On Thursday, June 29th, the Equality Court sitting in the South Gauteng High Court of South Africa found Bongani Masuku guilty of hate speech following his comments calling for Jewish lives to be made “hell,” among other incendiary remarks. Over twenty-five years since the end of apartheid, South Africa continues the fight to eradicate discrimination, and the landmark ruling has widespread implications for the global fight against anti-Semitism.
In March 2009, Mr. Masuku, the international relations spokesperson for the Congress of South African Trade Unions (COSATU), threatened students in his speech at Wits University in Johannesburg during the “Israel Apartheid Week.” His controversial statements targeted South African families who had members serving in the Israeli Defense Force, and called for Jews in South Africa to be forcibly “removed” from the country. The South African Jewish Board of Deputies (SAJBD) lodged a complaint with the South African Human Rights Commission (SAHRC) in April 2009, which declared that the defendant’s comments qualified as hate speech, and ordered him to apologize.
However, Mr. Masuku refused to comply. The SAHRC subsequently brought the case to the High Court in order to enforce the ruling where a few days ago Judge Moshidi ruled that the 2009 statements constituted hate speech. Judge Moshidi also dismissed arguments by the Defense that the statements were about Zionists and thus not directed at Jews as a whole. In its press release, SAJBD commended the fact that “in terms of judgment, threats and insults against Jews who support Israel cannot be justified on the alleged basis that such attacks are aimed not at Jews but at ‘Zionists.’”
In his ruling, Justice Moshidi declared that the defendant’s statements violated section 10 of the Equality Act 4 of 2000, the comprehensive South African anti-discrimination law prohibiting hate speech. The Act holds the courts and state accountable for hate speech prevention, and ensures agencies abide by the terms of international and constitutional human rights law. Mr. Masuku must now apologize to SAJBD, the overarching organization for the South African Jewish community, within 30 days.
South Africa’s Equality Court has set a strong example that anti-Semitism, just like all forms of hate and bigotry, is unacceptable.
On June 19, 2017, The Lawfare Project and Winston & Strawn LLP filed a lawsuit on behalf of six students and several members of the Bay Area Jewish community against San Francisco State University (“SFSU”). The complaint alleges that the university has fostered a climate of anti-Semitism on campus, violating the plaintiffs’ constitutional rights to free speech and equal protection, as well as their rights under Title VI of the Civil Rights Act of 1964. President Leslie Wong, the California State University Board of Trustees, and other top administrative officials were named as defendants.
The lawsuit was prompted by alleged complicity of university administrators and police officers in the disruption of an April 2016 event, when San Francisco Hillel invited the Mayor of Jerusalem, Nir Barkat, to speak on campus. At the event, audience members were allegedly “subjected to genocidal and offensive chants and expletives by a raging mob that used bullhorns to intimidate and drown out the Mayor’s speech and physically threaten and intimidate members of the mostly-Jewish audience.”
Protesters yelled and chanted “Intifada,” [Arabic for “uprising,” the term “Intifada” has come to mean a call for violence against innocent Israeli civilians. The First and Second Intifadas in Israel resulted in 170 bombings perpetrated by Palestinian terrorists against Israeli civilians between 1989-2008], “Get the [expletive] off our campus,” and “From the river to the sea, Palestine will be free,” [the destruction of Israel entirely] while university administrators allowed the disruption to continue and instructed campus police to “stand down.”
The plaintiffs also allege that Hillel was unfairly excluded from a campus “Know Your Rights” fair aimed at members of vulnerable populations on Feb. 18, 2017.
The complaint contends that the way administrators handled the April confrontation and the most recent exclusion is consistent with other incidents on SFSU’s campus over the years. According to the complaint, “SFSU and its administrators have knowingly fostered this discrimination… SFSU has not merely fostered and embraced anti-Jewish hostility — it has systematically supported … student groups as they have doggedly organized their efforts to target, threaten, and intimidate Jewish students on campus and deprive them of their civil rights and their ability to feel safe and secure as they pursue their education.” Readers may recall how a SFSU professor of ethnic studies, Rabab Abdulhadi, used university tax-payer funds to finance a student trip to the Palestinian territories, where they were met by Leila Khaled, a Palestinian heralded as the first woman to have hijacked an airplane in an act of terror in 1969; or former student Mohammad Hammad, who infamously posted a picture of himself holding a blade on social media, saying: “I seriously cannot get over how much I love this blade. It is the sharpest thing I own and cuts through everything like butter, and just holding it makes me want to stab an Israeli soldier.”
