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.
Earlier this week, the UK Lawyers for Israel (UKLFI) submitted a complaint to the UK National Contact Point for the Organization for Economic Cooperation and Development (OECD) regarding the conduct of a multinational service network’s providing audit reports from which the Palestinian Authority (PA) has funded the payment of salaries to terrorists.
UKLFI, a non-governmental organization which seeks to promote the proper and just application of laws in relation to Israel, is taking the Pricewaterhouse Coopers (PwC) Global Network to account for enabling the PA to provide financial aid to terrorists, in violation of OECD Guidelines concerning Multi-National entities.
The report contends that PwC – which handles the financials for the millions of dollars in donations the PA receives annually – has failed to inform donors and the public that some of these funds go directly to the incitement of terrorism, nor have they acted to deter the PA from this abhorrent practice.
The submission claims that many donors “have relied on the fact that the PA is audited by PwC to argue that no further scrutiny is needed of the aid directed to the PA. In consequence the PA continues to be able to fund the incitement of terrorism.”
It is thus the objective of the UKLFI to “prevent the further violations of the human rights of…victims of terror, Palestinian citizens and taxpayers who contribute to international aid donations made to the Palestinian Authority”.
The report asserts that the UKLFI is ensuring that PwC conforms to OECD guidelines as well as to what the UKLFI identifies as values of integrity and humanity pledged to on the PwC website. The PwC Global Network has refused to provide information, and they are appealing to the UK National Contact Point to facilitate a non-adversarial dialogue with PwC to discuss how to bring its operations into line with the Guidelines.
This report will thus expedite the process to safeguard against such exploitations of humanitarian aid, as well as of human rights.
On New Year’s Eve, Michigan Governor Rick Snyder signed two anti-BDS bills into law. The bipartisan legislation—previously bill HB 5821 sponsored by Reps. Al Pscholka, Mike Calton, Jeremy Moss, and Andy Schor, and bill HB 5822 sponsored by Rep. Robert Wittenberg—prohibits the state from hiring businesses that boycott individuals or public entities of a foreign nation.
The new law states that the Department of Management and Budget and all state agencies “may not enter into a contract with a person to acquire or dispose of supplies, services, or information technology unless the contract includes a representation that the person is not currently engaged in, and an agreement that the person will not engage in, the boycott of a person based in or doing business with a strategic partner.”
These measures, which are now Public Acts 526 and 527 of 2016, condemn national origin discrimination and thus the efforts of the anti-Israel boycott, divestment, and sanctions movement (BDS). In effect, the new legislation outlaws business relations between public entities of the state of Michigan and companies that practice BDS policies.
The Public Acts protect Michigan’s economy from the devastating effects of boycotting Israel. Michigan benefits from tens of millions of dollars in annual economic trade with Israeli entities and partners with commercial interests in Israel. Their trade encompasses some of the state’s most important economic sectors—namely, technology research and development, defense, and health sciences. The BDS effort to restrict trade with Israel would threaten the future prosperity of both Michigan and Israel, a danger which Public Acts 526-527 effectively mitigate.
The recent legislation sends a strong message that Michigan will not support the anti-Semitism and intolerance of campaigns like the BDS movement. It is not only an anti-BDS victory, but also a triumph against prejudice and the practice of holding Israel to a double standard.
Michigan’s efforts come in the wake of similar action from other states in recent months. Ohio passed an anti-BDS law in December, following legislation in Pennsylvania in November, California in September, New Jersey in August, and Rhode Island in June. Michigan joins awcwnrwwn other states in opposing BDS. This new legislation marks the rising tide of state governmental efforts against BDS and points to continued success of the anti-BDS movement.
The Boycott, Divestment, and Sanctions (BDS) movement is being defeated and in perhaps the most surprising of nations – Spain. A country that topped the Anti-Defamation League’s 2015 anti-Semitism index in Western Europe, and the very place where a Catalan lawmaker demanded the head of Barcelona’s Jewish community be removed from the local government’s parliament for being “a foreign agent,” Spain has long been considered a BDS foothold.
