Our Report, The Palestine Exception to Free Speech: A Movement Under Attack in the US documents for the first time the widespread and growing suppression of Palestinian human rights advocacy in the United States.
Over the last decade, a dynamic movement in support of Palestinian human rights, particularly active in US colleges and universities, has helped raise public awareness regarding the Israeli government’s violations of international law, as well as the role of corporations and the US government in facilitating these abuses. This activism, fueled by Israel’s increasingly destructive assaults on Gaza, presents a robust and sustainable challenge to the longstanding orthodoxy in the United States that excuses, justifies, and otherwise supports discriminatory Israeli government policies.
Fearful of a shift in domestic public opinion, Israel’s fiercest defenders in the United States—a network of advocacy organizations, public relations firms, and think tanks—have intensified their efforts to stifle criticism of Israeli government policies. Rather than engage such criticism on its merits, these groups leverage their significant resources and lobbying power to pressure universities, government actors, and other institutions to censor or punish advocacy in support of Palestinian rights. In addition, high-level Israeli government figures, led by Prime Minister Benjamin Netanyahu, and wealthy benefactors such as Sheldon Adelson and Haim Saban have reportedly participated in strategic meetings to oppose Palestine activism, particularly boycott, divestment, and sanctions (BDS) campaigns.
These heavy-handed tactics often have their desired effect, driving institutions to enact a variety of punitive measures against human rights activists, such as administrative sanctions, censorship, intrusive investigations, viewpoint-based restriction of advocacy, and even criminal prosecutions. Such efforts intimidate activists for Palestinian human rights, chill criticism of Israeli government practices, and impede a fair-minded dialogue on the pressing question of Palestinian rights.
This Report, the first of its kind, documents the suppression of Palestine advocacy in the United States. In 2014, Palestine Legal—a nonprofit legal and advocacy organization supporting Palestine activism—responded to 152 incidents of censorship, punishment, or other burdening of advocacy for Palestinian rights and received 68 additional requests for legal assistance in anticipation of such actions. In the first six months of 2015 alone, Palestine Legal responded to 140 incidents and 33 requests for assistance in anticipation of potential suppression. These numbers understate the phenomenon, as many advocates who are unaware of their rights or afraid of attracting further scrutiny stay silent and do not report incidents of suppression. The overwhelming majority of these incidents—89 percent in 2014 and 80 percent in the first half of 2015—targeted students and scholars, a reaction to the increasingly central role universities play in the movement for Palestinian rights.
The tactics used to silence advocacy for Palestinian rights frequently follow recognizable patterns. Activists and their protected speech are routinely maligned as uncivil, divisive, antisemitic, or supportive of terrorism. Institutional actors—primarily in response to pressure from Israel advocacy groups—erect bureaucratic barriers that thwart efforts to discuss abuses of Palestinian rights and occasionally even cancel events or programs altogether. Sometimes the consequences are more severe: universities suspend student groups, deny tenure to faculty, or fire them outright in response to their criticism of Israel. Meritless lawsuits and legal threats, which come from a variety of Israel advocacy groups identified in this Report, burden Palestinian rights advocacy and chill speech even when dismissed by the courts. Campaigns by such groups have even resulted in legislation to curtail Palestine advocacy, criminal investigations, and filing of charges against activists.
Specifically, the Report documents the following tactics employed to undermine advocacy for Palestinian rights.
False and Inflammatory Accusations of Antisemitism and Support for Terrorism: The Israel advocacy groups identified here devote considerable resources to monitoring the speech and activities of Palestinian rights advocates and falsely accusing them of antisemitism, based solely on their criticism of Israeli policy, in order to undermine their advocacy. Such conflation silences meaningful conversation about Palestinian rights and distracts from genuine forms of hatred and antisemitism. Some groups also accuse Arab-American, Muslim, and other Palestine solidarity activists of supporting or sympathizing with terrorism—an inflammatory charge often lodged without evidence. In 2015, for example, the anonymously run website Canary Mission published a list of organizations and activists it accused of supporting terrorism, including campus chapters of the Muslim Student Association, which it refers to as a “virtual terror factory.” The website seeks to “expose” individuals and student groups as “anti-Freedom, anti-American and anti-Semitic” to schools and prospective employers.
Official Denunciation: In response to outside pressure, institutional actors sometimes pronounce official disapproval of the legitimate views and actions of Palestine advocates, frequently by unfairly characterizing Palestine activism, particularly support for BDS, as improperly “delegitimizing” Israel or as uncivil, divisive, or not conducive to dialogue. Such misleading framing, promoted by certain Israel advocacy groups and predominantly reserved for speech in support of Palestine, barely masks the officials’ underlying disagreement with the viewpoint of Palestine activists. In late 2014, for example, University of California president Janet Napolitano denounced a campaign which asked student government candidates to make an “ethics pledge” to refuse free trips from Israel advocacy groups as violating principles of “civility, respect, and inclusion.” Her predecessor, Mark Yudof, likened a peaceful protest against a talk by former Israeli soldiers to hanging nooses, drawing swastikas, and vandalizing a campus LGBTQIA center.
Bureaucratic Barriers: University officials routinely erect administrative obstacles or abruptly alter school policies so as to hamper student organizing for Palestinian rights. These measures include creating impediments to reserving rooms and forcing students to obtain advance approval for events, pay security fees, and attend mandated meetings with administrators. Though seemingly neutral, these policies sometimes target and frequently disproportionately burden speech in favor of Palestinian rights. For example, in 2014, administrators at The City University of New York’s (CUNY) College of Staten Island repeatedly called members of Students for Justice in Palestine and their faculty advisor into meetings to question them about events and social media postings, urged the group to hold events alongside Israel advocacy groups, and instructed members to submit promotional flyers for official authorization.
Cancellations and Alterations of Academic and Cultural Events: From campus lectures and community discussions to art and film exhibitions, public events critical of Israeli policy often come under attack, forcing organizers to cancel, move, or substantially alter the programs. Israel advocacy groups frequently contend that programs lack “balance” or are antisemitic. For example, in the spring of 2015, the Missouri History Museum decided, after receiving complaints from Israel advocacy organizations, that an event on solidarity between activists working for justice in Ferguson, Mexico, and Palestine could not proceed unless organizers removed references to Palestine. In 2012, the University of California’s Hastings Law School withdrew its official support of a conference entitled “Litigating Palestine” after being pressured by Israel advocacy groups.
Administrative Sanctions: Universities often respond to complaints from Israel advocacy groups by investigating and disproportionately disciplining students and student groups for events and actions in support of Palestinian rights. For example, Loyola University Chicago launched an investigation into the school’s chapter of Students for Justice in Palestine (SJP) in fall 2014, after students lined up at a Birthright Israel table to ask questions that highlighted the discriminatory nature of the program, which excludes non-Jews. After a lengthy investigation, university administrators ultimately suspended the SJP group for the remainder of the year for failing to register the “demonstration.” Yet the administration chose not to suspend the campus Hillel chapter for similarly failing to register its tabling event, instead merely requiring the chapter group to meet with administrators to review school policy. In spring 2014, Northeastern University in Boston suspended a student group after members distributed flyers describing Israel’s policy of demolishing Palestinian homes. Public outcry and the threat of legal action, however, forced the university to reverse course and reinstate the group.
Threats to Academic Freedom: Israel advocacy groups often target academics critical of Israeli policies or supportive of Palestinian rights. Campaigns against faculty — from Columbia University to the University of California at Los Angeles — sully reputations, instigate university investigations, and can even lead to termination of employment. For example, the University of Illinois at Urbana-Champaign, succumbing to pressure from Israel advocacy groups and donors, summarily dismissed Professor Steven Salaita from a tenured faculty position at the outset of the fall 2014 semester because it deemed his personal tweets criticizing Israel’s 2014 assault on Gaza to be “uncivil.” San Francisco State University launched an investigation of Professor Rabab Abdulhadi in spring 2014, forcing her to defend a research trip to Palestine, after an Israel advocacy group accused her of abusing taxpayer funds and meeting with “known terrorists.” In fall 2014, the AMCHA Initiative, an Israel advocacy group, issued a blacklist of more than 200 Middle East Studies professors it declared to be “anti-Israel.”
Lawsuits and Legal Threats: Israel advocates also initiate lawsuits, administrative civil rights complaints, and other legal threats that hamper and intimidate advocates for Palestinian rights. Israel advocacy groups have filed at least six complaints with the Department of Education (DOE) asserting that, merely by tolerating campus events and protests that criticize Israeli policies, universities violate Title VI of the Civil Rights Act, which prohibits discrimination by programs receiving federal funds. Each of these complaints was ultimately dismissed. In 2011, five Olympia Food Co-op members, with the support of the Israel advocacy group StandWithUs, sued sixteen of the Co-op’s board members for voting to boycott Israeli goods, claiming the board had exceeded its authority. Even when they do not succeed, these protracted legal battles drain emotional, financial, and organizing resources and generate bad publicity, driving some individuals and groups to refrain from openly supporting Palestinian rights.
Legislation: Lawmakers, sometimes at the behest of Israel advocacy groups, introduce legislation and resolutions to condemn or restrict Palestine advocacy, often by linking criticism of Israel to antisemitism. Eleven such measures were introduced in 2014 and at least another sixteen in the first half of 2015. Seven of the 2014 measures, including one in the US Congress, condemned the academic boycott of Israel after the American Studies Association (ASA) passed a boycott resolution. Some bills went further, proposing to defund universities that subsidized faculty involvement in associations that supported a boycott, like the ASA. In 2015, Congress passed a federal trade bill that included an anti-BDS provision, and Illinois became the first state to sign an anti-BDS measure into law. Legislative bodies passed resolutions condemning boycotts in Florida, South Carolina, Maryland, and Pennsylvania in 2014 and in Indiana, Tennessee, New York, and Pennsylvania again in 2015.
Criminal Investigations and Prosecutions: Local and federal law enforcement officials have questioned, investigated, and in some cases prosecuted Palestine rights advocates based on their speech criticizing Israel. For example, in spring 2014, police questioned three Northeastern University students in their homes after an affiliated student group distributed flyers about Israel’s home demolition policies under dorm room doors. Three years earlier, prosecutors in Orange County, California initiated a rare criminal prosecution of students for peacefully protesting a speech by Israel’s ambassador to the United States and obtained guilty verdicts against ten University of California, Irvine and Riverside students on the charge of disrupting a public meeting.
All of these tactics—individually and in the aggregate—threaten the First Amendment rights of people who seek to raise awareness about Palestinian human rights and challenge the dominant perspective in this country, which discounts Israel’s discriminatory and violent government policies. They further undermine the traditional role of universities in promoting the free expression of unpopular ideas and encouraging challenges to the orthodoxies prevalent in official political discourse. Our constitutional tradition cannot tolerate an exception to the First Amendment simply because Palestinian human rights advocacy makes powerful listeners uncomfortable. The remedy for speech with which one disagrees is more speech, not enforced silence.
Yet, like the successful political and social movements that preceded it, the movement for Palestinian human rights faces reactionary forces that deploy heavy-handed financial, legal, and administrative measures to intimidate the movement and discredit its ideas—ideas that seek to promote justice, equality, and accountability. Today’s educational, governmental, and legal institutions should resist these tactics that attempt to punish, burden, or chill speech and advocacy supporting Palestinian rights or criticizing Israel. Instead, they should adhere to their stated commitments to provide space for open, robust debate on these vital issues of public concern.
Palestine Legal and the Center for Constitutional Rights (CCR) urge universities to review their policies to ensure that they protect academic freedom and to hear the concerns of students targeted by these attacks. Legislatures and government agencies, including the State Department and the DOE’s Office for Civil Rights (OCR), should clearly distinguish between antisemitism and criticism of Israeli policies in their definitions, policies, and legislation. Activists should not be labeled as antisemites or supporters of terrorism based on their criticism of Israel.
Even in the face of a variety of repressive measures, the movement for Palestinian rights continues to draw strength from the force of its ideas and the real prospect that changes to US public opinion—and one day access to justice for the Palestinian people—are indeed possible. Legal, political, and educational institutions should permit this important debate to continue freely, lest they find themselves on the wrong side of history.
This Report is based primarily on documentation, research, and investigation carried out by Palestine Legal, a legal and advocacy organization that protects the rights of Palestinian human rights activists in the United States. Palestine Legal accepts “intakes” from individuals and groups who report or request assistance with incidents of suppression or retaliation for their activities in support of Palestinian human rights. Palestine Legal carefully documents the facts and provides advice, referrals, and/or representation to the requestors.
The term “incidents” in this Report refers to actions to censor, punish, or otherwise burden advocacy for Palestinian rights. This definition includes actions by public actors such as universities, government officials, or agencies and by private actors like Israel advocacy organizations. The Report also documents requests for legal assistance in anticipation of actions to censor, punish, or otherwise burden advocacy for Palestinian rights.
The Report classifies incidents into specific subcategories, reflecting common patterns and tactics of suppression, though incidents often fall into multiple categories:
- False and Inflammatory Accusations of Antisemitism and Support for Terrorism
- Official Denunciation
- Bureaucratic Barriers
- Cancellations and Alterations of Academic and Cultural Events
- Administrative Sanctions
- Threats to Academic Freedom
- Lawsuits and Legal Threats
- Criminal Investigations and Prosecutions
Palestine Legal conducts its intakes confidentially. This Report and Appendix detail only those incidents that have been publicly reported or that affected individuals have permitted Palestine Legal to report. The Report also highlights incidents that took place prior to Palestine Legal’s founding in 2012. While the body of the Report includes both on- and off-campus incidents reported directly to or documented by Palestine Legal, the Appendix consists of a nonexhaustive catalogue of exclusively campus-related incidents. While the Report references many of the incidents in the Appendix, the Appendix provides additional information, sources, and responses to the incidents. More details about the campus incidents discussed in this Report can be found in the Appendix, listed by school name.
Palestine Legal and CCR selected cases for inclusion in the Report and Appendix based on the extent of available documentation, the representativeness of the incident, and the willingness of individuals involved to come forward in the absence of publicly available information. In investigating and documenting cases, Palestine Legal and CCR consulted a range of primary and secondary sources, including the accounts of the activists and advocacy organizations involved and reports by mainstream and alternative media sources.