Further, the complaint notes that “no actions were ever taken by SFSU against the disruptive students, no disciplinary charges were ever filed, and no sanctions were ever imposed against the groups or students responsible for committing these acknowledged violations.”
Lawyers for the students hope the case will set a precedent under Title VI, which protects Jewish students from being targeted for their ethnic or ancestral identity. “Title VI of the Civil Rights Act of 1964 is the underpinning of the modern American ethos of equal protection and anti-discrimination. This case isn’t about Jews, it’s about equal protection under the law,” Brooke Goldstein, director of The Lawfare Project, said in a written statement. “If the courts fail to apply Title VI in this context, we are creating a massive loophole that will ultimately be exploited at some point to target other marginalized minority communities. If we refuse to enforce anti-discrimination law for Jews, if we say Jews don’t deserve equal protection, it will erode constitutional protections for everyone.”
On June 19, the Supreme Court decided in Matal v. Tam that the government cannot refuse to trademark potentially derogatory or offensive names, a decision that will likely impact the national debate about hate speech and the First Amendment for decades. This ruling means that though hate speech remains constitutionally protected as a general matter, harassing conduct remains subject to civil rights laws.
The case arose when a rock band known as “The Slants” attempted to trademark their band name with the U.S. Patent and Trademark Office (PTO). The band’s request was denied because the trademark would be in violation of the Lanham Act, a federal statute that includes a “disparagement clause” that precludes the PTO from trademarking names that may “disparage” individuals or groups. The term “slant” is considered an ethnic slur directed towards the Asian community.
The Court unanimously agreed that the “disparagement clause” violates the First Amendment, but was split as to how. The Court unanimously agreed that the trademarks are not government speech but are inherently private speech because they are the mental creation of a private party. Previously, the Court had determined that government speech was not subject to the First Amendment, and in this decision, Justice Alito warned against the danger of applying the government-speech doctrine too liberally.
Then, Justice Alito was joined by Chief Justice Roberts and Justices Thomas and Breyer in refuting the government’s claims that trademarks were government-subsidized speech, which is not subject to the First Amendment. The Court reasoned that because the filer of a trademark was the party paying a trademark fee, instead of vice versa, this argument was invalid. Then, Justice Alito rejected the government’s argument that a trademark is commercial speech, which is subject to less First Amendment protection. Alito worte that even if it were commercial speech, the denial of a trademark application would not pass the test used to evaluate restrictions on such commercial speech.
In a separate opinion, Justice Kennedy was joined by Justices Ginsberg, Kagan and Sotomayor in determining that the “disparagement clause” was solely unconstitutional because it is an example of the government using its own judgment to discriminate against certain trademark requests, while allowing for others it finds more appropriate, constituting what the Court deems “viewpoint discrimination.” Justice Kennedy concludes by stating that “viewpoint discrimination” inherently violates the First Amendment and its purpose to create a “free and open discussion in a democratic society.”
The Court’s decision builds upon a trend taken by the Supreme Court in recent years to rule in favor of free speech protections, perhaps most notably in 2011, when the Court in Snyder v. Phelps protected the Constitutional right of protesters to use homophobic and otherwise offensive language outside of a military funeral.
Many free speech advocates are calling the Matal ruling a victory for the First Amendment, with the Court further defining free speech jurisprudence that will check government interference with even limited restrictions on free speech. In particular, the Matal decision is being celebrated by the Washington Redskins, the professional NFL team that has been engaged in legal battles since 2014, when PTO refused to renew the team’s trademark over the term “Redskins”, which is perceived to be an offensive slur for Native Americans. Others fear the Matal decision, asserting that it could provide new grounds for hate groups and others looking to trademark names and other materials that could incite hatred or worse for minority groups.
The Court has long upheld that hate speech that rises to the level of harassment- at least in cases of race or gender-based harassment- violates Title VII of the Civil Rights Act. This is unlikely to change going forward, but the Matal decision could further blur the line between what constitutes
Constitutionally protected hate speech and what is speech that is harassing and/or likely to incite public disorder.
