Good or Bad for America?

Washington, DC - March 18, 2016 at the National Press Club

"America is a thing that you can move very easily..." Binyamin Netanyahu, 2001

Concerted attempts to silence criticism of Israel in the U.S.

By Maria LaHood

Janet McMahon: Our next panelist is Maria LaHood, a deputy legal director at the Center for Constitutional Rights, with expertise in constitutional and international human rights. She works to defend the constitutional rights of Palestinian human rights advocates in the United States. The cases she’s worked on include Davis vs. Cox, defending the Olympia Food Co-op board members for boycotting Israeli goods; Salaita vs. Kennedy, in which she represented Prof. Steven Salaita, whose offer of a tenured position at the University of Illinois at Urbana-Champaign was withdrawn for tweets critical of Israel; and CCR vs. DoD, seeking U.S. government records under the Freedom of Information Act regarding Israel’s 2010 attack on the flotilla to Gaza—about which we will hear more from Huwaida Arraf today.

Maria works closely with Palestine Legal to support students and others whose speech is being suppressed for their Palestine advocacy around the country. She also works on the Right to Heal Initiative with Iraqi civil society and Iraq veterans seeking accountability for the lasting health effects of the Iraq war.
Her past work at CCR includes cases against United States officials such as Arar vs. Ashcroft, Al-Aulaqi vs. Obama and Al-Aulaqi vs. Panetta—the last two concerning the targeted killing of American citizen Anwar Al-Aulaqi; against foreign government officials, such as Matar vs. Dichter and Belhas vs. Ya’alon; and against corporations, such as Wiwa vs. Royal Dutch/Shell and Corrie vs. Caterpillar—which sold Israel the bulldozer used to kill Rachel Corrie.

Prior to joining the Center for Constitutional Rights, Maria advocated on behalf of affordable housing and civil rights in the San Francisco Bay area. A graduate of the University of Michigan Law School, she was named a finalist for the 2010 Public Justice Trial Lawyer of the year. We’re very pleased to have Maria LaHood join us today to discuss legal challenges to advocates for Palestinian rights.

Maria LaHood: Thank you, Janet. Thanks, IRmep. And thank you to the Washington Report for putting on this terrific conference today, and thanks to all of you for being here. I want to especially thank Tareq for his work. People ask, where is the hope for change in this country? And I present to you Tareq and all the students who are advocating for Palestinian rights. [Applause] That’s where the hope for change is for me.

As the movement for Palestinian rights has grown in the U.S., so too have concerted efforts to silence any criticism of Israel, particularly on U.S. campuses. Students are being stymied, investigated and disciplined; the faculty are being punished; and activists have been sued and arrested. I’m going to talk about—focus on a couple of those cases, the first one being that of Prof. Steven Salaita.

He’s an esteemed Palestinian-American professor and prolific scholar, including on Zionism. Professor Salaita was a tenured professor at Virginia Tech University and was offered a tenured position at the University of Illinois Urbana-Champaign in its Native American Studies program. He accepted the offer. He resigned from his tenured position and was set to start at U of I in the summer of 2014. His wife quit her job. They put money down on a condo. They pulled their son out of school. Salaita’s classes were listed and his textbooks were ordered.
That summer, the summer of 2014, Professor Salaita, like many, watched with anger and horror as Israel devastated Gaza. He tweeted about it. Just two weeks before he was set to start at U of I, he got an e-mail from the chancellor, essentially telling him not to bother to show up. She said that his appointment would not be recommended for approval by the Board of Trustees, referring to a provision in his contract that his appointment would be subject to approval by the board.

Professor Salaita and his family were left without jobs, income, health insurance, and a home. How did this happen? A self-described Zionist had been monitoring Professor Salaita’s tweets, the right-wing blog Legal Insurrection published some of them, and groups like the Simon Wiesenthal Center, the Jewish Federation, and the Anti-Defamation League got involved. Wealthy donors to the university threatened to withhold their donations.

Before deciding to fire Professor Salaita, the chancellor went out of her way to meet with those wealthy donors. Yet she didn’t bother to consult Professor Salaita, the hiring committee that vetted him, or the department he was joining. Chancellor Wise and the trustees later admitted that their decision was based on his speech, claiming they viewed his speech as uncivil, and a couple of the trustees also called it anti-Semitic.

As we know, the subjective label of incivility has historically been used to demonize groups and to suppress dissent. And labeling criticism of Israel anti-Semitic is a common tactic used to attempt to silence it. Board approval, by the way, happens in September, after new faculty have already starting teaching. It’s always been a line-item vote where everyone is approved at once. Not so with Professor Salaita. Led by the chair of the board, Christopher Kennedy, the trustees voted to reject his appointment. The Simon Wiesenthal Center later awarded Kennedy its Spirit of Courage award for leading the board in firing Salaita.

So CCR and our co-counsel in Chicago sued the university, the trustees and top administrators, seeking Professor Salaita’s reinstatement and damages. They had violated his First Amendment right by retaliating against him for his speech. They violated his due process rights by failing to give him notice and opportunity to be heard, and they violated his employment contract.