THE EMERGENCE OF A BROAD US MOVEMENT FOR PALESTINIAN HUMAN RIGHTS
For decades, US policymakers have largely taken positions favorable to Israel on deeply contested issues around the Israeli occupation of Palestinian land, Israeli settlements, and other Israeli government policies and actions. US political support for Israel manifests itself—subject to slight variations across presidential administrations or legislators—in unparalleled military aid,1 routine vetoes of measures in the United Nations Security Council addressing Israel’s human rights violations,2 and attempts to shield Israel from scrutiny.3 Members of Congress have shown particularly strong support for the Israeli government, as evidenced by the unprecedented invitation to Prime Minister Benjamin Netanyahu to address the Congress during his 2015 reelection campaign, over the opposition of President Barack Obama.4 In conjunction with media coverage that typically tilts in Israel’s favor5 and the significant political clout of the pro-Israel lobby,6 US public opinion has long looked favorably on Israel and negatively on Palestinians.7
These dynamics cause those who dissent from the prevailing view of Israel’s policies to endure significant political backlash.8 Former president Jimmy Carter experienced this backlash upon publishing his book Palestine: Peace, Not Apartheid,9 as did former UN Special Rapporteur and Princeton professor Richard Falk for his strong criticism of Israel.10 This Report provides further, substantial evidence of that backlash.
Public support for Palestinian rights does exist outside the political establishment, primarily at a grassroots level—much like the protest movement against South African apartheid in the 1980s.11 The Israeli military attack on Gaza in July 2014, like the military campaigns before it, led to a worldwide outpouring of support and solidarity with Palestinians, as tens of thousands protested12 the Israeli assaults that caused widespread devastation in Gaza.13 Credible human rights organizations have carefully documented numerous Israeli violations of human rights and international law—such as the incarceration of around 5,500 Palestinians in Israeli prisons;14 detention of hundreds of Palestinians, including at least 164 children, without charge or trial;15 denial of freedom of movement to Palestinians;16 continued construction of settlements on occupied Palestinian land;17 regular military and settler violence against Palestinians;18 and the second-class status of Palestinian citizens of Israel.19 This documentation has contributed to the blossoming of informed, grassroots activism in support of Palestinian human rights over the last fifteen years.
Specifically, Palestinian solidarity movements inside and outside the US have coalesced around the 2005 Palestinian civil society call for BDS against Israel until it ends the occupation, guarantees equal rights for Palestinian citizens of Israel, and respects the right of refugees to return to their homes.20 BDS campaigns have achieved increasing success, as major institutions like the Presbyterian Church (USA) and the Bill Gates Foundation have divested from companies that contribute to Israeli human rights violations21 and numerous student groups have passed resolutions calling upon their universities to divest.22 Corporate BDS targets like SodaStream and Veolia have suffered major losses as a result of boycott and divestment campaigns.23
The movement has seen particularly significant growth on college and university campuses, where SJP and allied groups organize activities, ranging from scholarly talks and cultural events to protests and direct actions, that have increased discussion of Israel’s rights abuses. SJP groups have succeeded in building relationships with other social justice and human rights student groups, as their views often overlap with various realms of political activism, including immigrants’ rights, feminism, LGBTQIA activism, racial justice and student of color organizing, socialism, and environmentalism.24 Many SJP chapters also regularly partner with other movements for change, including the Occupy and Black Lives Matter movements, to issue joint statements, organize events, and explore connections between their social justice advocacy efforts.25 A series of national student conferences, starting as early as 2005, have brought together SJPs from across the country and led to the creation of an informal national SJP structure that serves as a resource for more than a hundred autonomous SJPs and other groups across the country.26 Many SJP groups describe themselves as diverse collections of students, faculty, and staff.27
In addition to the dynamic campus movement, hundreds of grassroots groups and organizations across the country work at the community level to raise awareness about the situation in Israel and Palestine.
Academics also play an important part in this burgeoning movement through engaging in scholarship and teaching, endorsing academic boycotts of Israeli institutions, and organizing and sponsoring academic discussions relating to Israel and Palestine. For example, thousands of scholars pledged to boycott the University of Illinois at Urbana-Champaign (UIUC) after it dismissed Professor Steven Salaita from a tenured faculty position for his personal tweets about Israel’s assault on Gaza in July 2014. (See Appendix entry for University of Illinois.) Additionally, prominent academic associations such as the ASA have passed resolutions supporting the boycott of Israeli academic institutions and maintained them despite legal and legislative attacks.
In addition to the dynamic campus movement, hundreds of grassroots groups and organizations across the country work at the community level to raise awareness about the situation in Israel and Palestine through educational activities and boycott campaigns. For example, Adalah-NY, a “volunteer-only group of concerned individuals that advocates for justice, equality, and human rights for the Palestinian people,”28 has engaged in a sustained advocacy campaign against Israeli settlement builder Lev Leviev.29 In a demonstration of cross-movement activism, the Block the Boat movement, a joint effort of Palestine solidarity and labor activists, stopped Israeli ships from unloading in Oakland and Los Angeles during Israel’s summer 2014 military campaign in Gaza.30
Palestinian rights activists from the US often go to Palestine in a show of solidarity with Palestinians under occupation, and some have been gravely injured and even killed by the Israeli government while defending the human rights of Palestinians.31 In 2003, twenty-three-year-old Rachel Corrie traveled to Gaza with the International Solidarity Movement. As she stood in front of a home to protect it from demolition while the family was inside, an Israeli soldier operating a Caterpillar D9 bulldozer drove over her, killing her.32 In 2010, Israeli soldiers repeatedly shot and killed eighteen-year-old US citizen Furkan Doğan, who was participating in the Flotilla to Gaza.33 Israel failed to conduct thorough, credible, and transparent investigations in both cases,34 and the US government has failed to investigate35 and demand justice.36
A handful of small national organizations also focus on Palestinian rights. These include a growing number of Jewish organizations that reject right-wing Israel organizations’ claims to represent the entire US Jewish community in uncritically supporting Israeli government practices, such as Jewish Voice for Peace,37 Jews Say No,38 the International Jewish Anti-Zionist Network,39 and Open Hillel.40 Other organizations include faith-based and secular advocacy groups like the American Friends Service Committee,41 American Muslims for Palestine,42 and the US Campaign to End the Israeli Occupation.43 On some campuses, Muslim Student Association chapters organize events focused on Palestinian rights and Israel’s policies, such as Palestine Awareness Week.44 Organizations that oppose Palestine activism have lamented the diverse and decentralized nature of this growing movement.45
Students, academics, and community groups engage in a wide range of activities to raise awareness about issues relating to Israel and Palestine, including:
Educational and cultural programming
Students, academics, and community members regularly host guest speakers and organize film screenings, conferences, concerts, art exhibitions, theatrical performances, poetry readings, and other events to raise awareness about the Palestinian experience and Palestinian culture to various audiences.
BDS campaigns largely consist of efforts to push universities and other institutions to divest from or boycott companies that facilitate rights abuses or violations of international law in Israel and the Occupied Palestinian Territory. Inspired by the anti-apartheid campaigns of the 1980s, these divestment campaigns have proliferated on campuses through student body resolutions and referenda. Several such resolutions and referenda have passed after long and passionate debates among the student body,46 despite intervention by off-campus Israel advocacy groups.47 The student governments of at least twenty-five universities across the United States have passed divestment resolutions.48 The student bodies on at least nine campuses voted to divest in the 2014–15 academic year alone.49 Other BDS campaigns include petitioning and holding street-theater actions in stores to convince businesses to remove products produced in Israeli settlements from shelves, organizing campaigns to dissuade artists from performing in Israel, and participating in boycotts of Israeli academic institutions.50
Peaceful protests against pro-Israel speakers
Activists have also sought to raise awareness about Palestinian rights violations by protesting when officials, soldiers, or other high-profile Israel advocates speak at universities or in other public forums, sometimes as honored guests.51 Protest tactics include interrupting speakers, unfurling banners, asking pointed questions during question-and-answer sessions, walking out en masse from events, and holding demonstrations and street-theater actions outside event venues.
Mock checkpoints, evictions, and apartheid walls
Student groups also regularly hold creative actions to raise awareness about the discrimination and abuse Palestinians endure. In several instances, students have constructed mock walls or staged mock checkpoints, dressing as Israeli soldiers and Palestinian civilians to illustrate how Israeli forces segregate, line up, harass, and detain Palestinians. In other instances, student activists have distributed informational flyers that mimic the eviction notices Palestinians receive before Israeli authorities demolish their homes.
Students and community groups often hold events to raise money for charities or nonprofits that provide humanitarian aid to Palestinian civilians in need or engage in human rights advocacy on behalf of civil society, and to support specific causes like the US Boat to Gaza, part of the 2011 Freedom Flotilla, which sought to break the blockade of Gaza.
CHILLING AND CENSORING OF PALESTINE ADVOCACY IN THE UNITED STATES
In reaction to the growing movement for Palestinian rights, a number of organizations that staunchly support Israeli policy have sought to suppress and silence criticism of Israel through a broad range of tactics. From January 2014 through June 2015, Palestine Legal interviewed hundreds of students, academics, and community activists who reported being censored, punished, subjected to disciplinary proceedings, questioned, threatened, or falsely accused of antisemitism or supporting terrorism for their speech in support of Palestinian rights or criticism of Israeli policies.
In 2014, Palestine Legal responded to 152 incidents of censorship, punishment, or other burdening of advocacy for Palestinian rights and 68 requests for legal assistance in anticipation of such actions. The organization responded to 140 such incidents and 33 such requests for assistance in anticipation of potential suppression in the first six months of 2015, the vast majority (89 percent in 2014, 80 percent in 2015) involving college students, university professors, or academic associations.
Because these incidents often involve recognizable patterns in strategies and tactics, the Report classifies them in the following categories:
- False and Inflammatory Accusations of Antisemitism and Support for Terrorism
- Official Denunciations
- Bureaucratic Barriers
- Administrative Sanctions
- Cancellations and Alterations of Academic and Cultural Events
- Threats to Academic Freedom
- Lawsuits and Legal Threats
- Criminal Investigations and Prosecutions
The fear of punishment or career damage discourages many activists from engaging in activities that could be perceived as critical of Israel.
These strategies of suppression often have their intended effect: intimidating or deterring Palestinian solidarity activists from speaking out. The fear of punishment or career damage discourages many activists from engaging in activities that could be perceived as critical of Israel. For example, several students told Palestine Legal that they feared that false accusations of antisemitism or supporting Hamas (designated as a terrorist organization by the US government) would hinder their ability to find a job or travel.52 The speech activities of Palestinian-American, Arab-American, and Muslim students routinely subject them to heightened harassment, intimidation, and discriminatory treatment in the midst of a post-9/11 climate in which their communities already face infringements of their civil liberties.53
The Report seeks to identify and criticize the ways certain groups staunchly supportive of Israel choose to stigmatize, silence, and suppress constitutionally protected activism that promotes Palestinian human rights or criticizes Israeli policies. The Report does not address advocacy in support of Israeli government practices that does not seek to suppress differing viewpoints. Any conflation of these distinct concepts merely evidences a failure to apprehend the free speech principles this Report sets out to defend.
Israel Advocacy Organizations
A network of lobbying groups, watchdog groups, public relations entities, and advocacy groups funded by, working in coordination with, and/or staunchly supportive of the policies and practices of the Israeli government primarily drives efforts to silence speech on behalf of Palestinian rights. Organizations dedicated to countering Palestinian rights activism—often in ways that seek to unlawfully suppress protected speech, as detailed in this Report—have proliferated in response to the increasing effectiveness of the movement for Palestinian rights. Prominent groups engaged in suppression include the Louis D. Brandeis Center for Human Rights Under Law (Brandeis Center), the Zionist Organization of America (ZOA), the AMCHA Initiative, Hillel International, Shurat HaDin–Israel Law Center, StandWithUs, the Anti-Defamation League (ADL), the American Israel Public Affairs Committee (AIPAC), the Jewish Federations of North America, the Jewish Council for Public Affairs, Scholars for Peace in the Middle East, the American Jewish Committee, the Committee for Accuracy in Middle East Reporting in America (CAMERA), Divestment Watch, the Israel on Campus Coalition, Campus Watch, the David Project, and the David Horowitz Freedom Center.54
These groups are not monolithic and pursue distinct strategies to suppress speech critical of Israel. Hillel International, the largest Jewish campus organization in the world, prohibits campus Hillel affiliates from hosting speakers supportive of BDS.55 The Brandeis Center, which focuses on confronting the “resurgent problem of anti-Semitism and anti-Israelism on university campuses,”56 the AMCHA Initiative, and ZOA have filed complaints alleging violations of Title VI of the Civil Rights Act of 1964, arguing that speech critical of Israel creates a hostile educational environment for Jewish students (see section B, part 7c). AMCHA and the David Project have mounted campaigns to malign individual students and faculty members.57 StandWithUs, which boasts of a “sizeable team . . . dedicated to supporting students’ efforts to promote and defend Israel amid the virulent anti-Israel movement on college campuses,”58 reportedly works closely with the Israeli government59 and keeps dossiers on pro-Palestinian speakers.60 Shurat HaDin, an Israel-based organization that “fight[s] academic and economic boycotts and challeng[es] those who seek to delegitimize the Jewish State,”61 acknowledges working with Israeli intelligence agencies and law enforcement62 and has threatened or initiated legal action against several organizations that have contemplated or passed BDS initiatives, including the Presbyterian Church (USA), the ASA, and the Park Slope Food Coop.63 While more mainstream groups sometimes criticize activities of groups that occupy the far right of the spectrum,64 their collective efforts to suppress speech produce the same effect: suspicion and heightened scrutiny of individuals critical of Israeli government actions toward Palestinians.
These groups spend considerable time and resources combating what they deem to be efforts to “delegitimize” Israel. The “delegitimization” framing, which the Israeli government and many US officials have adopted,65 allows Israel advocacy organizations to cast criticism of Israeli state practices as a challenge to the state’s “right to exist.” The Reut Institute, an Israeli think tank, characterized the BDS movement itself as a “delegitimization challenge” and an “existential threat” in a 2010 paper.66 The Reut Institute recommended that Israel respond by “sabotag[ing] [delegitimization] network catalysts”67 and “attack[ing] catalysts”68—that is, those who question Israel’s policies and practices. Building on the Reut Institute’s suggestions, Israel advocacy groups have committed vast resources to responding to “delegitimization challenges.”