The debate around hate speech and the First Amendment is especially pertinent on college campuses, where in recent years administrators, advocacy groups and other stakeholders have argued over what are the appropriate legal steps to take when students are subjected to hateful language by other students. More than half of all American college and university campuses, including many public institutions, have enacted speech codes which seek to limit when and where students can express themselves on campus. This has coupled with a rise in the occurrence of hate-based incidents on campus, including acts of anti-Semitism.
In recent years, numerous speeches and lectures organized by pro-Israel students and faculty on college and university campuses have been silenced by protestors. Notable incidents include Jerusalem Mayor Nir Barkat being shouted down by student protestors at San Francisco State University, the physical provocation of an Israeli professor by a student protestor during a private event at the University of Texas at Austin, and most recently last month, the sabotage by student protestors of an event at University of California-Irvine featuring Israeli veteran soldiers with loud chanting, profanity and accusations of genocide. Various state and municipal statutes and university codes of conduct prohibit the disruption of lawful meetings, affirming that the right to freedom of speech does not include the right to deprive others of their First Amendment rights. The Louis D. Brandeis Center for Human Rights Under Law has worked to protect the rights of Jewish and pro-Israel campus communities to safely and peacefully express themselves.
This past Saturday, Kansas State Senate passed a bill that will prevent the state from contracting businesses that engage in discrimination either against Israel or entities doing business in Israel. Kansas’ House previously passed the bill in a 116-9 vote in April and the State Senate approved it in a vote of 28-9. Due to the changes made, the will now head back to the House to receive a final vote. If this bill is passed and signed into law, Kansas would be the 21st state to pass anti-BDS legislation, accompanying states such as Michigan and Texas.
Kansas is joining the fight against the BDS movement – a movement that seeks to boycott Israeli businesses and entities linked to Israel. Israel is of high importance to Kansas, specifically its economy, given that the state exported $56.7 million in commodities to Israel and imported $83.7 million from Israel, according to Kansas’ Department of Commerce.
The bill would essentially require businesses and individuals that have contracts with the state to affirm that they are not boycotting Israel. This requirement, however, was loosened in an amendment made in the Senate. Sen. Tom Hawk offered an amendment, during debate on Friday, that would allow the Secretary of Administration more latitude in waiving the “no-boycott” requirement if he/she determines “compliance is not practicable or in the best interest of the state.” Sen. Steve Fitzgerald challenged this amendment, saying that if the requirement is waived because it causes inconvenience then “anti-Semitism is tolerable.”
Some outsiders, like the American Civil Liberties Union of Kansas, opposed the bill for its “attempts to punish free speech” as they wrote in a letter to lawmakers. However, lawmakers and U.S. precedence will tell you that this discussion, is not about free speech. Sen. Fitzgerald responded to these claims by asking rhetorically whether lawmakers would support the state doing business with firms that were openly racist, “Why not?” he exclaimed, “Free speech?” pointing out how this legislation is consistent with other anti-discrimination laws.
The U.S. government has historically rejected boycotts based on national origin, like the BDS movement. Additionally, Federal courts have ruled that economic boycotts are not protected free speech.
Earlier this month, Texas Governor Greg Abbott called in his budget for laws which will stop state support for businesses that endorse or adhere to boycotts of Israel. Seventeen states have currently enacted anti-BDS (boycott, divestment and sanction) legislation, with states such as Pennsylvania and Ohio having done so in just the last few months. The Texas law address state pension plans. In a news brief released by the Jewish Telegraph Agency, Abbott is quoted as stating that “[w]hile Texas pension plans have the goal of maximizing returns…this mission should not come at the expense of our principles.” Abbott elaborated further, saying that “Texas funds…should be prohibited from making investments that directly fund our nation’s enemies or those…with stated anti-Israel policies.” Texas, like many other states, currently bans state pensions and retirement funds from investing in Iran. Abbott met with Ron Dermer, the Israeli ambassador to the United States, last year. During his time with the ambassador, as reported by The Algemeiner, Abbott stated that both Iran and the BDS movement against Israel “actively engage” in attempts to delegitimize the Jewish state. Texas is no stranger to BDS and BDS-aligned groups such as Students for Justice in Palestine (SJP).
