prevent it.

Although it does not identify who is responsible for the antisemitic flyers, the motion notes there have been incidents in recent years in Culver City, Brentwood, Beverly Hills and Huntington Beach, and that they are "sadly becoming a common occurrence."

“They go into a Jewish community and they put these very antisemitic pieces on people’s front steps trying to target, trying to intimidate a particular community,” Blumenfield said.

Los Angeles is not the first California city to consider combating hate speech with anti-littering laws, but the idea is still relatively untested.

David Loy, legal director of the California-based First Amendment Coalition, said flyers and leaflets are “at the core” of the country's constitutional protections.

“We have a long historical and protected tradition of people using flyers and leaflets and pamphlets to express their point of view going back to the founding of the republic,” he said. That includes hate speech, he added.

However, the constitution does not protect true threats of harm.

“What is a true threat cannot arise simply from the content of viewpoint or speech,” Loy said. “It has to be a genuine threat.”

So one question that could be used to determine whether the idea — if it becomes law in L.A. — would pass constitutional muster is: Does it target behavior that amounts to a real threat? Another is: What was the motivation behind creating it?

In other words, Loy said, if a “superficially neutral” statute is motivated by “hostility to content, that can present a First Amendment problem.”

Last month, the city of Poway in San Diego County approved a similar measure. The city council voted to ban “hate litter” in response to the distribution of antisemitic flyers near a synagogue where a gunman opened fire in 2019, killing one person and injuring others, according to The San Diego Union-Tribune.

Loy said he is keeping an eye on the ordinance and “considering what our next steps will be.”

The motion in Los Angeles comes as the conflict between Israel and Hamas continues and tensions between pro-Israel and pro-Palestinian activists in the United States have increased.

Pro-Palestinian activists worry that passing an ordinance in L.A. like the one in Poway could lead to censorship of their message criticizing Israel’s treatment of Palestinians. Too often, they say, criticism of Israel is equated with antisemitism.

“It's very alarming,” said Hamid Khan of the Stop LAPD Spying Coalition. “This is a shameful move to intimidate and harass people who are expressing their political views and who are speaking out for the liberation of Palestine.”

At a meeting of the city's Public Safety Committee last week, activist Christian Sanchez called it “dishonest” to connect the issue to littering.

“The people of L.A. will not tolerate the impediment of our rights,” he said.

The motion asks the city attorney, with the help of the Los Angeles Police Department, to look at ways “to increase penalties that make it a misdemeanor for any person to litter with the intent to willfully injure, intimidate, interfere with, oppress, or threaten any other person based on their perceived characteristics.”

Right now, littering is an infraction usually punishable by a fine.

In an interview, Blumenfield insisted he is not interested in restricting free speech rights.

“It's complicated in terms of the free speech issues,” he said. “The idea is to look at how we can say that this is wrong and that as a city we can have some penalties to prevent people from intimidating people in this manner.”

For Sanchez, the pro-Palestinian activist, the move is ominous. “The descent into fascism is a slippery slope,” he told the committee.

Peter Eliasberg of the American Civil Liberties Union of Southern California said he sees a number of potential problems with the move.

“I think the city council is treading in dangerous territory here,” he said. "It's going to depend a lot on how any ordinance is written by the city attorney. There are a lot of potential landmines here."

Now that the Public Safety Committee has approved the motion, the next step is for it to be considered by the full city council.