CUNY Law Dean Mary Lu Bilek: Threatening to Set a Sweatshirt on Fire while Someone is Wearing it is Exercising a "First Amendment Right to Express an Opinion"

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CUNY law student Nerdeen Kiswani posted on Instagram a short video (embedded in this link) of her standing next to an African-American man wearing an Israeli Defense Forces shirt. In the video, she pulls out a lighter, lights it, and says to the man, "I hate your shirt." She moves a bit closer with the lit lighter and says, "I'm gonna set it on fire." The man responds with something brief and inaudible, and then Kiswani responds, "Nah, I'm serious," still holding the lit lighter.

She tagged her post "I almost set this guy's shirt on fire" and "Fuck Israel. Free Palestine."

After some pro-Israel groups criticized the video and demanded a response, the Dean Bilek posted a condemnation headlined, "CUNY School of Law stands against hate and antisemitism." This may have been her first mistake. It's not clear where the incident took place, but the dean had no call to comment on whether the views of a student, expressed outside the law school, are hateful, antisemitic, or anything else.

After leftist students rallied around Kiswani, Dean Bilek

subsequently issued a statement to all students withdrawing and apologizing for the initial denunciation, claiming that Kiswani had simply "exercised her First Amendment right to express her opinion."

"In responding to this situation, we moved too quickly, which led to several mistakes," Bilek asserted. "I apologize for taking these actions and for the words we used and for the harm they caused."

She lamented the first statement's failure to "communicate the school's position or to support the student" — i.e. Kiswani.

"In that post, the header said that the Law School 'stands against hate and antisemitism,'" Bilek continued. "I know the difference between opposition to Israel's armed forces (or Israel's policies towards Palestine) and antisemitism, and the student's post was clearly expressing the former."

Once again, it's not Dean Bilek's job to mediate between those who think that this incident reflects antisemitism and those who think it only reflects opposition to Israel or Israeli policy.

That said, it seems to me that the whole controversy misses the forest for the trees. Regardless of what one thinks of the antisemitism issue, a CUNY Law student threatened to burn someone's sweatshirt with that person wearing it, while holding a lit lighter. She said she was serious. She posted the video stating that she almost burned the guy's sweatshirt.

Was she really serious? Maybe not. But in legal parlance, what she did was an assault, generally defined as "intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact." This is a criminal act, and is not protected by the First Amendment. And thus not only is there no reason for Bilek to "support the student," if the law school is going to make any official comment at all, it should be criticizing the student for using a threat of violence in the guise of expressing her opinion.

Back in 2018, writing about Bilek's failure to investigate, much less punish, students who disrupted Josh Blackman's talk at CUNY Law, I wrote a post entitled CUNY Law Needs to Fire its Dean. I can't say the recent incident has changed my opinion.

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  1. This doesn’t look like it’s a true threat to life of property to me.

    1. Alternate scenario: Conservatives rally around the case of a white student at Hillsdale College who threatened to burn with a lit zippo the shirt of a black passer-by who was wearing a BLM shirt, while the passer-by was wearing it. The event was all caught of video. The president of Hillsdale College is quoted as saying “BLM is a racist and Marxist organization that wants to destroy the nuclear family, and the white supremacist, ahem, I mean white patriot, was protesting miscegenation, as is our First Amendment right. Praise Jesus.”

      1. That’s an “alternate scenario” only in your overwrought imagination.

        1. The point of the suggested intellectual exercise, is for someone from the left to evaluate whether he would hold the same “it’s not *really* assault” position, if the roles were changed so it was some BLM supporter who was threatened with incineration from a hypothetical conservative AND that the person in authority would response with stupid bromides.

          It’s hyperbolic on purpose, though it mirrors the idiocy of the situation quite aptly.

          1. Yeah, I’m not jailing that guy, I’m mocking him.

            1. Given your frighteningly obtuse attacks on Nick Sandman, you’re not even self aware enough to engage in the thought exercise of flipping the script.

            2. But what do you do as the Dean of the Law School?

              I understand that you were originally just stating your legal opinion about whether it was reasonably considered a true threat.

              But this definitely went beyond an act to make fun of. I think it was pretty disgusting, and kind of scary. Especially if college students are being told that this is nothing but free expression.

              I think when you’re not just trying to tweak conservatives for fun, you’re generally moral and non hypocritical.

              Please just tell me honestly, this is basically the same act as mad’s hypo, yes?