Governor Abbott’s calls for Texas anti-BDS legislation mirror the attempts by Maryland legislators. Maryland lawmakers and Jewish advocacy groups are currently putting the final touches on a bill that would ban companies that support the BDS movement from doing business with the state. This new bill comes after a failed attempt to introduce similar legislation last April. The previous attempt never saw the proposed bill introduced, which opponents of the bill credit to “intense opposition from public and state legislators.” The text for the proposed bill uses language similar to that of U.S. Senator Ben Cardin’s (D-MD) anti-BDS bill, which defined BDS as “actions…intended to penalize or otherwise limit commercial relations” with Israel. Cardin’s anti-BDS bill, H.R. 6298, was not enacted.
Both the Texas and Maryland attempts at anti-BDS legislation will face stiff resistance from the active members of BDS groups within both states. Critics of the Texas legislation claim it “infringes upon the First Amendment right to free speech,” specifically in regards to state issued funds. Defenders of anti-BDS legislation, such as Eugene Volokh, have responded that such anti-BDS bills do not restrict speech. Volokh explains that “a [business] doesn’t lose [federal/state] money just for condemning Israel or even praising a boycott, but only for actually boycotting Israel: refusing to deal with Israeli institutions or scholars.” Maryland’s legislation may face more intense opposition, since Mayland BDS groups believe that they helped to stop similar legislation from being passed last year, a belief that will no doubt embolden their resistance. Regardless of the challenges, legislators in both states are pressing on in their pursuit of legislation against the undue pressures targeting Israel and Israel’s supporters.
BDS is rapidly losing ground to the onslaught of legislation it faces at both the state and federal level. The BDS campaign’s attempts to stifle academic freedom and to demonize Israel are facing stiff opposition from an informed public, a public that became informed due to the now publicly litigated nature of the anti-Israel movement. Every attempt at a boycott motion, and the subsequent reaction from the states, leads to discrediting of the BDS movement. With more and more states now drafting anti-BDS legislation and several bills introduced through congress as well, it is only a matter of time before the BDS movement loses what little credibility it has left.
In an effort to condemn the actions taken by President Trump, some academics are now advocating a boycott against the U.S. similar as those attempted against Israel. Recent proposals to adopt sanctions and boycott measures against Israel have been mired in controversy and failure. The Modern Language Association (MLA) recently defeated a proposal for a boycott against Israel, as did the American Anthropological Association (AAA.) The failure of the proposed AAA boycott resolution has been credited, in part, to actions taken by the Brandeis Center and a team of litigators in pursuing legal action against the American Studies Association (ASA). Anti-American academics, incensed by President Trumps immigration policies, are now attempting to redirect such efforts against the United States.
The proposed boycott will take the form of a refusal to “attend international academic conferences held in the United States.” A petition entitled “In Solidarity with People Affected by the Muslim Ban” has been circulated among academics which asserts that academics must “question the intellectual integrity of these spaces and the dialogues they are designed to encourage while Muslim colleagues are explicitly excluded from them.” Helen McCarthy, writing for The Guardian, states that the boycott is a move taken purely in solidarity with Muslim academics now barred from U.S. conferences. McCarthy relates the feelings of one of the pledged academics: “How can free and open academic enquiry [sic] take place when one section of humanity is barred from participation?” The petition has garnered over 3,000 signatures, each of which constitutes a pledge to abstain from forthcoming conferences.
Some scholars have put forward concerns that this boycott may stifle academic discussion within the United States. Speaking with Legal Insurrection, scientist Max Berger stated that “any place that restricts the travel of [academics] to present their work is a problem.” These criticisms of the boycott have largely centered upon the shutting down of academic conferences which have nothing to do with the Trump administration or “Muslim Ban.” McCarthy’s article for The Guardian pointed out itself that “Trump will lose little sleep over a group of liberal academics from Europe boycotting a roundtable on 19th-century literature,” while “If US scholars find it harder to hold such meetings, or, as a result, to sustain networks with overseas colleagues, the action might be positively damaging.” Suggestions to have video conference and hold two-site conferences while the executive order is challenged in court have been put forward.