In October 2010, the Jewish Federations of North America and the Jewish Council for Public Affairs launched the Israel Action Network, a $6 million campaign to counter “delegitimization” activities and monitor groups advocating for Palestinian rights through BDS and other actions.69 The Jewish Agency for Israel declared in 2013 that it was developing a plan that would eventually commit $300 million to this effort and “would combine donor dollars from the United States with Israeli government funds to create what is likely the most expensive pro-Israel campaign ever.”70 In June 2015, casino mogul Sheldon Adelson and media proprietor Haim Saban convened a summit that reportedly raised “at least $20 million” to combat BDS efforts.71
The Israeli government itself identified “delegitimization” as a threat and set aside resources to combat it.72 Prime Minister Benjamin Netanyahu reportedly convened a meeting of top Israeli ministers in February 2014 to discuss ways to combat the BDS movement. The officials discussed using lawsuits “in European and North American courts against [pro-BDS] organizations,” “legal action against financial institutions that boycott settlements . . . [and complicit] Israeli companies,” and “encouraging anti-boycott legislation in friendly capitals around the world.”73 Officials understood that undertaking such efforts would require “activat[ing] the pro-Israel lobby in the US.”74
These Israel advocacy organizations, many of which have operated for decades, are increasingly focused on countering the Palestine solidarity movement, BDS, and campus activism in particular.
Universities and Other Institutions
As universities have become ground zero in the clash between advocates for Palestinian human rights and the counter-campaign to silence criticism of Israel, university administrators have emerged as key decision-makers regarding whether to condemn, limit, or sanction Palestine advocacy. Universities, along with other institutions that host or sponsor events related to Palestinian rights, often come under substantial pressure from Israel advocacy organizations able to mobilize donors, community members, and sympathetic media. As detailed throughout the Report, university administrations have canceled programs, sanctioned students, fired professors, and scrutinized departments in response to external pressure. In so doing, universities treat students who speak out on Palestine differently than other students, indicating that the viewpoint of the speech, and not the facially neutral explanations often put forward, drives the censorship. Viewpoint-based restrictions at public institutions, including universities, violate the First Amendment.
University administrations have canceled programs, sanctioned students, fired professors, and scrutinized departments in response to external pressure.
Other institutions have similarly acceded to pressure from Israel advocacy organizations by canceling events and otherwise closing off forums for discussion and debate on Palestinian human rights.
US government actors have also contributed to the suppression of advocacy for Palestinian rights. The executive branches of federal and local governments, which include local police, the Department of State, the Department of Education, the Federal Bureau of Investigation (FBI), and the Department of Homeland Security (DHS), as well as other law enforcement agencies and prosecutors’ offices, have engaged in targeted surveillance, investigations, raids, and criminal prosecutions on the basis of Palestine advocacy. Lawmakers have proposed and passed legislation that impinges upon free speech and other civil liberties. These activities sometimes take place with significant encouragement and input from Israel advocacy groups and Israeli officials.
False and Inflammatory Accusations of Antisemitism and Support for Terrorism
The primary tool in the arsenal of Israel advocacy organizations is public vilification of supporters of Palestinian rights—and their advocacy campaigns—as antisemitic or pro-terrorism. These accusations subject students, scholars, and other advocates to significant personal and professional harm and deter many from publicly criticizing Israel’s actions. Character attacks also force students and scholars to spend significant time combating accusations that could ruin their careers. As one student who was falsely accused of associating with terrorists noted, “the underlying message” is “that if you speak out too loudly or work too hard . . . anti-Palestinian activist[s] will smear you just like [they] tried to smear me.”75 Even where the threat does not result in self-censorship, accusations of antisemitism and support for terrorism often persuade campus authorities to restrict or punish protected speech.
Monitoring and Surveillance to Facilitate Accusations
To facilitate false accusations of antisemitism and support for terrorism, Israel advocacy organizations monitor Palestinian rights advocates on social media, scrutinize them in public, and sometimes infiltrate private settings. Through social media monitoring, organizations identify out-of-context quotations, Facebook posts, and other material that can serve as fodder for character attacks. For example, in January 2015, the Reut Institute reportedly held a “hackathon,” in which Israeli officials and a number of other Israeli advocacy groups participated, aimed at exploring ways to gather intelligence on and target individuals involved in Palestine solidarity work.76 In its June 2015 strategy document, the Reut Institute highlighted the need to “out-name-shame the delegitimizers” as a strategy to fight BDS, recommending the use of “all available fire-power—financial, social, legal, etc.”77
In spring 2015, an anonymously run website, Canary Mission, published names, photos, biographical information, and links to Facebook profiles for dozens of students, professors, and other activists in order “to expose individuals and groups that are anti-Freedom, anti-American and anti-Semitic” to schools and prospective employers.78 Canary Mission relies on little or no evidence, using innuendo and guilt by association to accuse dedicated activists and organizations of connections to terrorism. Campus Watch, led by far-right Israel activist David Horowitz, has long engaged in such activities, maintaining and publishing dossiers on students and faculty and urging readers to “alert university stakeholders” to the “problems in Middle East studies.”79 Organizations like StandWithUs also reportedly keep dossiers on activists.80
The primary tool in the arsenal of Israel advocacy organizations is public vilification of supporters of Palestinian rights—and their advocacy campaigns—as antisemitic or pro-terrorism.
Students and other activists have reported being videotaped and photographed at demonstrations and other events for Palestinian rights. Students at DePaul University, for example, told Palestine Legal that an Israeli consular entourage videotaped and photographed them as they canvassed campus during a divestment referendum campaign. (See Appendix entry for DePaul University.) Such surveillance can affect students of Palestinian origin in particular, some of whom have expressed concern that documentation of their Palestine rights advocacy may lead Israel to deny them entry to visit family in Israel and Palestine.81
Surveillance also sometimes goes beyond public monitoring and involves in-person infiltration of student groups in private settings. In one instance, leaked documents revealed that a student spying for the AMCHA Initiative at UC Santa Cruz traveled as part of a university-sponsored student delegation to Israel and Palestine. The student wrote a confidential report to AMCHA that included details about other delegation participants, including reflections about the trip posted to a private group on social media.82 In another instance, someone reporting for David Horowitz’s website, Jew Hatred on Campus, attended an SJP meeting at UCLA and published notes, including students’ comments about how to respond to posters that branded SJP as an antisemitic, pro-terrorist organization. (See Appendix entry for UCLA.)
Equating Criticism of Israel with Antisemitism
False and inflammatory allegations of antisemitism underlie many attacks on Palestinian rights activists in the United States. Of the 152 incidents Palestine Legal responded to in 2014, 76 (50 percent) involved accusations of antisemitism based solely on speech critical of Israeli policy; in the first six months of 2015, 83 of 140 incidents (59 percent) involved false accusations of antisemitism. Accusations of antisemitism chill discussion and debate on Israel/Palestine.
In two cases during the spring semester of 2015, for example, students were blocked from even discussing boycott and divestment. At the University of Toledo (UT) in Ohio, Israel advocacy groups claimed that a divestment resolution would create an antisemitic
environment on campus.83 In response, the UT student government barred the public’s attendance at a divestment hearing, in violation of Ohio’s Open Meetings Act; restricted the attendance of SJP members, forcing them to sit in a separate room from Hillel students; and blocked student senators from voting on the resolution. After significant outcry, the student government allowed the resolution to go forward; it passed overwhelmingly. (See Appendix entry for University of Toledo.) At Northeastern University, the student government blocked the student body from voting on a divestment referendum because students, backed by Israel advocacy groups, argued that discussing divestment would in and of itself create an antisemitic climate.84
In some cases, Israel advocacy groups even charge that academic content covering Palestinian history, culture, or social movements is antisemitic. For example, in spring 2015, AMCHA demanded the cancellation of a student-led course at UC Riverside called “Palestinian Voices,” which sought to explore “Palestinian voices through contemporary literature and media.”85 The course assigned reading materials that focused on Palestinian historical narratives, literature, and cultural production and included readings by Edward Said and Rashid Khalidi, as well as a spectrum of Israeli Jewish writers, from Benny Morris and Eyal Weizman to David Grossman and Neve Gordon. AMCHA argued that the course’s “clear intent [was] to politically indoctrinate students to hate the Jewish state and take action against it.”86 While the university allowed the course to go forward, the student instructor became the target of anti-Muslim hate mail and misogynist cyberbullying as a result of the campaign.87 (See Appendix entry for UC Riverside.)
AMCHA similarly objected to Palestine-related course material at UCLA in spring 2012, arguing that the inclusion of BDS-related links on the website of a course taught by Professor David Shorter violated university policy and state and federal law. After receiving several letters from AMCHA that claimed the BDS materials were akin to antisemitism, the chair of UCLA’s Academic Senate conducted an investigation without notifying Professor Shorter and shared disputed information about the investigation with the press. The Academic Senate’s Academic Freedom Committee ultimately found that posting the links fell within Professor Shorter’s right to academic freedom.88 Nevertheless, Shorter suffered considerable damage as a result: several major publications carried stories about AMCHA’s campaign against him,89 which generated hate mail, death threats, and a reputational smear that resulted in the loss of consulting contracts.90 (See Appendix entry for UCLA.)
Israel advocacy groups have increasingly promoted the “State Department definition” of antisemitism, which erroneously includes criticism of Israel as a nation state in the definition.91 Departing from the conventional understanding of antisemitism as hate and ethno-religious bias against Jewish people, the redefinition defines antisemitism to include “demonizing Israel,” “applying a double standard to Israel,” and “delegitimizing Israel,” also referred to as the “three Ds.”92 (See, for example, Appendix entries for UCLA and UC Berkeley.) This redefinition serves to chill debate and justify legislation and other punitive actions against advocates for Palestinian rights.
For example, AMCHA cited the “State Department definition” to support its claims against the course at UC Riverside.93 During the spring of 2015, Israel advocacy groups urged the University of California,94 Stanford,95 Northwestern,96 and Northeastern97 to adopt the redefinition. AMCHA’s Tammi Rossman-Benjamin explained that such a move would render BDS and other common forms of campus activism, such as replicas of Israel’s wall or talks by former Israeli soldiers about abuses they witnessed, antisemitic by definition.98 At the time of publication, no university has adopted the redefinition, but student governments at UC Santa Barbara99 and UCLA have passed resolutions that condemn antisemitism on campus and incorporate the “three Ds.”100
In 2012, the California legislature passed a resolution officially branding speech supporting Palestinian rights “anti-Semitic.” House Resolution No. 35 calls for the regulation of speech critical of Israel on California college campuses and defines antisemitism even more broadly and vaguely, to include “language or behavior [that] demonizes and delegitimizes Israel” and “student- and faculty-sponsored boycott, divestment, and sanction campaigns against Israel.”101 In contravention of well-established First Amendment principles, the resolution also condemns “speakers, films, and exhibits . . . that falsely describe Israel, Zionists, and Jews” or claim that “Israel is a racist, apartheid, or Nazi state [or] is guilty of heinous crimes against humanity such as ethnic cleansing and genocide.”102 It further calls for “strong leadership from the top . . . [to ensure] that no public resources will be allowed to be used for anti-Semitic or any intolerant agitation.”103 (See Appendix entry for UC System—Campus Climate.)
Conflating criticism of Israel with antisemitism also fuels the false narrative that genuinely antisemitic incidents like swastika vandalism stem from pro-Palestine activities. For example, in the spring of 2015, Israel advocacy groups quickly attributed swastika graffiti found on the property of a Jewish fraternity at UC Davis to a recent student government vote to divest from companies aiding in Israel’s occupation, despite lacking evidence of any such connection. (See Appendix entry for UC Davis.) A few months later, at Stanford University, Israel advocacy organizations similarly speculated that swastika graffiti stemmed from a recent BDS campaign, though police later identified a teenage perpetrator with no known connections to the Stanford campus or to the Israel/Palestine issue. (See Appendix entry for Stanford University.)
SJPs are not the sole targets of false accusations—groups like Jewish Voice for Peace (JVP), the emerging Open Hillel movement, and even J Street, a liberal “pro-Israel” organization, have all faced accusations of contributing to antisemitism.104 The ADL’s annual list of “top ten anti-Israel groups” regularly includes organizations that promote Palestinian rights, like JVP and SJP, on the basis that they “employ rhetoric that is extremely hostile to Israel, Zionists and/or Jews.”105 Such accusations ignore the track record of groups that advocate for Palestinian rights as part of a larger commitment to equality and justice for all people.
Antisemitism accusations carry great potency, particularly given the historical memory of the Holocaust, the long history of bona fide antisemitism in the US, recent instances of swastika graffiti on campuses, and violence against Jews in North America and Europe. Yet, labeling critics of Israel antisemitic chills protected speech, ruins reputations, and intentionally diverts the conversation away from Israel’s violations of Palestinian rights and toward the allegedly sinister motivations of individuals. When students wish to raise questions about Israel’s human rights record—for example, through a divestment referendum or a student-led course on Palestinian literature—they must redirect their resources away from discussing Israel/Palestine issues in order to defend themselves against false accusations. As the co-president of NYU’s SJP explained:
If you can say that they’re a self-hating Jew or they’re anti-Semitic, it draws attention away from the issues we’re talking about, so suddenly we’re not discussing home demolitions, we’re having to defend ourselves and say, no, we don’t actually hate Jewish people—we’re just trying to draw attention to Palestine.106
Conflating criticism of the Israeli government with antisemitism also undermines and distracts from the fight against genuine antisemitism. To address instances of anti-Jewish animus, educators and students alike must be able to identify them, but this becomes impossible when the meaning of the word is diluted. As a Jewish student from Stanford explained, “As Jews, we must be vigilant in fighting anti-Semitism on campus. We must be equally vigilant in fighting the abuse and misuse of the term.”107
False Accusations of Support for Terrorism
In addition to false accusations of antisemitism, Israel advocacy organizations frequently accuse advocates for Palestinian rights of supporting violence and terrorism. In 2014, 20 of 152 incidents (13 percent) reported to Palestine Legal involved false accusations of support for terrorism. In the first six months of 2015, 41 of 140 incidents (29 percent) involved false accusations of support for terrorism. The claim that Palestine activists support terrorism frequently relies on anti-Muslim and xenophobic stereotypes about the inherent violence and hateful worldviews of Arab, Muslim, and international students. The claim also echoes the conspiracy theory that the Muslim Brotherhood is infiltrating US institutions—a theory that the Center for American Progress identified as a central theme of the Islamophobia industry in its 2015 report, “Fear, Inc., 2.0.”108 Most importantly, the accusations detailed in this section are baseless; no links between terrorism and student activism for Palestinian rights have been substantiated.