That is, until about 15 months ago when Ignacio Wenley Palacios Iglesias came onto the scene. A Jesuit lawyer specializing in nautical law, Mr. Iglesias first became involved by happenstance. Iglesias’s daughter was attending the Rototom Sun-Splash Music Festival, infamous for its initial banning of Jewish American singer/ songwriter Matisyahu in 2015. Matisyahu was asked to denounce Israel before being allowed to take part in the Festival, a demand not extended to any of the other artists performing. Matisyahu adamantly refused. After massive international outcry, Matisyahu did perform, amongst a hostile crowd.
This event was given great attention at the time, and raised questions globally about the motives of BDS operatives and their deep entrenchment in the Spanish political system. For Iglesias, it was the catalyst which involved him in the fight against BDS.
Speaking to the Brandeis Center, Mr. Iglesias adamantly declared that he believes all boycotts of this nature to be unconstitutional. An expert in the Spanish constitution, Iglesias argues that such boycotts as have been imposed by state houses, city councils and universities around the country contradict the need for public offices to stay neutral and breach the civil liberties of various citizens, Jewish or not.
Supported by the The Lawfare Project’s legal fund as well as by ACOM in Spain, Iglesias has been fighting back through the very structures which first allowed this to take place, emphasizing and correcting the contradictions of the BDS through the court. At the time of our interview, Iglesias had spearheaded more than 40 legal rulings, injunctions and opinions against the Boycott Israel movements in Spain.
By fast tracking proceedings for the protection of civil liberties, Iglesias and his colleagues have won more than eight cases in which BDS has been declared illegal, three reversed judgements against previous BDS victories, and 11 injunctions against BDS whilst proceedings continue, something Iglesias categorizes as unprecedented.
This strategy, using the courts to uphold the law and constitution, has been widely successful across Spain, leading to the reimbursement of $107,000 to the Israeli University of Ariel, which had been boycotted by certain Spanish tertiary level institutions. Iglesias’s strategy has also led to a statement made by Spain’s Ministerio Fiscal (the Attorney General), who declared that the anti-Israel boycott of Gijon violates “the constitution as well as the European Convention for the Protection of Human Rights.”
Certainly, the past week saw another of these victories,: the city of Santa Eulalia nullified the pro-BDS position it had taken up only moths before.
Iglesias is confident that this common sense approach, which underscores the illegality of BDS, and will and must work across Europe and the globe.
Last month, the New Jersey General Assembly in an overwhelming 69-3 vote passed legislation prohibiting the investment of state pension and annuity funds in to companies that boycott Israel or Israeli businesses. A similar bill had passed through the state Senate in a unanimous 39-0 vote in May.
According to the legislation, the state’s $71 billion pension fund provides coverage for about 800,000 current and retired public employees. Under the bill, the state would have 120 days after its passage to identify companies that violate the new prohibition. It would then have an additional 24 months to withdraw investment or divest. However, according to the Philadelphia Inquirer, the state Treasury Department is not aware of any companies that the pension fund is invested in that would violate the legislation.
The bill also stated that Israel and New Jersey annually trade more than $1.3 billion in goods.
The legislation noted that, “It is important to the economic well-being of New Jersey that persons or entities conducting commercial trade and doing business in the State do not engage in boycotts of a legitimate and viable partner with whom New Jersey can enjoy open trade contracting,” and went on to say, “Therefore, it is in the best interest of this State that a statutory prohibition be enacted to prohibit the investment of public employee retirement funds in companies boycotting Israel.”
One of the bipartisan bill’s primary sponsors, Assemblywoman Valerie Vainieri Huttle (D., Bergen), also noted that the legislation aimed to maintain and strengthen New Jersey’s existing relationship with Israel.