Several organizations have moved ahead with planned conferences, putting them in the crosshairs of those in favor of the boycott. The International Studies Association (ISA) has gone ahead with its conference this month in Baltimore, and has largely avoided boycott calls by pledging to refund registration fees to those academics denied visas or entry into the U.S. for the convention. The intentions of those calling for the boycott, regardless, remain clear. These members of the academic community want to show their disdain for the new administration by refusing to attend conferences organized by members of the academic community in the first place.
On Sunday, December 4, I had the pleasure of speaking at the CAMERA (Committee for Accuracy in Middle East Reporting in America) conference, “War by Other Means: Israel, BDS, and the Campus,” at Harvard Law School. In recent years, anti-Semitism has been on the rise throughout the country, and particularly on college campuses. Much of this anti- Semitism has taken on a new form, anti-Semitism “coded” as anti-Israelism. This conference addressed these very issues. Featured speakers included Harvard Law Professor Emeritus Alan Dershowitz, Cornell Law Professor William Jacobson, executive director of CAMERA, Andrea Levin, and co-founder and director of the AMCHA Initiative, Tammi Rossman-Benjamin.
The aim of the conference was to further understand what drives the growing and aggressive anti-Israel Boycotts, Divestment, and Sanctions (BDS) movement that has engulfed our campuses in the United States.
The BDS movement is a call to boycott all cultural, academic, and economic ties to Israel in an effort to strangle the country, until they are held accountable for alleged human rights violations against Palestinians. This movement portrays itself as a global human rights movement, however, as explained by Alan Dershowitz in a video message addressing the conference, “there is no BDS movement.” Movements, explains Dershowitz, are a global effort to hold accountable all countries that violate their terms of human rights abuses. BDS is an effort that solely focuses on Israel. Jordan, which is also a previous territory of the British Mandate of Palestine, doesn’t find it’s discriminatory citizenship laws toward Palestinians on the BDS’s movement’s agenda. He explains that If they were a movement for human rights accountability, Israel would be at the very bottom of their list. As a plethora of severe human rights violations are littered across the Middle East, the BDS movement against Israel has gained more visibility than others among college students.
Authors, lawyers, professors, academic professionals, activists, and students from Harvard – including students from the Harvard LDB Law Student Chapter — engaged in the discussion of campus climate for Jewish students today. Presentations included “Countering BDS on Campus” by Alan Dershowitz, “BDS Has A History” by Professor William Jacobson from Cornell University, “BDS and Campus Anti-Semitism” by AMCHA initiave’s Tammi Rossman-Benjamin, “Academic Freedom, Free Speech, and BDS: Advancing Viewpoint Diversity on Campus” by Professor Miriam Elman from Syracruse University, and “Answering SJP Propoganda” by Dr. Alex Safian.
On a panel along with other current and recent graduates, I shared my personal experiences as an Israel advocate while studying at San Francisco State University (SFSU), a campus with a great presence of anti-Israel and anti-Semitic activity. I spoke about Professors like Hatem Bazian and Rabab Abdulhadi, both of whom are active leaders of the BDS movement. Abdulhadi, a professor of ethnic studies at SFSU, used University tax-payer funds to finance a field trip for students to Palestinian territory to meet with Palestinian resistance fighters, whom of some were linked with US designated terrorist lists. She met with Leila Khaled, whom Professor Abdulhadi describes as “an icon in women’s liberation and an icon in liberations movements.” Leila Khaled was arrested in 1969 for hijacking an airplane in an act of terror, and she became a famous Palestinian icon for being the first woman to do so. I talked about how leaders of student groups and professors at my school have both gone under FBI investigation, including the former SFSU student Mohammad Hammad, who infamously posted a picture of himself holding a blade on social media, saying: “I seriously can not get over how much I love this blade. It is the sharpest thing I own and cuts through everything like butter and just holding it makes me want to stab an Israeli soldier.”
Students from Vassar College, Brandeis University, Cal State Long Beach, and University of Central Florida joined me to discuss their unique experiences on their given campus which brought them to advocate for Israel. Students, including a Muslim speaker who previously was a Students for Justice in Palestine (SJP) activist and transitioned into a strong Israel activist.
The reality of campus anti-semitism captivated the audience and motivated younger students and academic professionals to take initiative to validate Israel’s existence in the classroom and through advocacy. We were left reminded that although the climate can be challenging, the knowledge and motivation of future generations is in our in our hands, especially in a vital environment like a University campus.