[L]abeling critics of Israel antisemitic chills protected speech, ruins reputations, and intentionally diverts the conversation away from Israel’s violations of Palestinian rights.
Many of the most strident attacks target the main organizations involved in Palestine advocacy. For example, the website HamasOnCampus.org claims that “SJP was created to be Hamas on Campus and work in tandem with the Muslim Brotherhood proxy, the Muslim Students Association (MSA).”109 Canary Mission repeats hyperbolic accusations that JVP is a “semi-terrorist group” and that MSA is a “virtual terror factory,” asserts that SJP is “linked to terrorist activity,” claims that the BDS movement is “directly connected” to the Muslim Brotherhood and Hamas, and argues that the Council on American-Islamic Relations (CAIR), a civil liberties organization, “emphasiz[es] support for terrorism.”110
In a 2013 lecture, AMCHA’s Rossman-Benjamin described SJP and MSA students as “motivated by very strong religious and political convictions,” with “fire in their belly” and “ties to terrorist organizations.”111 (See Appendix entry for UC Santa Cruz.) In early 2015, the David Horowitz Freedom Center produced posters depicting violent images of executions from the Arab world with the hashtag “#JewHatred,” linking this unrelated violence to SJP with the words “Students for Justice in Palestine” and “Stop SJP because it promotes terror groups.” It distributed these posters to fifty campuses across the country, including UCLA, UC Irvine, DePaul University, and University of Massachusetts, Amherst, as part of a larger campaign entitled “Combat Jew Hatred on College Campuses” that included a website, videos, and teach-in events to link SJP to terrorist groups.112 (See Appendix entry for UCLA.) None of these allegations have been substantiated.
Accusations of support for terrorism also target specific campus chapters and individual activists. For example, in the spring of 2015, when students at UC Santa Cruz enacted a mock Israeli checkpoint, anonymous complainants filed “hate/bias reports”113 falsely alleging that SJP supported terrorism and that members dressed like “Islamic Jihadis.” (See Appendix entry for UC Santa Cruz.) Around the same time, news outlets cited a satirical Facebook comment by UC Davis student senator Azka Fayyaz, which said that “Hamas & Sharia law have taken over UC Davis” after the UC Davis student senate passed a divestment resolution, claiming that divestment supporters embraced terrorism. Fox News ran the headline “Pro-Palestinian Students Heckle Cal-Davis Opponents with Cries of ‘Allahu Akbar!’”114 Another headline read, “Hamas on Campus: At U.C. Davis, Students for Justice in Palestine Chant ‘Allahu Akbar,’ Endorse Terrorism.”115 As a result of these accusations, hate messages, including “wipe out these vermin now” and “wipe out these Islamic savages now,” flooded UC Davis Facebook pages.116 Fayyaz reported receiving messages accusing her of being an antisemite, a spokesperson for Hamas, and a “Jew-hater.”117 The president of UC Davis SJP told the Sacramento Bee that the hate messages targeted Muslim women wearing head scarves, who as a result were “afraid to walk on campus.”118 (See Appendix entry for UC Davis.)
Accusations of support for terrorism result in the restriction of academic inquiry and advocacy for Palestinian rights. For example, at Rutgers University in the fall of 2010, Hillel and the ADL accused a student fundraiser for the US Boat to Gaza, a part of the Gaza Flotilla, of providing material support for terrorism; as a result, Rutgers prevented organizers from donating the money they raised to the designated nonprofit organization.119 (See Appendix entry for Rutgers.) In 2014, San Francisco State University (SFSU) audited Professor Rabab Abdulhadi after the AMCHA Initiative accused her of abusing state funds to meet with terrorists in Palestine and Jordan on a university-funded trip; while SFSU ultimately cleared Abdulhadi of wrongdoing, finding the allegations meritless, the public smear campaign went unanswered for months, sending a strong message to both scholars and students about the dangers of working on Palestinian issues. (See Appendix entry for SFSU.)
Mere allegations of association with terrorism stigmatize and intimidate the target. Against the specter of increasingly draconian criminal prosecutions, such accusations—although baseless and often laughable—lead many scholars and students to self-censor out of fear of endangering their careers. Abdulhadi explained the impact:
I spent my 2014 sabbatical responding to [allegations of terrorism] and providing support and reassurance to my students whose learning environment was severely disrupted by the intensity and malevolence of AMCHA’s attempt to destroy our program [the Arab and Muslim Ethnicities and Diasporas Initiative] and implicitly brand them, by association with me, as potential “terrorists.” As a result I was unable to work on the book I had planned to write during my sabbatical and am now behind schedule in completing the research and publications necessary to advance to a full professorship.120
Institutional actors, in response to pressure from Israel advocacy groups, frequently express official disapproval of opinions and activities supporting Palestinian rights, as scores of university presidents and public officials have done with boycott and divestment initiatives. For example, 250 university leaders issued statements opposing the ASA’s endorsement of an academic boycott of Israel, according to the far-right blog Legal Insurrection.121 After students held a “die-in” protest for Gaza and Ferguson at CUNY John Jay College of Criminal Justice in New York City, President Jeremy Travis sent an email to the campus community connecting SJP’s activities with the rise in antisemitism in Europe and suggesting that such activities “fueled these trends.”122
University administrators sometimes compare student advocacy for Palestinian rights to racist incidents. For example, the university counsel at the University of South Florida compared a referendum question asking the student body whether it supported BDS against Israel to a referendum asking the student body “to support the KKK.” (See Appendix entry for University of South Florida.) Mark Yudof, as president of the University of California system, publicly compared a peaceful walkout from an Israeli soldier’s speaking event to the hanging of a noose in a campus library, drawing swastikas, and vandalizing a campus LGBTQIA center.123 (See Appendix entry for UC Davis.)
More often, decision makers cloak their disfavor for Palestine rights advocacy through reference to “balance,” “dialogue,” and “civility,” terms that echo the talking points of Israel advocacy groups.124 University administrators often reference these vague concepts to criticize or to justify their decisions to censure Palestinian rights advocacy, labeling outspoken faculty and students as “uncivil” and “divisive.”125 For example, in the spring of 2014, SJP at UCLA challenged the influence of Israel lobby organizations on campus and raised concerns about the conflicts of interest that arise when elected student officials accept free trips sponsored by lobby organizations. In response, UC president Janet Napolitano issued a statement “on civil discourse,” a rare interference in campus politics that portrayed SJP as uncivil and divisive, deemed its advocacy “harmful, hurtful speech,” and urged members of the university community “to come together, in open dialogue.”126 The message so seriously mischaracterized the facts that students regarded it as an attack on their viewpoint and a signal that the administration would view any criticism of Israel advocacy groups and Israeli government policies as “uncivil,” regardless of form.
Politicians and university administrators use the “divisive” label, regularly put forward by Israel advocacy groups,127 to undermine student activists working on BDS campaigns.128 Ironically, university administrators deem BDS efforts “divisive” precisely because they accomplish what they set out to do: challenge political orthodoxy and the status quo. As journalist Ben White put it, universities apply the label to “those actions likely to upset those seeking to shield Israel from accountability for human rights violations.”129 After the student government at Stanford passed a resolution calling for divestment in early 2015, the university Board of Trustees issued a statement that it would not act on or even evaluate the request to divest from companies that profit from human rights abuses in Israel and Palestine, stating that “rather than explore such issues, the board focused on the questions of divisiveness.” (See Appendix entry for Stanford University.)
Calls for “dialogue” and “civility” are also used as a form of coercion to punish student speech in favor of Palestinian rights. For example, in the fall of 2014, Loyola University - Chicago required SJP to attend “intergroup dialogue training” as a punishment for its peaceful protest of a registration table for the Birthright Israel program, which takes Jewish students on free trips to Israel. The administration explained that the dialogue training aimed “to support SJP’s skill development in exercising alternatives to approaching difficult dialogues,”130 but in fact it compelled students to attend and applied it as a punitive sanction. The following spring, in response to passage of a divestment resolution in the student government, the Loyola president stated his opposition and called for a “community of dialogue.”131 (See Appendix entry for Loyola.) Similarly, in spring 2013, Northeastern required SJP to write a “civility statement” as punishment for failing to register in advance its protest of an Israeli soldier’s speaking event. (See Appendix entry for Northeastern.)
These examples illustrate a common complaint: that the focus on a “divisive” campus climate and calls for further dialogue repeatedly deflect attention from the human rights concerns that students are raising.132 Moreover, administrators have attempted to coerce students into “dialogue” and “civility.” The British BDS group Jews for Boycotting Israeli Goods explains that “dialogue may be worthwhile if there is any chance that it will be used to encourage insight and change, towards respecting Palestinian rights. Instead it is used to bully others into acquiescence with the powerful.”133
“[D]ecision makers cloak their disfavor for Palestinian rights advocacy through reference to “balance,” “dialogue,” and “civility.”
Official disparagement of advocacy for Palestinian rights—both explicit and implicit—marginalizes the individuals who hold these views and chills others from speaking out or taking part in activities that they understand to be officially disfavored.134 In the interest of avoiding discomfort for those who disagree with the students’ views, universities effectively muzzle discussion about a matter of public concern. In so doing, they fail in their educational mission to nurture academic freedom, free inquiry, and open debate.
Universities and student governments frequently respond to pressure to curtail Palestinian rights advocacy through ostensibly neutral administrative mechanisms and policy changes that disproportionately burden such speech. Student organizers told Palestine Legal that they faced extensive administrative hurdles, including lengthy review periods for new student group applications,135 obstruction of event approvals and room reservations, objections to using the name Students for Justice in Palestine136 or the word “apartheid,”137 imposition of significant security fees,138 repeated administration requests to meet with student group leaders about their events, periodic reviews of their groups’ activities and plans, demands to alter street-theater scripts or flyers, threats to revoke SJP’s status for procedural reasons, and unprecedented demands to publicly release private internal notes. (See, for example, the Appendix entries for Barnard, Brooklyn College, CUNY John Jay College of Criminal Justice, CUNY College of Staten Island, DePaul, Northeastern, Purdue, and Stanford.) While administrators have on occasion imposed similar restrictions on other groups—at least one campus, for example, responded to the Occupy Wall Street movement by banning “camping” and barring members of the public from attending campus events139—their restrictions frequently target Palestine activists. In 2014, 59 of the 136 campus-related incidents to which Palestine Legal responded involved bureaucratic barriers. In the first sixth months of 2015, 33 of 112 campus-related incidents involved bureaucratic barriers.140
For example, a dean at one university in the Northeast attempted to dissuade several students from starting an SJP chapter, stating that the group represented a “disruptive influence” on other campuses and pondered whether one could “be pro-Palestine and not also be an antisemite.”141 After this happened, the students initially considered using a different name; after consulting with Palestine Legal and other SJPs, they decided that “serious education needed to be done,” including “draft[ing] up an essay of an email” to the administration and scheduling meetings with administrators to explain “why [their] objections were so disconnected from the reality of what Students for Justice in Palestine stands for.”142
At CUNY Brooklyn College, administrators imposed unprecedented demands on student organizers during the lead-up to a 2012 BDS event featuring human rights activist Omar Barghouti and philosopher Judith Butler. The event drew the ire of Israel advocates, including some New York City politicians who threatened to withdraw city funding from the college. In response to the controversy, administrators imposed additional requirements on organizers beyond what is normally required and mandated attendees to pass through two checkpoints and a metal detector and have their names checked by public safety officers in order to gain admission. (See Appendix entry for Brooklyn College.) “Any student group that’s organizing an event particularly around this issue of Israel and Palestine has to go through a bureaucratic maze of regulations,”
explained Brooklyn College professor Corey Robin. “They are written down but they are so complicated and so lengthy that I, who have a PhD from Yale University, have an extraordinarily difficult time making sense of them. That’s how Byzantine they are.”143
In spring 2014 at Barnard College, the administration banned student groups from hanging banners on its main hall, a tradition dating back decades, after students from Hillel complained that an SJP banner advertising the March Israeli Apartheid Week, which included a map of historic Palestine, made them feel unsafe and uncomfortable. (See Appendix entry for Columbia University/Barnard College.) A member of SJP at Barnard, Shezza Abboushi Dallal, described the college’s decision to remove their banner without notice as particularly disturbing for Palestinian students
who come to college . . . to broaden [their] opportunities and open the door to more professional and intellectually stimulating experiences and in that space that is far from the conflict, [they] face the same sort of backlash and repression. . . . When you are attacked so frequently, when you are kind of shut down so frequently, you adopt a mindset of a victim which is valid but it is also very dangerous to the movement because it inhibits you and keeps you stuck in a narrative of victimization and doesn’t allow you to grant yourself your own political agency.144
In spring 2015, students with SJP at CUNY Hunter College reported being called into a meeting and told by the dean of diversity and compliance that they could not distribute a flyer titled “Thinking about Going on Birthright Israel?” The dean reasoned that the flyer—which notes that such trips violate the call “to boycott the Israeli tourism industry until Israel grants basic human rights to Palestinians”—did not bear sufficient relation to the group’s Israeli Apartheid Week agenda.145 Another administrator required the group to submit for review a script for a street-theater performance depicting a pregnant Palestinian woman stopped at an Israeli checkpoint. The administrator found the depiction of childbirth in the script inappropriate, despite students’ assurances that the monologue included no nudity or scenes portraying childbirth, and forced students to radically rewrite it.146 The incident left students feeling “incredibly frustrated and angry,” like the administration was “simply trying to silence us.”147
At CUNY College of Staten Island, SJP’s president and faculty advisor reported that, since the group’s founding in 2013, it has faced significant delays when seeking event approvals and requirements to meet administrators on short notice and to submit event flyers for pre-authorization. (See Appendix entry for CUNY Staten Island.) Similarly, at Purdue University in 2012, students reported that before approving a mock checkpoint demonstration, administrators had requested evidence that Israeli checkpoints violated Palestinian human rights, as well as the full scripts the actors would use and the names and phone numbers of all students participating. These onerous requests led the group to opt not to organize another mock checkpoint the following year. (See Appendix entry for Purdue.)