Another one of the bill’s primary sponsors, Assemblyman Chris Brown, (R-Atlantic) commented, “We have no greater ally in the Middle East than Israel, and it’s in America’s economic and security interest to make sure Israel remains strong and stable.”
Brown, who participated in a Federation Mission to Israel for legislators earlier this year, went on to state, “From what I‘ve learned, the BDS movement is rooted in hate, and not truly motivated to help the peace effort,” noting that, “An economically strong Israel is the only way to ensure stability and peace for both Israelis and Palestinians.”
Senator James Beach (D-Camden), who also visited Israel earlier this year with 14 fellow lawmakers on a study mission that was sponsored by the New Jersey State Association of Jewish Federations, sponsored the bill in the Senate. He commented, “New Jersey has a long history of friendship with Israel, and any efforts to boycott Israeli goods, products and businesses are not only contrary to our values but are discriminatory and ill-intentioned.” He went on to say “We remain committed to standing against these practices, and banning investments in companies that engage in these activities is the right course of action.”
Governor Chris Christie is expected to sign the bill into law.
With the additions of New Jersey and Rhode Island this summer, at least other 12 states have passed anti-BDS legislation. It was reported that, in total, about 21 other states have taken up anti-BDS legislation.
It’s been a rough year for the American Studies Association (“ASA”), legally speaking.
Earlier this week, a lawsuit was filed in New York State Court against the New York Metro chapter of the ASA, alleging “unlawful discrimination under the New York City and State Human Rights Laws,” in relation to the ASA’s boycott of Israeli academic institutions.
In 2013, the ASA issued a boycott of Israeli academic institutions. The complaint was filed by New York attorney David Abrams, on behalf of plaintiff, Athenaeum Blue & White (“Athaneum”), a not-for-profit Israeli education organization with a principle place of business in New York. The complaint alleges that the plaintiff is barred from joining the ASA as an institutional member based on its Israeli national origin. Athaneum, according to the complaint, “is an organization which would [be] eligible for membership in the [ASA] but for their anti-Israel boycott.” The ASA is hence violating the New York City and State Human Rights Laws, as it is discriminating against the Plaintiff on the grounds of national origin.
This is the second lawsuit filed against the ASA in a matter of months.
In April, the Brandeis Center, along with prominent litigators at Marcus & Auerbach and Barnes & Thornburg, filed suit against the ASA for its unlawful boycott of Israel, on behalf of four distinguished American Studies professors.
The Brandeis Center’s clients, well-known academics in the field of American Studies, filed suit “to restore the ASA to its stated mission.” The professors wrote about how, over the past few years, the ASA “has been diverted from its scholarly mission —promoting the study of American culture—to a political one, by leaders seeking to turn the ASA into an organization that advocates for social change far beyond American borders, and with an unwavering focus on delegitimizing Israel.”
As LDB President Kenneth L. Marcus explained in Newsweek, “At the time the boycott was initiated, ASA’s constitution clearly stated that ‘[t]he object of the association [is] the promotion of the study of American culture through the encouragement of research, teaching, publication…about American culture in all its diversity and complexity.’ According to the American Studies professors, for 60 years, ASA has been an association focused on American Studies. It is not a social justice organization, nor is it a foreign policy organization. Indeed, according to the professors, boycotting a foreign nation has absolutely nothing to do with ASA’s mission and is therefore illegal.”
Although the Brandeis Center’s lawsuit is still in the early phases, it has already been credited in part with the dramatic defeat of a resolution calling for the American Anthropological Association (AAA) to boycott Israeli academic institutions, suggesting that the case will have a profound impact in future BDS decisions.
As demonstrated by these two recent lawsuits against the ASA, significant potential legal options aside from legislation that can be utilized to combat BDS, and unlawfully boycotting Israel can lead to repercussions.