              Do you not think that the reaction from the school, the students, and society in general would be to simply mock it as dumb but harmless expression.

              I’m not trying to win a debate with you. I want your honest opinion because I respect it.

              The only “objective” difference I can see (that I don’t agree with) is the idea of punching up vs. down when determining the “safety” of certain groups from others in formulating a proper response to an “act of expression.”

      2. Yes, whatever scenario you imagine where someone threatens someone else with a lighter is still making a threat. It assumes bad faith to understand that to be viewpoint-specific.

    2. Putting a lit lighter near someone’s sweatshirt while threatening to burn it isn’t “speech”, it is legally a threatening act. It’s unprotected to begin with, I’d say, though we can ask Eugene to mediate. If the guy wearing the sweatshirt had filed assault charges, Kiswani could win her criminal case by showing that the prosecutor cannot prove beyond a reasonable doubt that the complainant really was afraid she would burn his sweatshirt. I’m pretty confident she could not win by claiming that holding a lit lighter by someone’s shirt and threatening to burn it is speech protected by the First Amendment. Now, if she had merely stated, “I feel like burning your shirt, if I had a lighter with me I’d burn it,” that’s something else.

      1. My analysis is similar, and I know First Amendment doctrine pretty well. The only way lighting a lighter gets protection at all is if it is symbolic speech. Otherwise it is just unprotected.

        And symbolic speech has to pass the O’Brien test (upholding a rule against burning draft cards) to be protected. Holding a lighter up at a distance where it could set someone on fire is not going to protected under O’Brien.

      2. That is where I came out. There is a distiction between speech and behavior. The behavior was overtly threatening.

      3. “Now, if she had merely stated, “I feel like burning your shirt, if I had a lighter with me I’d burn it,” that’s something else.”

        Is it?

        How about “I hate you, if I had a gun, I’d shoot you”?

        1. Not a threat. It’s hypothetical.

        2. Is it?

          Yeah.

          How about “I hate you, if I had a gun, I’d shoot you”?

          How about, “If they ever make me carry a rifle the first man I want to get in my sights is [the president]?”

          1. Does it depend on context and whether a reasonable person would assume it as a threat?

            In the case of the President, in most contexts it’s PROBABLY not a true threat, but still might be investigated to determine.

            In case of a college campus where these people might run into each other again, it might depend on the believability of the potential burner.

            I’m not a lawyer, so I’ll trust your legal assessment over mine. Am I mistaken about the reasonable believability test?

            1. Am I mistaken about the reasonable believability test?

              Funny thing is, it’s not entirely clear! The Supreme Court held that negligence was not enough — it’s not enough that a reasonable person would have perceived a threat — but that was a statutory decision pertaining to a specific federal law. It punted on the question of whether the 1A required a higher mental state. That’s Elonis v. US.

              But the reason I mentioned that hypothetical is because it wasn’t a hypothetical. That’s Watts v. US. Mr. Watts was expressing his displeasure at the possibility of being drafted into service in Vietnam, and he said that about LBJ. SCOTUS held that it wasn’t a true threat, but obvious hyperbole, given the context and the fact that it was phrased conditionally.

    3. Also, did you watch the video? I would have punched the woman, or a minimum slapped her hand such that she dropped the lighter.

      1. And then you’d be accused of violence against women…

        1. The local Soros-assisted-in-their-election-democrat-DA would charge me with assault, likely yes, but at least I wouldn’t be burned.

        2. You have missed the change, then? There no longer exists ‘women’ and ‘men’.

          1. There are “women” and “men” when it works in a Liberal’s favor. Theoretically I should be able to punch out a woman the same as I would a man, but, we know how that would end up.

    4. Of course, it may have all been staged.

      1. It may be, in which case Dean Bilek should consider, if anything, why one of her law school’s students thinks that staging a threat of violence is an appropriate way to express one’s views.

        1. I should have added “/s”.

          I don’t believe those idiots are that clever.

    5. Guy pokes a gun in your ribs and says ‘your money or your life’.
      If the gun is a fake, made from wood, does that make it not a true threat? Not at all, even though the mugger knew that there was no truth to his threat. The person with a gun in their ribs could rationally think otherwise; the threat as received was true enough.

      Same for the shirt wearer. Had he defensively struck lighter-girl I’d be totally OK with that. A lighter is lethal if applied as the assailant proposed. Doesn’t take much of a clothing fire to maim or kill.