Such scrutiny and intimidation, according to a student at CUNY Staten Island, “makes it very difficult to organize events and activities, and is discouraging other students from learning about this very important issue . . . [and] raises concerns that SJP is being singled out for harassment and differential treatment from [the college] because we support Palestinian rights, equality and freedom.”148 Bureaucratic barriers imposed by university administrators chill student organizing for Palestinian rights.
Universities often respond to complaints from Israel advocacy groups regarding speech and events in support of Palestinian rights by opening investigations into the student and organizational sponsors of such events. Investigations convey official disfavor for the organizers, risk unconstitutional viewpoint discrimination, and imperil students who face the prospect of punitive sanctions that could undermine their college careers and jeopardize their future employment. Insufficient procedural safeguards generally afforded to the targets of such investigations place students in especially vulnerable positions.149
In the fall of 2014, for example, Loyola University Chicago charged SJP with conduct violations after some of its members lined up and attempted to register at a tabling event in order to raise awareness about Birthright Israel’s policy of excluding non-Jews. After receiving complaints from the campus Hillel group, administrators opened an investigation into SJP, even though the group had not sponsored the protest, and charged it with six violations, including bias-motivated misconduct, harassment and bullying, disruptive conduct, and violating the university’s demonstration policy by failing to register the event. The disciplinary process cleared SJP of five of the charges, but found that the group had violated the demonstration policy by failing to register the protest—despite testimony from students who said that they had only decided to line up the night before and did not consider their action a demonstration requiring advance approval. Loyola put SJP on probation for the school year, preventing it from obtaining university funding; required members to attend an intergroup dialogue training; and threatened to subject the group to further sanctions if members violated other school policies. Although Hillel had failed to properly register the Birthright Israel tabling event, also a violation, Loyola did not similarly discipline the group, requiring only that members meet with administrators to review the rules for student groups. (See Appendix entry for Loyola.)
In September 2014, Montclair State University’s student government sanctioned and fined a campus SJP chapter after receiving complaints that the group handed out “offensive” pamphlets at a tabling event. The brochures at issue contained statistics on Israeli settlement activity and home demolitions, a map depicting Palestinians’ loss of land from 1946 to 2000, and information on how students could get involved with SJP. The student government fined SJP five percent of its fall semester budget, ordered it to cease all “political propaganda” and “focus [its] events on the Palestinian culture,” and denied the group the opportunity to respond to the complaints or appeal the decision. The decision was overturned only after attorneys from the Foundation for Individual Rights in Education (FIRE) intervened. (See Appendix entry for Montclair State University.)
Northeastern University in Boston placed its SJP chapter on probation in April 2013 after students staged a brief walkout at an event featuring an Israeli soldier. Northeastern justified its decision by citing the group’s failure to register the protest seven days in advance, despite the fact that in 2010 the university had chosen not to punish an Israel-aligned student group for failing to register a similar protest. (See Appendix entry for Northeastern.)
A year later, in spring 2014, Northeastern suspended its SJP chapter after some of its members distributed mock eviction flyers to raise awareness about Israeli home demolitions. In the aftermath, Northeastern’s Hillel chapter published a letter on its website stating that it was working with campus police to “conduct a thorough investigation.” The ZOA immediately praised and claimed credit for the group’s suspension, and other Israel advocacy groups followed suit. The university also charged two SJP students with violating the code of student conduct by posing “a threat to self and others or to the proper functioning of the university,” failing to control guests, and violating university flyering policies. The university sustained the latter two charges after its investigation. Students with SJP told Palestine Legal that they felt singled out for punishment based on their viewpoint, noting that “the Handbook guidelines on flyer distribution in dormitories are flouted, if not flatly ignored, by other student groups, as well as individuals, on a regular basis.”150 (See Appendix entry for Northeastern.) Several other universities investigated student groups that distributed mock eviction flyers after allegations that the flyering targeted Jewish students, but found those allegations were unsubstantiated, and did not sanction the organizers. (See, for example, Appendix entries for Rutgers University, Florida Atlantic University, and New York University).
In spring 2013, administrators at Florida Atlantic University subjected SJP members to a four-month investigation and disciplinary process after a student interrupted a speech by an Israeli colonel to read a short statement about Israel’s war crimes and the group walked out of the event. Five students faced a range of charges, including “interfering with the free speech and academic freedom of others”—for an action that interrupted the program for about two minutes.151 To avoid a protracted legal battle and the specter of even more severe punishment, the students accepted onerous restrictions, though without conceding wrongdoing. The restrictions included a ban on holding leadership positions in any student group, probation for the remainder of their university careers, and a requirement that three of the students attend a diversity training designed by the ADL, which had led a campaign accusing the group of antisemitism the previous year. (See Appendix entry for Florida Atlantic University.)
The ever-present threat of sanctions for engaging in political organizing makes Palestine activists constantly wary of engaging in educational and other programming on campus.
Cancellations and Alterations of Academic and Cultural Events
Israel advocacy groups have also pressured universities, public libraries, and other institutions on- and off-campus to alter, censor, or cancel public lectures, discussions, and even art exhibitions and film screenings that they believe reflect poorly on Israel. (See, for example, Appendix entries for Brooklyn College, Rutgers University, San Jose State University, Columbia University, UC Santa Cruz, and the University of Pennsylvania.)
In March 2015, two days before the event “From Ferguson to Ayotzinapa to Palestine: Solidarity and Collective Action,” officials at the Missouri History Museum in St. Louis told organizers that the museum would cancel the event unless they agreed not to discuss Palestine.152 The museum claimed that the program it had approved did not mention Palestine and that the proposed format failed to “adequately address the complexities of these historical events.”153 Organizers refused to change the program, opting instead to hold the event at another venue. Documents received through a public records request show that the Jewish Community Relations Council (JCRC) had complained about the event to museum officials. Although the museum denies that the complaints factored into its decision, the documents reveal that museum officials suggested to JCRC and ADL that they help organize an alternative event on Israel/Palestine.154
In March 2015, Hillel International threatened legal action against Swarthmore Hillel after the student group planned to host an event supportive of BDS. The event, part of a twelve-school tour organized by the Open Hillel movement entitled “Social Justice Then and Now: Lessons from the Civil Rights Movement,”155 featured Jewish civil rights veterans Ira Grupper, Mark Levy, Larry Rubin, and Dorothy Zellner, who planned to make connections between their work in the Jim Crow South and current activism around Israel/Palestine.156 Hillel International, however, objected to “the speakers present[ing] or proselytiz[ing] their known anti-Israel and pro-BDS agenda,” warning that an event containing such content would violate its guidelines for campus affiliates.157 While the event took place as planned, the students decided to formally disassociate with Hillel and change their group’s name.158
Also in March 2015, Pitzer College in southern California attempted to prevent SJP from displaying a replica of Israel’s West Bank wall on campus—an installation that included information, pictures, and quotes about the Israeli occupation and its effect on Palestinians. The dean directed SJP to seek approval from the campus “aesthetics committee,” which denied the proposal after receiving complaints of antisemitism from a member of the Claremont Progressive Israel Alliance. Despite the denial, SJP notified the college that it planned to proceed with the installation as per the campus demonstrations policy. Administrators initially warned the group against defying college policy but, after a public outcry and a warning from Palestine Legal, allowed the demonstration to take place without interference. (See Appendix entry for Claremont Colleges, Pitzer.)
In August 2014, in the midst of Israel’s aerial and ground attack on Gaza, the Evanston Public Library in Illinois canceled a talk by Palestinian-American writer Ali Abunimah on his new book, The Battle for Justice in Palestine. Library staff notified Abunimah that director Karen Danczak had decided to cancel the event because they could not confirm a pro-Israel speaker, stressing the importance of “balance.”159 Abunimah, an active Twitter user with a significant following, along with his publisher, Haymarket Books, and supporters, undertook a social media campaign to call on the library to hold the event as originally scheduled. A week later, the library reversed course and Abunimah spoke to an overflow crowd.160
In April 2013, Northeastern University canceled a talk by Palestinian researcher Dr. Abu Sitta on the day of the lecture, asserting that SJP “fail[ed] to plan the event in a timely manner” and had violated school policy the previous day by protesting an event featuring an Israeli soldier. Since at least the previous winter, after a right-wing group released a documentary film alleging antisemitism on campus, the administration had faced significant pressure to restrict campus speech. SJP members, who told Palestine Legal that they organized the event according to the usual procedures, opted instead to hold the event at Northeastern’s law school. (See Appendix entry for Northeastern.)
In March 2011, UC Hastings College of the Law removed its name from the conference it had agreed to host, “Litigating Palestine: Can Courts Secure Palestinian Rights?” Israel advocacy groups had complained that the event was “one-sided” and “an anti-Israel political organizing conference using law as a weapon,”161 and Tammi Rossman-Benjamin, founder of the AMCHA Initiative, had threatened to file a Title VI complaint with the DOE against UC Hastings.162 In response, the board of directors held an emergency closed-door meeting on the eve of the conference and resolved to “take all steps necessary to remove the UC Hastings name and brand” from it. ^^ The dean canceled his opening address and the private Cummings Foundation withdrew all funding. (See Appendix entry for UC Hastings.)
Israel advocacy groups have also campaigned against Palestinian cultural events, as well as institutions that host them. In September 2011, the Oakland Museum of Children’s Art (MOCHA) canceled an exhibit of Palestinian children’s artwork depicting their memories of Operation Cast Lead in Gaza, after months of planning with the Middle East Children’s Alliance.163 The museum and its funders came under significant pressure from Israel advocacy groups, including the East Bay Jewish Community Relations Council and the Jewish Federation of the East Bay, to cancel the display before it opened. The groups claimed the exhibit would “potentially create an unsafe atmosphere for Jewish children.”164 MOCHA justified the cancellation by claiming that the children’s pictures contained inappropriate content, even though it had previously featured artwork by Iraqi children depicting the US occupation and by children who lived through World War II. The museum board’s chairman told a reporter that the museum “couldn’t handle the divisive issue” and the resulting pressure.165
Israel advocates have also pressured community institutions to cancel events that are critical of Israel. For example, in March 2011, the New York City LGBT Center canceled an Israeli Apartheid Week event and barred the organizing group from holding meetings at its space after an Israel-aligned donor threatened to boycott the Center, according to a press release from organizers.166 The Center also formally banned all Palestine-related activism on its premises, a moratorium that remained in place for nearly two years. The Center lifted the ban after an uproar over its refusal to host an event featuring a talk by longtime LGBTQIA rights activist and scholar Sarah Schulman on her book Israel/Palestine and the Queer International in February 2013.167 “I’ve been a public figure and a leader in the LGBT movement for 30 years – and I was banned from the LGBT Center because I was pro-Palestinian,” said Schulman.168 Nevertheless, the Center published vague new policies prohibiting “hate speech or bigotry,” which the group Queers Against Israeli Apartheid worried would lead the Center to continue “to police and shut down queer organizing in support of Palestinian queers, and Palestinian civil and human rights.” Several New York City politicians also put out a statement immediately after the Center publicized the new policy, opposing “attempts by any organization to use the center to delegitimize Israel and promote an anti-Israel agenda.”169
Pressure campaigns targeting artistic representations of the Palestinian struggle also led to the modification of two Palestine-themed murals in California. In 2007, the JCRC and the ADL complained to the San Francisco Arts Commission that a proposed mural depicting the Mexico/US border fence and Palestinians breaking through Israel’s wall threatened the Jewish community.170 The Latino group Homies Organizing the Mission to Empower Youth (HOMEY), which works with young people to overcome gang violence through training in the arts and political activism,171 designed the mural, entitled “Solidarity: Breaking Down Barriers.” In response to pressure, the Arts Commission held up funding for the project. Representatives of HOMEY met with representatives of concerned Israel advocacy organizations to hear their concerns and agreed to alter parts of the mural, including the depiction of a crack in the shape of historic Palestine and the image of a Palestinian wearing the traditional patterned kaffiyah scarf over her face.
In 2006, the JCRC attacked a mural honoring the late Columbia University professor Edward Said at SFSU. The mural depicted a key, which represents the right of Palestinian refugees to return to the homes they were expelled or fled from in 1948, and Hanthala, a refugee cartoon figure who represents dispossession and resistance, both important Palestinian symbols. JCRC claimed that the mural sent “a chilling message to Jewish students,” comparing the key to the conical hats and white robes of the KKK.172 After SFSU’s president indicated that he would not approve the mural, the artists altered the mural proposal and eliminated the Hanthala character and key from the final design.173
Threats to Academic Freedom
Israel advocacy organizations have launched numerous public campaigns targeting academics who criticize Israel, often with the aim of pressuring universities to investigate, punish, censor, deny tenure to, or dismiss them. Several organizations review Middle East–related course materials in search of “objectionable” content and monitor professors’ classes and extramural speech. In some cases, universities have ultimately sided with free speech and academic freedom principles—but often after lengthy and time-consuming investigations that take an emotional toll. In other instances, university administrators have acceded to outside pressure and smear campaigns and taken adverse action against individual scholars.