The university argued primarily that he didn’t have a contract because of this clause. The court, however, refused to dismiss the case, finding there was clearly a contract. If there weren’t, the judge said, the entire American academic hiring process as it now operates would cease to exist. No one would quit their jobs and move to a new place on a meaningless offer. The court also found that Professor Salaita’s tweets implicate every essential concern of the First Amendment. It was political speech in a public forum and the university’s actions were based on its content, which could not be separated from the tone, which is what the university had argued: It’s not his views, it’s the way he said them in a 140-character tweet.

The chancellor resigned a few hours after the decision was issued. [Applause] The next day, it came out that she and other university officials were using personal e-mail for university business that they didn’t turn over in response to Freedom of Information Act requests. In fact, an e-mail from the chancellor revealed that they were using their private e-mail because of the threat of litigation, and that she was even deleting her e-mails. The provost resigned a few weeks later.

Last fall, Professor Salaita became the Edward Said chair at the American University of Beirut and was ready to move on. He ultimately settled his case for $875,000 against the university. [Applause] It was, I think, a victory not only for academic freedom but for the Palestinian rights movement.

One of the most inspiring aspects of his case was the incredible grassroots support for him. Thousands signed petitions, 5,000 professors boycotted the university, and 16 U of I departments voted no confidence in the administration. His termination was widely condemned by academic organizations, and the American Association of University Professors censured the University of Illinois. Professor Salaita went on tour to speak on more than 50 campuses, finding a larger platform for his critical analysis of Zionism and settler colonialism than he previously had. The movement for Palestinian rights cannot be silenced [applause], but efforts to do so unfortunately are only increasing.

Another case I want to talk about is the Olympia Food Co-Op, which is a local food co-op in Olympia, Washington, home to Rachel Corrie and her family and Evergreen State College, where she went to school. The co-op is a nonprofit organization. It has a long history of doing social work and promoting political self-determination. It has adopted various boycotts over the years, but in 2010 the board voted by consensus to boycott Israeli goods. More than a year later, 5 of the 22,000 members sued 16 volunteer board members, those who passed the boycott and those who were sitting on the board when the suit was brought. They claimed that they breached their fiduciary duties and acted beyond their authority. The case seeks to end the boycott, as well as personal damages against the 16 individuals.

Six months before the lawsuit was filed, the Israeli Consulate General to the Pacific Northwest, based in San Francisco, traveled to Olympia, Washington to meet with the co-chairs of StandWithUs Northwest, an attorney representing the plaintiffs, and some Olympia activists. StandWithUs is a nonprofit, whose mission is to support Israel around the world. It’s one of many groups trying to suppress speech critical of the Israeli government in the U.S. It maintains dossiers on people who advocate for Palestinian rights, including some of us here.
Not long after that meeting, nearly a year after the board had passed the boycott, the 5 co-op members sent a letter opposing the boycott and threatening to sue the 16 board members unless they rescinded the boycott immediately, and threatened that they would be held personally liable and that the process would become considerably more complicated, burdensome and expensive. The boycott, again, was passed in 2010. This was six years ago.

The board responded by asking them to specify how they had violated the co-op’s governing documents and by inviting them to initiate a ballot process, to put proposals to a membership vote as provided by the bylaws. They refused to do so and instead filed a lawsuit.

Right after the lawsuit was filed, StandWithUs Northwest listed it as an agenda item for its executive committee meeting, under the category of project status. It posted online that StandWithUs filed a lawsuit against the Olympia Food Co-op, and that it was a byproduct of the partnership between StandWithUs and the Israeli Ministry of Foreign Affairs, spearheaded by Israeli Deputy Foreign Minister Danny Ayalon. When Danny Ayalon was asked if the Israeli Ministry of Foreign Affairs was involved in the lawsuit, he responded, “It’s very important to make use of every means at our disposal, mainly legal means. And it’s true, we’re using this organization, StandWithUs, to amplify our power.”

CCR and our co-counsel in Seattle represent the board members who were sued, and several years ago we filed what’s called an anti-SLAPP motion. SLAPP is a Strategic Lawsuit Against Public Participation. About half the states in this country have laws to deter the abuse of courts to chill free speech. The law permits early dismissal of the suit when it challenges public statements on an issue of public concern. It provides cost and attorney’s fees, and in Washington State it provided a $10,000 damage award for each defendant.

The Trial Court dismissed the case as a SLAPP, finding it was meritless. It held the board had the authority to pass the boycott and awarded $10,000 to each of the 16 defendants. Plaintiffs appealed. The appeals court affirmed. And then they petitioned to the Washington Supreme Court. The Washington Supreme Court struck down the anti-SLAPP statute last year as unconstitutional, finding that it violated the right to jury trial under the Washington Constitution, and remanded the case back to the Trial Court. So this year we are back in the Trial Court again, nearly five years after the suit was first brought.