The conference was closed with a statement by Andrea Levin, executive director of CAMERA, commenting on the very concept of War By Other Means: “We Will Win”.
For more updates and footage on the conference, visit CAMERA’s Facebook page here.
2016 has state legislatures taking a firm stand against the Boycotts, Disinvestment, and Sanctions (BDS) movement. This summer alone, the Brandeis Center reported that California, New Jersey, Rhode Island and New York all enacted various laws establishing themselves against this invidious form of discrimination.
Now, less than a month after California Governor Jerry Brown signed his state’s anti-BDS legislation, Pennsylvania Governor Tom Wolf will have the opportunity to do the same. Pennsylvania Bill HB 2107 which states that “Israel is America’s dependable, democratic ally in the Middle East, an area of paramount strategic importance to the United States” commercial activities and to discourage policies that disregard that interest” passed the Pennsylvania State Senate this past week 47-1 after passing unanimously in the House
The bill, when signed into law will ensure that companies contracted by Pennsylvania would be barred from becoming involved in any form of boycott — defined as efforts “to blacklist, divest from or otherwise refuse to deal with a person or firm when the action is based on race, color, religion, gender or national affiliation or origin of the targeted person or entity” – specifically in relation to Israeli companies or individuals.
Last week, I visited the University of Minnesota Law School to deliver a lunch lecture on anti-Semitism in higher education. It was one of a few campus visits I made this fall, and until now, the law students have been gracious hosts.
This was different. The flyers announcing my lecture were torn down, apparently by one or more people opposed to any discussion of campus anti-Semitism. Twenty flyers were posted in the student locker room and on the law school’s information boards, all in compliance with school rules. All twenty flyers were torn down, while flyers announcing other events remained in place, undamaged.
The flyers announcing my talk could not have been more innocuous. They simply announced, “JLSA Presents: Jennie Gross and the Rise of Anti-Semitism on College Campuses,” the date, place and time of the talk, and the logos for The Brandeis Center and Minnesota Hillel (and a local sandwich shop). There was no mention of international issues, and no condemnation of the boycott, divestment, and sanctions movement in the flyers. Whoever tore them down responded only to the topic of anti-Semitism on college campuses in the United States.
The irony was not lost on me. Invitations to talk about anti-Semitism on campus, sponsored by campus Jewish groups, were torn down. A fitting example of the topic of the lecture.
It is also an example of a rising trend on campus: the attempt by opponents to silence speech they disagree with. We saw this happen at San Francisco State University last spring, when visiting speaker Nir Barkat, Mayor of Jerusalem, was shouted down by anti-Israel protesters for over half an hour, until he finally gave up and left the venue while protesters cheered. We again saw it happen at the University of California, Irvine, when approximately fifty protesters surrounded a room of approximately ten Jewish students who had gathered to watch a documentary. The loud, aggressive protest disrupted the small event, and did not end until the police directed the protesters away from the building, watching them while other officers escorted the students inside away and to their cars.
It is likely that this vandalism was the act of just one or maybe a small handful of people. I know it is not a reflection of the broad and diverse student body at the University of Minnesota Law School. The lecture went forward as planned and was very well-attended by bright law students that asked thoughtful, intelligent questions. They did not attack me or each other. That is not to say that they are all in agreement on the issues of the day. But those students who actually attended the lecture were not afraid of hearing (and responding) to divergent points of view, and they treated everyone with respect. That is more than I can say about whoever who tore down the flyers.
Today, Dean Garry W. Jenkins issued a statement to the law school community, condemning the act of vandalism. His statement says, in part:
People may disagree and they can even disagree strongly, but ours is an environment where lawyers, lawyers-in-training, and those interested in law and legal institutions engage in dialogue. Diverse opinions are not only welcomed, but encouraged. Any efforts to shut down communication, including removing notices, undermine the values of our school and our profession.
. . . .
Our uniquely collaborative and supportive culture is one of our great strengths. I hope all of you will join me in deploring this act of vandalism and rejecting attempts to silence or marginalize. This purposeful community must remain welcoming and inclusive, and only together can we build, support, and sustain it.
I thank Dean Jenkins for his statement, and I thank the students that welcomed me to the University of Minnesota Law School.