For example, in August 2014, the University of Illinois at Urbana-Champaign (UIUC) terminated Palestinian-American professor Steven Salaita from a tenured faculty position, following pressure from donors
who disagreed with his tweets criticizing Israel’s assault on Gaza that summer. Professor Salaita had accepted a faculty position at UIUC in October 2013 and, over the course of the subsequent ten months, had resigned from a tenured position at another university and undertaken significant effort and expense to prepare for his family’s move.174 Meanwhile, UIUC formally scheduled Salaita to teach two courses, assigned him an office, and set up his email account.175 Without any notice, explanation, or opportunity to be heard, he received an email from the university chancellor two weeks before the start of the semester notifying him of his termination.176 The termination left Professor Salaita “without a job, without health insurance, in his parents’ home, with his academic career in tatters.”177 According to Professor Salaita:
When I got that email I was just destroyed. I was crushed. Everything had been arranged for our move. Our son, he was two at the time, he had been enrolled in a daycare in Urbana, on campus in fact, and I felt this terrible sense that I had failed my family. . . . We were left without health insurance, first of all . . . and so we were constantly worried about what would happen if the need for medical attention arose and the fact that if something did happen to any of us, we could end up spending the rest of our life in severe debt.178
Administrators later acknowledged they made their decision because of his tweets, which they deemed to lack “civility” and not constitute “an acceptable form of civil argument.”179 In an interview with the Illinois newspaper the News-Gazette, UIUC Board of Trustees chairman Chris Kennedy characterized the remarks as antisemitic: “We were sort of stunned that anyone would write such blatantly anti-Semitic remarks.”180 Documents obtained through Freedom of Information Act requests revealed that UIUC acted after major donors had threatened to stop donating to the university because of Professor Salaita’s appointment.181 A prominent Israel advocacy organization, the Simon Wiesenthal Center, sent a letter to UIUC President Robert Easter protesting Salaita’s appointment.182 Evidence suggests that the Champaign-Urbana chapter of the Jewish Federation, another Israel advocacy organization, also played a role in the campaign against Salaita, notwithstanding the organization’s insistence otherwise.183
UIUC’s actions have been nearly universally condemned. The American Association of University Professors (AAUP) censured UIUC,184 a number of prominent academic organizations released statements in support of Professor Salaita, sixteen UIUC departments passed “no confidence” votes in the administration, and a boycott of the university has been endorsed by more than 5,000 academics and is still growing.185 A group of law professors wrote that Salaita’s termination “on account of his opinions on the Middle East affects not only him individually, but all current and prospective faculty at the University of Illinois insofar as it will have the predictable and inevitable effect of chilling speech—both inside and outside the classroom—by other academics.”186 Salaita, represented by CCR and the law firm Loevy & Loevy, filed a civil lawsuit against the university in January 2015, alleging violations of his constitutional rights and breach of contract. In August 2015, a federal judge denied UIUC’s motion to dismiss the lawsuit, finding that Salaita’s tweets “implicate every ‘central concern’ of the First Amendment.”187 (See Appendix entry for University of Illinois at Urbana-Champaign.)
As noted above, in the spring of 2014, the AMCHA Initiative launched a public campaign demanding that SFSU investigate the advocacy and scholarship of Palestinian-American professor Rabab Abdulhadi. AMCHA accused Abdulhadi of misrepresenting the nature and purpose of a research trip to Palestine and Jordan and abusing taxpayer funds to meet with “known terrorists.” AMCHA further insisted that a campus event Abdulhadi organized to discuss her trip threatened the safety of Jewish students and contributed to a “hostile environment” on campus. Although SFSU concluded that the allegations lacked merit,188 the campaign against Abdulhadi continued, as AMCHA complained in June 2014 to the State Controller about Abdulhadi’s alleged misuse of public funds. In August, SFSU proceeded to audit Abdulhadi’s travel expenses for the previous five years. (See Appendix entry for San Francisco State University.)
Israel advocacy groups have also targeted Middle East Studies programs themselves. In 2014, the Brandeis Center and the AMCHA Initiative published reports purporting to present evidence of rampant “anti-Israel bias” at Middle East Studies centers receiving federal funding under the Higher Education Act. They demanded that Congress and the DOE either defund the centers or engage in intrusive oversight to ensure that viewpoints sufficiently sympathetic to Israeli government policies would predominate in academic departments.189 The reports focused on UCLA’s Center for Near East Studies, misrepresenting the nature of the Center’s programming based on factual distortions and offering an overly broad definition of antisemitism that included criticism of Israel.190 (See Appendix entry for UCLA.)
Similarly, in May 2015, the ZOA wrote Columbia University’s Middle East Institute to demand detailed information about an upcoming workshop on Israel/Palestine, including the names and affiliations of all speakers, copies of all readings, and the names of films they intended to screen. In its letter, the ZOA claimed that the “one-sided” event was “riddled with anti-Israel bias” and violated the Higher Education Act’s “diverse perspectives” requirement. It further took issue with the workshop’s title, “Citizenship and Nationality in Israel/Palestine,” arguing that there is “no country called ‘Palestine.’” The workshop ultimately proceeded as planned. (See Appendix entry for Columbia.)
Attacks on academics for speaking on behalf of Palestinian rights or even teaching about or conducting research on Palestine date back over a decade. In 2004, Campus Watch, Hillel, and the ADL targeted Palestinian-American professor Joseph Massad, who teaches at Columbia University, when a film produced by an Israel advocacy group called the David Project featured Columbia students accusing Massad of anti-Israel bias and antisemitism.191 Propelled by media reports purporting to investigate Columbia’s professors for antisemitic bias,192 the controversy lingered on for years. Nonetheless, a university investigation found the allegations meritless.193 Professor Massad noted upon conclusion of the investigation:
The committee’s report was forced to acknowledge that I have been the target of a political campaign by actors inside and outside the university, as well as by registered and unregistered students inside and outside my classroom. It affirms that during the Spring of 2002, I was spied upon by at least one other professor on campus, that my class was disrupted by registered students and unregistered auditors, and that individuals and organizations outside the university targeted me, my class, and my teaching.194
Indeed, Professor Massad describes how faculty outside his department recruited students to initiate complaints against him and journalists misquoted his words in speeches they admitted not having attended.195 In order to protect him against the unfounded criticism, the AAUP, the New York Civil Liberties Union (NYCLU), and supporters defended Professor Massad in letters and petitions to the university.196 In describing the tactics used against him, Professor Massad stated in an interview in 2004, “These are the same old trends and they continue.”197
“The committee’s report ... affirms that ... I was spied upon by at least one other professor on campus, that my class was disrupted by registered students and unregistered auditors, and that individuals and organizations outside the university targeted me, my class, and my teaching.” - Columbia Professor Joseph Massad
In 2007, Barnard alumnae, supported by Israel advocacy organizations, launched a similar attack against Barnard professor Nadia Abu El-Haj as she sought tenure. Professor Abu El-Haj, a Palestinian-American anthropologist, had authored a book critiquing Israel’s use of archaeology to justify governmental policies, which had come under fire from Israel advocates. She had been approved for tenure by three out of four academic committees before the attacks began. A Barnard alumna living on an Israeli settlement started a petition, which adopted a line of critique later shown to be misleading and inaccurate. Several Israel advocacy organizations posted reviews of her work intended to attack her scholarship. A fellow faculty member in the history department wrote an article in the school newspaper and spoke at public lectures organized by the on-campus Israel advocacy group LionPAC to disparage her research. In response, prominent professors spoke out against the attacks and the university administration’s failure to defend academic freedom and to support Professor Abu El-Haj.
The universities eventually granted both Professor Massad and Professor Abu El-Haj tenure, but only after lengthy, contentious processes. These campaigns significantly affected the personal lives of both scholars; Professor Abu El-Haj removed her office contact information from the school directory out of concern for her own safety and now only shares her personal phone number with close friends.
A coordinated campaign in 2005 targeted another Palestinian-American professor at Columbia, Rashid Khalidi, the Edward Said Chair of Middle Eastern Studies and then-director of the Middle East Institute. The pressure included significant media attention depicting Professor Khalidi as a divisive scholar and public comments by then-congressman Anthony Weiner deeming Khalidi’s views “troubling” and “hateful.” New York City Department of Education Chancellor Joel Klein then barred the professor from a teacher training program on the Middle East. NYCLU denounced the dismissal as a clear violation of the First Amendment; a range of supporters, from students to the playwright Tony Kushner, protested the decision. Columbia president Lee Bollinger defended the renowned scholar forcefully and pulled Columbia out of the teacher-training program in protest over Professor Khalidi’s exclusion.201
In 2007–2008, North Carolina State University forced Terri Ginsberg, a Jewish film studies professor, to resign as the curator of a Middle East film series after comments she made at a campus film screening. At the event, she thanked the audience for attending a film representing a Palestinian perspective and advocated for additional public and classroom screenings of films critical of Israel.202 The university then denied her a tenure-track position for which she had been the top contender, according to a lawsuit she filed in response.203 North Carolina courts dismissed her employment discrimination and academic freedom claims on summary judgment, finding “no causal link between that speech and the University’s sudden decision not to hire her for a tenure-track position days later,” despite evidence suggesting otherwise.204 She then struggled to find an academic position. By 2012 she had applied for more than 150 jobs without receiving even one interview,205 as she became “veritably blacklisted from the university classroom.”206 She currently teaches at the American University in Cairo.207
Also in 2007, DePaul University denied tenure to Jewish professor Norman Finkelstein, a prolific critic of Israeli policies. Finkelstein drew the ire of Harvard law professor Alan Dershowitz after he criticized Dershowitz’s book, The Case for Israel. In response, Dershowitz “launched a national crusade to deny Finkelstein tenure,”208 writing a series of media articles condemning his work and even distributing information packets to faculty.209 Even though both Finkelstein’s department and a review committee endorsed his candidacy, the DePaul administration denied him tenure, citing his lack of “civility” and his “hurtful” and “inflammatory” rhetoric. Yet DePaul and Finkelstein put out a joint statement following the resolution of their dispute describing Finkelstein as “a prolific scholar and an outstanding teacher.”210 Finkelstein has not obtained an academic appointment, permanent or temporary, part-time or full-time, in the US since he was denied tenure in 2007.211
In 2010, Brooklyn College fired Kristofer Petersen-Overton, an adjunct professor and CUNY doctoral student in political science, a week before the start of the semester, after New York State Assembly member Dov Hikind complained that his syllabus criticized Israel in an unbalanced manner. Hikind also accused Petersen-Overton of promoting suicide bombings in his curriculum. The university reinstated Petersen-Overton after he received a wave of support from colleagues. (See Appendix entry, CUNY Brooklyn College.)
At UC Santa Barbara (UCSB) in February 2009, university officials charged Professor William Robinson with faculty misconduct after two students in his global affairs class complained about materials he assigned that were critical of Israel’s occupation of the West Bank and Operation Cast Lead.212 The ADL and the Simon Wiesenthal Center helped the students lodge a complaint with the Academic Senate, alleging that Professor Robinson had assigned antisemitic material unrelated to the course.213 The ADL sent letters to Professor Robinson and to university officials before the students submitted their complaints, while ADL national director Abraham Foxman organized a meeting with faculty and administrators to urge them to open a formal investigation.214 FIRE and the AAUP urged the university to drop the investigation; hundreds of scholars, students, and other organizations voiced support for Robinson.215 The university dismissed the case in June 2009 after finding that Professor Robinson had acted “in accord with the principles of academic freedom” when he assigned the readings to his students.216 StandWithUs revealed to the UCSB student newspaper that it considered the complaint at UCSB a test case for potential similar actions against Israel policy critics at other universities.217
Lawsuits and Legal Threats
Israel advocacy organizations have sued, threatened to sue, and filed complaints against activists and universities in an attempt to censor, punish, and suppress speech critical of Israel. Such lawsuits and legal threats enmesh supporters of Palestinian rights in complicated, prolonged legal battles that drain emotional, financial, and organizing resources.
Anti-BDS Legal Attacks
Israel advocacy organizations employ legal threats and suits to target BDS campaigns as a way to halt the movement’s progress.218 For example, after the ASA passed a resolution endorsing an academic boycott (“limited to a refusal on the part of the ASA in its official capacities to enter into formal collaborations with Israeli academic institutions”[219)] the author of the right-wing blog Legal Insurrection filed a complaint with the Internal Revenue Service to revoke the ASA’s tax-exempt status on the grounds that “racial discrimination” ran afoul of “its educational exempt purpose.”220 In December 2014, the Israeli organization Shurat HaDin filed a similar complaint with the IRS against the Presbyterian Church (USA) after it voted to divest from three companies that supply Israel with equipment used to subjugate Palestinians.221
Shurat HaDin also threatened to sue the ASA in early 2014 if it did not stop its “unlawful boycott efforts.” The letter argued that BDS “‘by its very definition,’ seeks to ‘make distinctions between, impose restrictions on and impose adverse preferences based on . . . Jewish racial and ethnic origin and Israeli ethnic origin’” and therefore violated numerous state and federal anti-discrimination statutes.222 These claims against the ASA misrepresent the academic boycott campaign and falsely equate criticism of Israel with discrimination against Jews. The boycott does not target individuals based on their religion, ethnicity, or national origin; it targets Israeli institutions or corporations because of their ties to state policy or their complicity in human rights violations223—a form of speech activity that US courts have consistently held enjoys First Amendment protection and does not constitute illegal or discriminatory activity.224
The right-wing American Center for Law and Justice also threatened to sue the ASA and the hotel that hosted its 2014 conference, alleging that the group violated a California anti-discrimination law by excluding Israeli academics. In fact, as the ASA clarified in a public statement before the conference and elsewhere, “This allegation is false. . . . We welcome Israeli academics to attend, and in fact several are already scheduled to participate in the conference program.”225 ASA director John Stephens explained that “no Israeli institution or anyone acting in a representative capacity has tried to register for the conference and been denied, nor been denied any other opportunity to attend or participate.”226 (See Appendix entry for American Studies Association.)
In 2011, Adalah-NY organized a flash mob at New York City’s Grand Central Station to Journey’s “Don’t Stop Believin’,” singing instead “Don’t Stop Boycottin’” and identifying companies profiting from Israel’s occupation. YouTube removed the video of the action from its website and Stephen Perry of Journey and the copyright owners sued Adalah-NY in federal court for copyright infringement, even though numerous parodies of the song were available at the time on YouTube.228
Also in 2011, five co-op members, with the support of the Israel advocacy group StandWithUs and the Israeli government,229 sued sixteen former and then-current board members of the Olympia Food Co-op after the board voted unanimously to boycott Israeli goods.230 The lawsuit alleged that the board exceeded its authority and breached its fiduciary duties by joining the boycott.231 A Washington state court dismissed the complaint after the board members filed a motion under Washington’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law providing for early dismissal of meritless suits targeting First Amendment–protected activity on an issue of public concern.232 The state appellate court affirmed the dismissal,233 but, in May 2015, the Washington Supreme Court remanded the case to the superior court after finding that the anti-SLAPP statute violated Washington’s constitution.234
Six months before the lawsuit had even been filed, the Israeli consul general in San Francisco, Akiva Tor, traveled to Olympia, Washington, to meet with StandWithUs co-chairs Rob Jacobs and Carolyn Hathaway and an attorney representing the plaintiffs, as well as some “Olympia activists.”235 After the filing of the suit, Danny Ayalon, then Israel’s Deputy Foreign Minister, said in response to a question about the involvement of the Israeli Ministry of Foreign Affairs in the lawsuit, “It is very important to make use of every means at our disposal, mainly legal means . . . And it’s true, we are using this organization, StandWithUs, to amplify our power.”236 Indeed, when the district court assessed fees and damages on five co-op members as part of their loss, StandWithUs boasted in a press release that it had posted the bond for them.237 That high-level Israeli government officials would take such an interest in supporting Israel advocacy groups’ challenge to a small, local food co-op’s boycott illustrates the heightened interest in muzzling BDS and other advocacy on behalf of Palestinian human rights.