The Boycotts, Divestment, and Sanctions (BDS) Movement against Israel took a big blow earlier this week when the American Anthropological Association (AAA) narrowly rejected a resolution calling for a boycott of Israeli academic institutions (2,423 against; 2,384 in favor). This BDS failure was remarkable in light of the overwhelming support that it had enjoyed just a few months before – at the AAA’s annual meeting last November, 88% of the membership in attendance approved the decision to bring the resolution.
The BDS movement attributes this dramatic defeat in part to LDB’s lawsuit against the American Studies Association (ASA) for passing the same type of resolution. Some AAA members apparently understood that their anti-Semitic resolution would likely be unlawful and could subject the association to costly litigation and humiliating defeat.
In April, the Brandeis Center, along with prominent litigators at Marcus & Auerbach and Barnes & Thornburg, filed suit on behalf of four distinguished American Studies professors, against the ASA, for its unlawful boycott of Israel.
The Brandeis Center’s clients, well-known academics in the field of American Studies, filed suit “to restore the ASA to its stated mission – the promotion of the study of American culture – so that the members of the ASA can once again faithfully exercise their membership.” Our clients wrote about how, over the past few years, the ASA “has been diverted from its scholarly mission —promoting the study of American culture—to a political one, by leaders seeking to turn the ASA into an organization that advocates for social change far beyond American borders, and with an unwavering focus on delegitimizing Israel.”
As LDB President Kenneth L. Marcus explained, when the boycott was initiated, the ASA’s Constitution stated that, “[t]he object of the association [is] the promotion of the study of American culture….” Similar to the ASA, the AAA’s stated purpose is to further its scholarly purpose, and would not authorize a boycott of Israel.
“‘This is not just about the American Studies Association,’” said LDB President Kenneth L. Marcus to Inside Higher Ed. “‘It’s about any association officer or director who is thinking about using their association as a tool to advance their own ideological agenda. This should send a signal that if association activists are not concerned that BDS resolutions are anti-Semitic and may be a violation of academic freedom they should certainly be concerned that they may violate corporations law.’” Additionally, in his op-ed in Newsweek, Marcus discussed the potential illegality of the AAA’s impending vote in the context of the Brandeis Center’s ASA litigation.
In addition to media coverage, at least two major anti-BDS reports were sent directly to the AAA. In one of these reports, posted on the LDB blog – Selective, Biased and Discriminatory: The American Anthropological Association Task Force Report on Israel Palestine – Elihu Richter, a founder of the Jerusalem Center for Genocide Prevention, addressed the selective, biased and discriminatory nature of the AAA’s Task Force Report (TFR) in respect to Public Health, the ethics of Operation Protective Edge and the effects of cradle-to-grave incitement in Palestinian society, and recommended retraction of the TFR. Further, a whole website was created – Against Anthro Boycott – for anthropologists to discuss, post news, and sign a statement against the boycott. more »
Our friends at the Pears Institute for the study of Antisemitism – Birkbeck, in partnership with the All-Party Parliamentary Group Against Antisemitism, will host a symposium entitled ‘Protecting and Offending Jews: Speech, Law and Policy’ on June 28. The event take place from noon to 4 pm in the Jubilee Room, Westminster Hall, House of Commons, London.
The symposium aims to consider the aspects of discourse which offend Jews. It will address the questions, “Is offensive discourse necessarily antisemitic? Do people take offense too readily and endanger free debate? At what point does criticism of Israel become offensive?” Secondly, the symposium will ask whether, in view of growing concern over antisemitism, the law should be augmented or amended to protect Jews further or whether current laws that target discrimination and prejudice give adequate protection. The presentations will be short and will allow for plenty of time for discussion. more »
LDB is pleased to once again partner with our friends at The Israel Forever Foundation in co-sponsoring the upcoming Institute for Law and Policy Summer Program for International Students and Attorneys, hosted by The Hebrew University at Mt. Scopus, Jerusalem. The program will span three weeks from June 27 to July 14, and will offer timely and informative courses on topics such as International Economic Law, International Criminal Court, Israel’s Human Rights Challenges, and the Legal aspects of the Middle East Conflict.