    6. Sarcastro:
      “This doesn’t look like it’s a true threat to life of property to me.”

      Scene: “She moves a bit closer with the lit lighter and says, “I’m gonna set it on fire.”

      Unless there’s any more doubt that this is a cult. So much for the reality-based community. If you just believe, you can imagine whatever facts you want.

    7. The “Nah, I’m serious” follow up removes a reasonable belief that it could have been a joking comment and not a serious threat.

      1. Not to mention clearly demonstrates pre-meditation – – – – – –

    8. I’m surprised you would say that. What Bernstein says above all seems right to me. It’s kind of funny how quickly the dean’s statement gets completely reversed. It’s almost as if they are making hostage statements.

    9. I think the legislature could prohibit lighting the lighter and holding it close to someone’s shirt. Such a regulation would be content neutral and would pass muster under United States v. O’Brien. I don’t think the “true threat” doctrine has much to do with symbolic speech, and lighting the lighter could only possibly be constitutionally protected as symbolic speech.

    10. How about if it was you wearing the shirt, and a redneck was threatening you?

      1. Pretty much this. I remember that Nick whatsisname with the Maga had. Had the situations been reversed, and the Maga hat was beating a drum, marching up into the face of the native American, who smirked and refused to budge, the story would have been how brave he was to stand his ground.

    11. Somebody tries that with me, I’ll inform them that, if they do it, I might get burned, but burns heal, and they’ll be crippled for life after I’m done with them.

      Jokingly, of course, just like the threat to set me on fire. Maybe I’d be jokingly waiving a baseball bat, like her joking around with the lighter.

      Of course it’s a true threat, Sarcastro. Don’t be an ass.

    12. So in your mind, what would have to have been different in this scenario for it to have been a true threat to life or property? Are you claiming that she would have had to actually light the sweatshirt on fire and watch the guy burn before it counted as a true threat?

      When someone says “I’m serious”, are we not entitled to take them at their word?

    13. “This doesn’t look like it’s a true threat to life of property to me.

      It would be if he’d just filled his gasoline tank and had splashed some on his sweatshirt in the process. It’s very easy to do that with the vapor recovery pumps.

      1. Congratulations one somehow stumbling on a take even dumber than the one you’re responding to.

        1. Just an average day for Dr. Ed.

        2. Aww, I didn’t think my take was that dumb!

          1. Dr. Ed definitely made it look a lot better.

    14. Years ago, Pat Buchanan used to flirt with anti-semitism. Among other things, he once posted some wacky idea from Stormfront, that noted a news story that someone was stuck in her garage when her car was running, and the fumes did not kill her. This supposedly proved that the Holocaust was a hoax, since exhaust fumes in a closed area do not kill someone.

      George Will had a great rejoinder. “Pat, why don’t you try it. Lock yourself in a closed garage, run your car, and sit there for a couple of hours. I mean it’s a hoax, so you should surive well.”

      So let’s get someone hostile, who says he/she hates Sarcastro, give them a lighter, which they will light and move menacingly towards you, tell you they plan to light your shirt on fire, all the while mouthing obscenities. Let us now if you feel threatened, would you?

      1. ” a news story that someone was stuck in her garage when her car was running, and the fumes did not kill her.”

        Doesn’t surprise me in the least — hot air rises. So if there was a place for it to go (e.g. eave vents) and a source of replacement air (e.g. a crack under the door), you’ll get a convection flow that vents it out. It’s how the Eskimos can have an open fire in their Igloos. Furthermore, a lawn mower produces more CO than a modern car — in part, that’s why there is a cat converter.

        1. Actually, the Hemlock Society tells people that modern cars produce little enough carbon monoxide that breathing their exhaust is no longer considered a reliable means of committing suicide.

          Not that I’d try it anyway; It might be out of tune, after all.

    15. “This doesn’t look like it’s a true threat to life of property to me.”

      Nothing you won’t defend I see. Well, being pro-left violence is at least an ethos

    16. the question is whether *a reasonable person* would apprehend a threat to his safety.

      1. Sorry, there are no reasonable persons left.

  2. I felt threatened by the micro-aggression of this law student. She should be dismissed from the law school for her inability to understand Crim Law I and Torts I.

  3. No wonder the law is such a despicable institution.

  4. Missing from all this lighter-fire-close stuff is the only important fact.
    The person wearing the shirt was black. The racist slaver who threatened him, regardless of any other factor, should be expelled immediately.