Threats of such suits often have a significant chilling effect. In May 2015, for example, the board of the GreenStar Natural Foods Market co-op in Ithaca, New York refused to put a referendum to boycott Israeli goods to a binding membership vote on the basis that such a boycott, “if approved, could lead to lengthy and expensive litigation and would likely be found to be in violation of a provision in New York State’s Human Rights Law.”238 The following month, Shurat HaDin warned the president and general manager of the Park Slope Food Coop (PSFC) that “implementing BDS policies could result in severe criminal and civil liability for the PSFC and its officers.”239
Other Legal Claims
Israel advocacy groups have brought other lawsuits to stifle Palestinian rights activism and silence critics of Israel. In 2011, Shurat HaDin brought a federal lawsuit in New York to seize fourteen boats it alleged had been or would be used in a flotilla to Gaza to break the siege.240 Shurat HaDin voluntarily dismissed the case241 and then refiled it in federal court in Washington, DC; two years later, the court dismissed the case.242 Shurat HaDin also sued a US satellite communications provider to prevent it from providing services to the flotilla, claiming it would be providing material support for terrorism.243 Also in 2011, Shurat HaDin sued President Carter for \$5 million over his book, Palestine: Peace, Not Apartheid, alleging that it “contains false information and was intended to deceive the public and promote an anti-Israel agenda.”244
Others who speak out on behalf of Palestinian rights have been targeted by private individuals. In 2007, right-wing, Israel-aligned journalist Rachel Neuwirth sued liberal Jewish blogger Richard Silverstein and Stanford history professor Joel Beinin for libel in a California state court for calling her “Kahanist swine.” After prolonged litigation, a jury ruled in favor of Professor Beinin in June 2011,245 and a judge dismissed the case against Silverstein in August 2011.246
Title VI Discrimination Complaints and Allegations
Organizations such as the ZOA, the Brandeis Center, and the AMCHA Initiative (or their leaders) have filed at least six meritless complaints with the DOE alleging that campus expression in support of Palestinian rights creates a hostile educational environment for Jewish students, in asserted violation of Title VI of the Civil Rights Act of 1964.
Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin by institutions that receive federal funding.247 A university violates Title VI when it acts with deliberate indifference—in a way that is “clearly unreasonable”—to known acts of harassment, resulting in the denial of a student’s educational opportunities.248 The complaints—filed against UC Irvine, UC Santa Cruz, UC Berkeley,249 Rutgers University, Barnard College, and Brooklyn College (see Appendix entries)—generally allege that expression criticizing the state of Israel or advocating for Palestinian human rights constitutes “harassment” or “intimidation” that “targets” and creates a “hostile educational environment” for Jewish students on campus in violation of Title VI.
To date no such complaint has been sustained or found to have legal merit. The DOE dismissed cases against UC Irvine, UC Santa Cruz, and UC Berkeley in 2013 and Rutgers in 2014 with written determination letters stating that the First Amendment protects speech critical of the state of Israel and that such speech does not constitute a civil rights violation. The DOE also dismissed the complaint against Barnard in 2012, finding the evidence insufficient to substantiate the allegations. In a complaint against Brooklyn College, the Israel advocacy group and the university reportedly reached a settlement during the investigation stage in 2014.250
In 2009, Tammi Rossman-Benjamin, founder of the AMCHA Initiative, filed a Title VI complaint alleging that four proposed Palestine-related events at UC Santa Cruz—a film and panel discussion on Palestine, a teach-in on Gaza, a program on the costs of war on Israeli society, and an event on the invasion of Gaza (the latter two were canceled)—created a hostile environment for Jewish students.251 In 2013, the DOE found that the events “constituted (or would have constituted) expression on matters of public concern directed to the University community,” not actionable harassment.252 Similarly, the complaint against UC Berkeley, filed by attorneys serving on the Brandeis Center advisory board,253 alleged that the university violated Title VI because it failed to stop events such as a “mock checkpoint” dramatizing the interaction between Israeli soldiers and Palestinian civilians and debates about divestment from companies profiting from the Israeli occupation.254 Again, the DOE determined that these instances represent “expression on matters of public concern” and not “actionable harassment.” DOE further noted that, “in the university environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience.”255
Despite the DOE’s conclusion that these cases lack legal merit, certain Israel advocacy organizations have threatened to bring similar complaints against a number of universities in order to pressure them to censor students and faculty advocating for Palestinian rights. For example, in July 2013, the ZOA wrote Northeastern University suggesting that it could be in violation of Title VI for failing to adequately respond to incidents that created a hostile environment for Jewish and “pro-Israel” students. Their examples included student messages such as “ISRAEL IS AN APARTHEID STATE,” stickers equating Zionism with racism, and “one-sided” course readings “hostile to Israel.”256 The ZOA similarly threatened DePaul University in Chicago in 2015 after students held a fundraiser for a Palestinian community activist facing deportation. (See Appendix entry for DePaul University.)
Meritless Title VI complaints—as well as the threat of future complaints—chill speech critical of Israel because they create a platform to level accusations of antisemitism and encourage universities to restrict criticism of Israel. As the architect of the Title VI strategy and director and general counsel of the Brandeis Center Kenneth Marcus explains, these complaints seek to chill speech:
Seeing all these cases rejected has been frustrating and disappointing, but we are, in fact, comforted by knowing that we are having the effect we had set out to achieve . . . . These cases—even when rejected—expose administrators to bad publicity. . . . No university wants to be accused of creating an abusive environment. . . . Israel haters now publicly complain that these cases make it harder for them to recruit new adherents . . . . Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.257
Indeed, wary of the public relations fallout that Title VI complaints—and their invocations of “hostile” or “unsafe” environments—are designed to manufacture, administrators often opt to subject critics of Israel to extra scrutiny or restrict or condemn their speech. For example, in October 2014, the Jewish Weekly claimed that a “die-in vigil” drawing parallels between Ferguson and Gaza at CUNY’s John Jay College contributed to a “hostile environment” for Jewish students on campus.258 (The CUNY system had settled a Title VI complaint the previous academic year.) A week later, the college president sent a letter to the campus community condemning SJP’s activities and linking them with a rise in antisemitism in Europe.259
At UCLA in spring 2014, student groups asked candidates for student government to sign an “ethics pledge” to decline free trips to Israel sponsored by lobby organizations. The AMCHA Initiative argued that the ethics pledge harassed and bullied Jewish students, making them feel unsafe on campus,260 and demanded that the UCLA chancellor investigate and sanction SJP for “violations of law,” including alleged violations of Title VI.261 In response, the chancellor publicly condemned SJP’s ethics pledge as “intimidation.” (See Appendix entry for UCLA.) In March 2014, the student group Columbia SJP hung a banner stating “Stand for Justice, Stand for Palestine” that depicted a map of historic Palestine. The former president of Columbia’s Hillel initiated a campaign to take down the banner, complaining that it “threatens and makes many students on campus feel unsafe.” In response to complaints, Barnard, a prior target of a Title VI complaint, removed the banner and revised its banner policy. (See Appendix entry for Columbia/Barnard.) Likewise, a year after the ZOA threatened Northeastern with a Title VI complaint, administrators suspended the SJP chapter for distributing flyers raising awareness about Israeli home demolitions. (See Appendix entry for Northeastern.) In each of these incidents, allegations of harassment and intimidation of Jewish students came against the backdrop of a previous Title VI threat or investigation in the same university system.
Certain Israel advocacy organizations have leveraged their influence with federal, state, and local legislative bodies to restrict and disparage Palestinian rights advocacy. These legislative efforts serve to condemn or punish First Amendment protected activity such as advocating for boycotts. Lawmakers, sometimes at the behest of Israel advocacy groups, introduced at least eleven such measures in 2014262 and at least another sixteen in the first half of 2015.263
In 2014, Congress and a number of states introduced legislation in response to the ASA’s resolution to boycott Israeli academic institutions that would bar universities from receiving federal or state funding (or reduce state funding) if they provided any aid in support of academic groups that advocate boycotting Israel. All of these measures failed. In New York, for example, legislation championed by Assembly Speaker Sheldon Silver failed to move forward after civil liberties and civil rights organizations, the teachers’ union, and the New York Times all came out in opposition to the measure.264 Nonbinding resolutions condemning the academic boycott did pass legislative chambers in Florida, South Carolina, Maryland, and Pennsylvania.265
In 2015, state and federal lawmakers introduced a new wave of anti-boycott bills. In the House of Representatives, Illinois representative Peter Roskam and California representative Juan Vargas, backed by AIPAC,[266^] introduced an amendment to a trade bill aimed at imposing anti-BDS policies on ongoing free trade agreement negotiations between the US and its trade partners in the EU. The amendment “discourage[s] politically motivated actions to boycott, divest from or sanction Israel,” and defines BDS as “actions that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.”267 President Obama signed the measure into law on June 29, although the State Department reiterated that the Obama administration, like its predecessors since 1967, opposes Israeli settlements and “does not pursue policies or activities that would legitimize them.”268 AIPAC publicly applauded the amendment,269 which proponents consider “a hammer blow to the BDS movement—a campaign solely dedicated to the delegitimization and isolation of our ally Israel.”270
Lawmakers in the Illinois state legislature introduced an anti-boycott bill in February 2015.271 The bill, which effectively creates a blacklist of companies that boycott Israel and requires state pensions to divest from these blacklisted companies, passed in May and was signed into law in July.272 Although the measure was amended after Palestine Legal, CCR, the ACLU of Illinois, and other groups argued that a previous version unconstitutionally punished contractors on the basis of their political speech,273 the law still raises serious constitutional questions about the government’s use of financial levers to punish or discourage speech. The Jewish United Fund lobbied for the legislation, expressing hope that it “will become a model for similar action in many other states.”274 A similar bill was introduced in New Jersey in June 2015, along with nonbinding resolutions in other states condemning BDS.275
In New York, Assembly Member Charles Lavine also introduced a bill in June 2015 to bar New York from doing business or investing pensions in businesses that boycott Israel and to create a blacklist of such businesses and organizations.276 The bill failed, but the State Assembly passed a nonbinding resolution condemning the BDS movement,277 as did legislative bodies in Indiana, Tennessee, and Pennsylvania.278
In Pennsylvania, lawmakers also sought to cut off state funding to colleges or universities that boycott or divest from Israel.279 Palestine Legal, the ACLU of Pennsylvania, and CCR sent a letter to the sponsor identifying serious constitutional defects in the bill.280 As of this writing, it has yet to pass.
In South Carolina, Governor Nikki Haley signed into law a bill aimed at quashing boycotts of Israel.281 It prohibits any government or agency in the state from doing business with companies that engage in boycotts motivated by the race, color, religion, gender, or national origin of the targeted person or entity. Although facially neutral and inapplicable to BDS efforts motivated by concerns about human rights, state representative Alan Clemmons, who introduced the bill, described its real intent as being to target First Amendment–protected boycotts of Israel:
Discriminatory boycotts have historically been used as a form of economic warfare to forward the purposes of hatred and bigotry. . . . In this day and age, no group better demonstrates this fact than the Boycott, Divestment and Sanctions (BDS) movement in its effort to harm our great ally, Israel. . . . South Carolina has now become the first of what will undoubtedly be many states to enact legislation that confronts BDS.282
Local and state legislatures in California have also introduced measures to encourage universities to curtail activism for Palestinian rights. In 2012, the State Assembly passed a resolution that condemned speech critical of Israel, recommended that the University of California adopt an overly broad definition of antisemitism, now referred to as the “State Department definition,” that includes speech critical of Israel, and called on the university to punish such expression.283 In July 2015, the full California legislature passed a second measure, a concurrent resolution, that invoked the State Department definition of antisemitism.284 After Palestine Legal, CCR, students, and other advocates expressed concern to lawmakers that the State Department definition conflated criticism of Israel with antisemitism and would result in the censoring of constitutionally protected speech critical of Israeli policies,285 legislators amended the resolution to clarify that it did not intend to diminish the right to express speech that is “critical or supportive of the policies of any country.” Nonetheless, AMCHA urged the University of California to “enforce” the resolution.286
In 2014, the Los Angeles City Council introduced a resolution condemning a UCLA student campaign that asked student government leaders to sign a pledge to refuse free trips to Israel from Israel advocacy groups. The resolution also condemned students for filing a case with the student judicial council arguing that accepting such trips to Israel represented a material conflict of interest under UCLA student bylaws. The Los Angeles City Council resolution described the students’ efforts as “harassment” and “bullying” and urged the university to refer such cases to law enforcement.287 After an outcry from students and a letter from Palestine Legal and CCR,288 the City Council did not vote on the resolution. SJP at UCLA described the resolution as “a disturbing attempt to intimidate and silence students concerned with the integrity and transparency of their [student] council.”289
Criminal Investigations and Prosecutions
In some instances, campaigns to falsely depict Palestinian rights advocates as antisemitic and linked to terrorism have attracted the attention of law enforcement, driving criminal investigations and prosecutions on charges ranging from disrupting a meeting to material support for terrorism. In one particularly dramatic example from February 2011, the Orange County district attorney (DA) charged eleven UC students with criminal misdemeanor counts of conspiring to disrupt a public meeting and disrupting a public meeting, after students read brief statements and walked out of a February 2010 speech by Michael Oren, then Israeli ambassador to the United States, at UC Irvine. The DA’s handling of the case drew allegations of misconduct: before filing charges, the DA’s office met with Simon Wiesenthal Center rabbi Aron Hier, along with UC Riverside’s Hillel director, to discuss the matter. During the pretrial period, the judge reprimanded the DA for “tainting the jury pool by labeling the student defendants as anti-Semitic, declaring them guilty and other ‘ethically irresponsible’ statements.”290 The DA also illegally used subpoenas intended for felony cases to obtain confidential attorney-client communications in the misdemeanor case.291
The judge eventually ordered the DA to remove the main investigator and deputies from the case.292 Nevertheless, on September 23, 2011, ten of the students were found guilty and sentenced to three years’ probation, fifty-six hours of community service, and fines. On appeal, the students challenged, among other things, the unconstitutional vagueness of the law used to prosecute them for protected speech activity, but the California Court of Appeals denied the students’ appeal in March 2014. (See Appendix entry for UC Irvine.)