We moved to dismiss the case again, arguing that the boycott was permitted under the governing documents of the co-op, which a Trial Court previously and the Appellate Court had already decided was right, and the motion to dismiss, unfortunately, was denied. So the case goes on. Meanwhile the board members, only one of whom is actually still a board member, have been subject to the burden of discovery, and the intimidation and harassment of this meritless lawsuit continues. But the Olympia Food Co-Op’s boycott of Israel still goes on.
These are not isolated cases, but just two of numerous incidents in which people who dare to speak out for Palestinian rights are attacked. In September, CCR and our partner Palestine Legal issued this report entitled The Palestine Exception to Free Speech: A Movement Under Attack in the U.S. It documents widespread and growing efforts in the U.S. to punish and silence protected advocacy on behalf of Palestinian rights and speech that is critical of Israel, including BDS, of course. It details the tactics as well as many case studies. It’s available on both of our websites, ccrjustice.org and palestinelegal.org. And I’ll have materials later on the tables in the other room.

Last year, Palestine Legal responded to 240 incidents of suppression, including baseless legal complaints, administrative disciplinary actions, bureaucratic barriers, false accusations of terrorism and anti-Semitism, etc. Eighty percent of those incidents targeted students and professors on 75 different campuses. And this is just the tip of the iceberg of the suppression that’s going on.

At schools around the country, students are investigated for protests when they do mock eviction flyering to raise awareness about home demolitions. Charges inevitably followed that they were targeting Jewish dorm rooms. These charges have never been substantiated, but of course lead to school, and sometimes even criminal, investigations.

The Irvine 11 were criminally convicted for disrupting a meeting, for walking out of a speech by then Israeli Ambassador to the U.S. Michael Oren. Several schools have faced Title VI complaints by the Zionist Organization of America claiming essentially that advocacy on campus for Palestinian rights creates an anti-Semitic hostile environment. Even though decisions dismissing the complaints have said that the First Amendment protected expression alleged[?], can’t support a Title VI violation, these complaints are still being filed and universities respond by conducting investigations and cracking down on speech.

These attacks often follow pressure or complaints from groups—not only the ZOA, but the Brandeis Center, the AMCHA Initiative, Shurat HaDin, StandWithUs, the Simon Wiesenthal Center, the Anti-Defamation League, etc. Netanyahu has launched a full attack on BDS, and Israel has declared it’s the biggest threat it faces. Millions and millions of dollars are being spent to combat criticism of Israel, and BDS in particular. Divestment resolutions on campuses all over the country has faced opposition not on their merits, but because of claims they’re anti-Semitic.

When the American Studies Association passed a resolution to endorse the call for boycott of Israeli academic institutions, they received death threats. Shurat HaDin, the Israel Law Center, threatened to sue them if they didn’t end the boycott. Shurat HaDin admits that it takes direction on which cases to pursue and receives evidence from Mossad and Israel’s National Security Council.

Also, in response to the ASA resolution, legislatures around the country proposed bills to take away state funding from colleges that use any state aid to fund any academic organization that advocated the boycott of Israel. Mobilization prevented those bills from being passed. But now there’s a new slate of anti-boycott legislation that’s been introduced in about 15 states. Some states, as was mentioned earlier, have passed non-binding resolutions condemning BDS, but those have no legal effect.

But last year, Illinois passed a law requiring the establishment of a blacklist of foreign companies that boycott Israel and compels the State Pension Fund to divest from those companies. Florida passed a similar bill this year which is awaiting signature by the governor. It also prevents state contracts within any such companies if the contract is over a million dollars. New York has similar legislation pending that’s even worse than those. Congress has introduced legislation to try to protect these kinds of state laws from federal pre-emption challenges, but of course they can’t prevent a First Amendment challenge.

Anti-boycott provisions made their way into the federal Trade Promotion Authority law, making it a principal trade objective of the United States to discourage BDS from Israel and Israel-controlled territories. The Obama administration subsequently reiterated the position that it does not support settlements, for what that’s worth. You can find out more anti-boycott legislation at righttoboycott.org.

Anti-BDS legislation isn’t only in the U.S., of course. Israel itself has an anti-boycott damages law, and France has even criminalized BDS. Someone was arrested last week for wearing a BDS T-shirt.

These attacks are an extension of Israel’s oppression of Palestinians living under occupation, under siege, under apartheid, and under attack. When there’s no defense, the tactic is to try to stop the debate by intimidating and attacking your opponent. So, Israel and its apologists are also attacking those standing up for Palestinian rights wherever they are.

Free speech is crucial to free inquiry, open debate, and the functioning of our democracy—especially at our universities, where open debate on issues of public concern tends to lead our nation’s consciousness. Campus activism helped turn the tides of the Vietnam War and South African apartheid, and will eventually do the same here. The mounting repression against those who speak out against Israel’s occupation and other violations of international law illustrates the power the movement for Palestinian rights has to expose those abuses and eventually bring them to an end. Thank you.

Janet McMahon: Thank you so much, Maria.

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