    1. Even worse. She had a lighter. She must be a smoker.

      1. Was she part of the Burn Loot Murder squad? I wonder what she planned to steal.

  5. Do I understand that the Dean of a law school completely misses the law on assault, and interpreted this incident as a First Amendment issue?

    1. She feared cancellation. Unable to enforce censorship through the courts (for now) cancellation i.e. social and professional and corporate advertising ostracism is the name of the game.

      A law professor should know the difference. She failed.

      1. She knows the difference. The problem here is lack of spine, not lack of brains.

    2. “Do I understand that the Dean of a law school completely misses the law on assault, and interpreted this incident as a First Amendment issue?”

      That seems way worse than the CP prof not knowing how to sue an LLC in federal court.

      1. this is a person responsible for the preparation of coming generations of attorneys, both for defense and prosecution, and it didn’t occur to her to categorize the incident as (arguably) an assault.

        Among one of her own students.

  6. A complaint to the bar association?

    1. What are you talking about?

  7. The Dean of a Law School does not understand criminal law (assault).

    Lol… this is exactly the kind of nonsense that drives people to vote for Trump

  8. If she’s a cop then it’d be OK.

    /sarc

    Obviously we can’t make ANY decisions based on the short video.

    Are they friends and she’s ribbing him (kinda dumb but friends do that)?

    His casual “naw” kinda leads me that it wasn’t serious.

    But the real part is how did the “alleged” victim feel.

    If he felt threatened, then it’s a potential crime.

    If he didn’t then no crime.

    And the 1A thing (and CUNY’s response[s]), is simply irrelevant.

    It’s either a criminal act – or it isn’t – and only the “alleged” victim can make that allegation.

    1. The most relevant New York statute, Penal Law § 120.15, does not appear to require proof of the victim’s reaction to the threatening conduct.

      1. I agree the reaction isn’t important.

        What is important is if the person felt threatened.

        Maybe he was parallelized with fear so only sad naw.

        But again, that’s his call to say whether he felt threatened.

        1. “What is important is if the person felt threatened.”

          Assault is a criminal offense against the State, not (just) the person saying ‘naw’.

          Could a reasonable third party witnessing this incident conclude that she made a threat and had motive and opportunity to carry it out?

          1. A reasonable third party could have opened up with a 1A:20B:C fire extinguisher (filled with Monoammonium Phosphate) and put both of them in the hospital with breathing problems.

            And then what???

          2. Irrelevant. For all practical purposes, the statute does turn on the reaction of the “victim.” You have to either intentionally place, or attempt to place, someone in fear. The former requires actual fear from the victim. The latter does not, but if the victim says “I knew the defendant wasn’t serious,” how exactly do you expect to convince a jury that the defendant was trying to make them afraid? (You can only make someone afraid if they think you are serious.)

            1. “The latter does not, but if the victim says “I knew the defendant wasn’t serious,” how exactly do you expect to convince a jury that the defendant was trying to make them afraid?”

              A jury can infer it from the circumstances. People make threats that they’re not prepared to follow through on all the time. Just because you call their bluff doesn’t mean that they weren’t trying to make you afraid.

        2. I’m not sure you’re following.

          Here is the text of the statute:

          A person is guilty of menacing in the third degree when, by physical
          menace, he or she intentionally places or attempts to place another
          person in fear of death, imminent serious physical injury or physical
          injury.

          The only consideration is the defendant’s state of mind: whether or not the victim felt threatened is legally irrelevant.

          1. “The only consideration is the defendant’s state of mind: whether or not the victim felt threatened is legally irrelevant.”
            that’s what I was looking for.

            And who determines the defendant’s state of mind? I’m thinking that would be a jury. Who proposes that to a jury to make the determination? A prosecutor.

            1. I’m responding to apedad (and agreeing with you).

  9. “Obviously we can’t make ANY decisions based on the short video.”

    Take we apply this standard elsewhere?

    1. Obviously I’m talking in a legal sense, not a Facebook-y/Twitter-y sense.

  10. The student should sue her and CUNY.

    In endorsing it as expression, she was acting as a state official and under color of state law.

    1. “Endorsing” something isn’t a tort.

      1. Depends on the venue. In Twitter court it’s a slam dunk.

  11. Wait a second. She threatened to set fire to a shirt being worn by an African-American? I thought Black Lives Mattered! Why isn’t this being called a blatant example of Systematic Racism?