In September 2010, FBI agents served grand jury subpoenas on twenty-three anti-war and pro-Palestinian activists in Minneapolis and Chicago (the ‘Midwest 23’), who associated with groups the FBI had infiltrated for years.295 Agents raided the homes of several of them, seizing electronics, photographs, address books, and letters.296 Agents procured the search warrants to gather “evidence related to ‘providing, attempting and conspiring to provide material support’” to designated terrorist organizations including Hezbollah, the Popular Front for the Liberation of Palestine, and the Revolutionary Armed Forces of Colombia.297 The affidavit used to secure the warrants, which a court ordered unsealed in February 2014, consisted primarily of speech taken out of context, including jokes used to portray the activists as revolutionaries preparing for armed confrontations.298 In fact, the affidavit shows that an undercover special agent repeatedly attempted to convince them to send \$1,000 to a designated terrorist organization.299 All of the subpoenaed activists refused to testify before the grand jury and, while no indictments have been issued to date, prosecutors have said that the investigation remains ongoing.
Activists and their attorneys believe that the investigation led to the indictment of Rasmea Odeh, a colleague of one of the targets of the raids at the community organization the Arab American Action Network (AAAN). The FBI requested information from Israel about Odeh while investigating the AAAN.300 The DHS arrested Odeh, a Chicago civil rights advocate and widely respected organizer in the Arab-American community, for the highly discretionary and rarely prosecuted offense of lying on a naturalization form—in this case for failing to indicate on her naturalization form a decade prior that an Israeli military court had convicted her in 1970 of an offense she maintains she did not commit and only confessed to under severe torture in prison.301 In November 2014, a jury convicted her after a judge barred her from referencing her torture at the hands of Israeli agents and the trauma it produced during the naturalization process, even though the prosecution relied on Israeli military court documents and repeatedly referred to the crime they alleged she had committed.302 Odeh spent nearly a month in a county jail, much of that time in solitary confinement,303 until the judge agreed to release her on bond pending her sentencing. In March 2015, she received a sentence of eighteen months in prison, denaturalization, and deportation, but she has appealed the conviction and the sentence.304
Prosecutors have also relied upon “material support for terrorism” laws in other cases to criminalize criticism of Israel and charitable giving to Palestinians abroad. Such allegations predate 9/11 and even the development of the material support doctrine in the late 1990s and early 2000s.305 For example, in 1987, immigration authorities arrested a Nigerian and seven Palestinian student activists who came to be known as the LA 8, and sought to deport them for their alleged ties to the Popular Front for the Liberation of Palestine (PFLP), a Marxist group. Prosecutors charged them under an anti-communist statute, but a federal court found the statute unconstitutional in 1989. Prosecutors then charged two of the eight “under a new immigration law, making material support of terrorist organizations a deportable offense.”306 The evidence against them consisted of “lawful First Amendment activities, including distributing newspapers, participating in demonstrations and organizing humanitarian aid fundraisers.”307 After a two decade-long effort to deport the individuals, a legal ordeal involving four separate appearances before the Ninth Circuit Court of Appeals and one at the US Supreme Court, the Board of Immigration Appeals finally dismissed the case in 2007, calling it “an embarrassment to the rule of law.”
The expansion of material support laws since the mid-1990s and in the aftermath of 9/11 has enabled prosecutors to ramp up their efforts to prosecute individuals for purported association with designated terrorist groups, even when they lack evidence to do so. In one of the more high-profile cases, prosecutors in 2003 charged University of South Florida professor Sami al-Arian with providing material support to a terrorist organization.308 The case relied almost entirely on Professor al-Arian’s First Amendment activities, including his speeches, writings, wiretapped phone conversations, and other advocacy.309 Although acquitted of the most serious charges after a lengthy trial and years in solitary confinement at a maximum security prison, prosecutors charged him with civil and criminal contempt for refusing to testify at a grand jury hearing after he pled guilty to lesser charges to avoid further jail time. Prosecutors only dismissed charges against him in June 2014, after he spent five years under house arrest while the charges remained unresolved, clearing the way for his deportation under the terms of his plea agreement.310 The US deported him to Turkey in February 2015.311
Prosecutors also relentlessly pursued a case against five Palestinian-Americans involved with the Holy Land Foundation, which was the largest US charity providing humanitarian aid to Palestinians before 9/11. Prosecutors relied on testimony from anonymous agents of Shin Bet, Israel’s internal security service, for their claims that the men sent aid to zakat (charity) committees in Palestine that they asserted were “under the influence of” Hamas.312 After a mistrial, the government secured a conviction in the second trial—even though the government had failed to furnish evidence that the funds supported violent acts and USAID had funded the same committees—and the men received sentences of up to sixty-five years.313 In October 2012, the Supreme Court refused to review the case, despite the many constitutional issues implicated, including denial of the right to confront the anonymous Israeli secret service agents in violation of the defendants’ Sixth Amendment rights.314
The government has also used material support laws to threaten groups seeking to deliver humanitarian aid peacefully as part of the 2011 Freedom Flotilla to Gaza. In 2010, Israel advocacy groups threatened Rutgers University, asserting that approval of a fundraiser for the US Boat to Gaza may violate material support laws, and Rutgers prevented the raised funds from being used to support the boat. (See Appendix entry for Rutgers University.) A June 24, 2011 State Department statement on the Gaza Flotilla declared that “delivering or attempting or conspiring to deliver material support or other resources to or for the benefit of a designated foreign terrorist organization, such as Hamas, could violate US civil and criminal statutes and could lead to fines and incarceration.”315 Israel advocates have since accused many SJP chapters that hosted speakers from the Gaza Flotilla of “supporting terrorism,”316 only furthering unsubstantiated claims of associations between Hamas and human rights advocates like SJP and the Flotilla organizers.317
Recent revelations have further demonstrated that the US government shares significant amounts of intelligence data with Israel. While the full extent of collaboration and coordination between US and Israeli government agencies in both surveillance and criminal prosecutions is unknown, information-sharing exposes activists and their relatives in Israel and the Occupied Palestinian Territory to danger.318 Israeli authorities have also actively assisted in some prosecutions, providing leads, evidence against defendants, and even Israeli intelligence agents to serve as experts and testify anonymously in proceedings.319
THE LEGAL IMPERATIVE TO PROTECT DISSENT
Nearly every incident documented by Palestine Legal in this Report involves some form of constitutionally protected speech, association, or expressive activity: a lecture, a protest, a street-theater action, a flyering effort, a boycott or divestment campaign, a fundraiser, or the wearing of a kaffiyah. By censoring, punishing, or chilling such protected expression, universities, colleges, government bodies, and other institutions threaten core First Amendment principles.320
First Amendment protection extends beyond mere “speech,” reaching activities intended as expressions of a particular message.321 Boycotts “to bring about political, social and economic change” involve speech, association, and petition activities covered by the First Amendment.322 As the Supreme Court has repeatedly made clear, precisely because speech critical of the status quo is frequently resented, speech does not lose any First Amendment protection simply because some deem it offensive, hurtful, or uncivil:
[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. . . . That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.323
The Supreme Court has held that burning the American flag, burning a cross, holding signs that say “God Hates the USA/Thank God for 9/11” at a fallen soldier’s funeral, and wearing a jacket with the words “Fuck the Draft” in a state courthouse are all constitutionally protected speech.324
By censoring, punishing, or chilling such protected expression, universities, colleges, government bodies, and other institutions threaten core First Amendment principles.
These holdings reflect the United States’ “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”325
Accordingly, speech on matters of public concern, like Israel/Palestine issues, “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”326 That protection must be especially guarded at institutions of higher learning—institutions designed to teach critical thinking, challenges to orthodoxy, and tolerance of ideas. Because of “the dependence of a free society on free universities,”327 the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.”328 Accordingly, the First Amendment binds public colleges and universities329 and even governs actions taken by a student government that may be attributed to the university itself.330 States such as California have extended First Amendment protections to students at private universities.331 Many private universities have also adopted policies that recognize the importance of free speech and expression on their campuses.
Furthermore, public officials and colleges may not burden a particular viewpoint, even when attempting to regulate the “time, place and manner” of events, protests, and other expressive conduct.332 The Supreme Court has made clear that “discrimination against speech because of its message is presumed to be unconstitutional.”333 Thus, students advocating for Palestinian rights at public universities have the right to use classrooms, lecture halls, and other spaces and resources on a non-discriminatory basis.334 Restricting that right casts exactly the type of “disapproval on particular viewpoints” the Supreme Court warned “risks the suppression of free speech and creative inquiry [on] university campuses.”335
So many of this country’s cherished First Amendment principles, which are broadly protective of dissident speech, emerged in the cauldron of the civil rights and anti-war movements of the 1960s and 1970s, as the Supreme Court recognized that government restrictions on unpopular speech represent unreasonable measures to prevent challenges to the status quo or timely claims for social justice. The Court also no doubt recognized that authorities’ asserted concern regarding the civility or offensiveness of speech too frequently—and ultimately impermissibly—masks disagreement with the substantive claim for justice or critique of the status quo underlying that message. Judge Harry Leinenweber firmly rejected the University of Illinois at Urbana-Champaign’s attempt to justify its termination of Professor Salaita for tweets critical of Israel’s bombing of Gaza on the basis of its tone:
The university’s attempt to draw a line between the profanity and incivility in Dr. Salaita’s tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s “Fuck the Draft” jacket protected by the First Amendment. Cohen v. California, 403 U.S. 15, 26 (1971). The tweets’ content were certainly a matter of public concern, and the topic of Israeli-Palestinian relations often brings passionate emotions to the surface. Under these circumstances it would be nearly impossible to separate the tone of tweets on this issue with the content and views they express. And the Supreme Court has warned of the dangers inherent in punishing speech on public matters because of the particular words or tone of the speech.336
Today, government officials, colleges, universities, and other institutions ignore this critical democratic value—and clearly established First Amendment law—when they accede to pressure from certain Israeli groups to limit speech and protest of Israeli government policies. An issue as significant as Israel/Palestine requires full, honest, and fair debate, not one in which one side is silenced, chilled, and punished. This country’s constitutional commitment—and the weighty questions presented by the situation in Israel/Palestine—require it.
To College and University Administrators
- Uphold your school’s educational mission to advance knowledge and foster an environment that invites, not discourages, open debate, as recognized under the First Amendment and principles of academic freedom.
- Do not investigate faculty members or students based solely on lawful expression critical of Israeli state policies.
- Conduct investigations in a fair, impartial, and expeditious manner that ensures due process and minimizes any adverse impact on First Amendment rights or academic freedom.
- Refrain from punishing or otherwise disproportionately burdening students and faculty for scholarship, speech, or other expressive conduct supporting Palestinian rights or critical of Israel.
- Do not require student groups to pay “security fees” when administrators or members of the public deem their events “controversial”; allocate funding for security when it is legitimately required instead of imposing the burden on student groups in ways that may limit the exercise of their First Amendment rights.
- Review campus regulations to ensure that they do not unlawfully burden free speech rights and are not being discriminatorily applied on the basis of viewpoint and revise where necessary.
- Include affected students, including SJP chapters, in discussions around the political climate on campus and solicit their input on issues, policies, and decisions that affect them and their protected expression.
To the US Congress and State and City Legislatures
- Reject legislation that targets individuals or organizations on the basis of political viewpoint or lawful political expression, such as criticizing Israeli government policies or promoting divestment or boycott of Israel.
- Oppose legislation that restricts or penalizes protected protest or expression, like boycotts or socially responsible investment policies.
- Reform material support for terrorism laws to safeguard nonviolent First Amendment–protected activities, including political and human rights advocacy, distribution of literature, and philanthropy.
- Conduct hearings on the silencing and chilling of speech supporting Palestinian rights or critical of Israel.
To the United States Department of State
- Revise the departmental definition of antisemitism to remove the vague and overbroad language that characterizes “delegitimizing,” “demonizing,” or applying a “double standard” to Israel as antisemitic.
To the United States Department of Education’s Office for Civil Rights
- Clarify that expression criticizing the discriminatory or otherwise unlawful policies or practices of local, state, federal, or foreign governments does not give rise to a hostile environment under Title VI of the Civil Rights Act.
To Law Enforcement
- Cease surveilling, opening investigations, or bringing criminal charges solely on the basis of political viewpoint or expressive conduct protected by the First Amendment.
To Students, Professors and Activists
- Document and notify Palestine Legal of incidents of censorship, pressure, or discriminatory treatment you have encountered for speaking out about Palestinian rights.
- Contact Palestine Legal in advance of an event, talk, or protest if you have any questions or concerns.
- Share your experience(s) with school administrators, institutional leaders, and other decision makers, and call on them to take concrete steps to protect your speech rights.
To Academic Associations, Student Governments, and Other Academic Advocacy Bodies
- Publicly oppose legislative and other efforts to suppress advocacy for Palestinian rights, including student activism, faculty speech, and BDS.
- Support members who face backlash for speaking out on Palestinian rights.
To the General Public
- Share this report with others—university administrators, public officials, members of Congress, family, friends, and neighbors—and tell them how the suppression of advocacy for Palestinian rights affects fundamental constitutional values.
- When you hear about an incident of suppression of Palestine advocacy, write to decision makers and media outlets to oppose it and contribute to efforts to support the targeted individual.