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of Illinois at Urbana-Champaign was withdrawn for tweets critical of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.