  12. “…It’s not clear where the incident took place, but the dean had no call to comment on whether the views of a student, expressed outside the law school, are hateful, antisemitic, or anything else. …”

    David, you can’t have meant this, right? Of course the dean had a right to express an opinion about whether an act, done outside the law school (or outside the university, or inside the law school, or any place on Earth), was antisemitic (or anti-gay or anti-abortion, etc.). Surely you are not saying that deans lose their own First Amendment rights when they accept a job at a law school. That seems to be a weird position to argue for.

    Is it possible that you intended to write, “The dean had no right to speak *on behalf of the law school* when criticizing the actions…”? That would make much more sense. Can you clarify what you intended to say re stifling the free speech rights of university deans?

    1. “Of course the dean had a right to express an opinion…”

      Any thoughts on what the post actually said?

      1. 12,
        Not understanding your question. Not only did I make it clear what my concern was, I *EVEN QUOTED THE PART OF THE OP* that raised my concern. Did you not notice the quoted texted at the beginning of my own post . . . that was a tip-off that my comment had to do with the OP, and had to do with that particular part of the OP.

        (I, personally, thought the dean handled things very poorly . . . which seems to be the reaction of pretty much everyone commenting on this thread. But that’s a separate–although related–issue from: Does a dean lose his or her rights to comment as a private citizen on issues? I think a dean does not, but it seems as though perhaps David B does think this. I certainly wanted to give him a heads-up, so that he could clarify if it wanted to.)

        1. “Does a dean lose his or her rights to comment as a private citizen on issues?”

          No. I suppose that’s why the post said, “the dean had no call…” The claim was that’s it’s inappropriate, not that the dean had no right.

        2. When the dean said that the law school would support the stuxent (with the lighter), that clearly wasn’t a statement of private opinion. It was a statement in official capacity as a law school administrator.

          1. Reader,
            Absolutely right! And you noticed that I join you (and everyone else) in criticizing her for this. I only pointed out that David’s actual words suggested that any dean would be wrong for opining about some event, and that just seems wrong to me. I asked David to clarify, or clean up his remarks, or to edit his OP and change the wording. If he had done so (or does so in the future) to make it clear that he fully supports a dean (or professor, or provost, or trustee) who communicates an opinion, it’s fine, but not if that person seems directly or indirectly to be speaking on behalf of a university, or a specific part of the university (eg, to be speaking on behalf of a law school, or a Black Students group, etc etc). . . . then, that seems to be a reasonable position for David to take

            I notice that David is reading these comments and has already posted a response to at least one person. He has made–so far–a conscious decision not to clarify his words that I refer to, so I think it’s fair to take those words literally and specifically . . . his silence certainly does not suggest that he misspoke or that he was accidentally casual in his language. I think it’s more fair to David to assume at this point that he meant what he wrote, and that he wrote what he meant.

    2. I can’t speak to law schools, but most universities now enforce their codes of conduct off-campus.

  13. So would bringing a 5 gallon container of gasoline into the CUNY law library and saying you are going to set the collection on fire qualify as “expression?”

    1. In the MASH book, far funnier than the movie/show, the doctors put water in gasoline cans and douse someone with it, and then throw lit matches at him.

      1. It was one of the side-plots in a TV episode, with Col. Potter turning the tables on Klinger and his latest scheme for a Section 8.

  14. A swift fist to the face of that moron would have saved the dean much embarrassment and showed that law student the meaning of aggravated assault and its consequences.

  15. Isn’t it about time for Rev. Artie to step up and tell the clingers to open wider, and that having their betters threaten them with lighters is just a small taste of the wailing and gnashing of teeth that they will experience once Biden gets elected, and then forever and ever, world without end, amen.

  16. I am not for firing the dean as it smacks of cancel culture. But if this reflects what is taught in Con. Law there, the syllabus needs further examination and correction and refunds need to be given for those who did take such a defective course there.

  17. You’d think the Dean of a law school woudl know a little something about the law.

  18. Threatening to set someone’s sweatshirt on fire because of the message on it isn’t speech: it’s assault and a suppression of speech.

    The Dean should have stood her ground.

    What a shameful episode.

    1. The Dean should have condemned assault.

  19. I watched the video. The lighter was one of those butane torch lighters. Those things put out a very hot flame. Threatening to light someone’s shirt on fire probably qualifies as assault. I don’t think the First Amendment will be allowed as a defense. What if someone says, “Take off that shirt or I will punch you in the face,” and then puts their fists up as if to hit the person.
    That said, the student being threatened looked like he was laughing. There is a lot we don’t know about this situation.

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