Court Dismissed Case Based on Theory Behind Trump’s Executive Order on Antisemitism

As President Trump made waves with an executive order meant to stifle speech, action, and education that highlights Palestinian rights, a case that might have been affected by that very order was resolved in Massachusetts. The suit, brought by several anonymous students against the University of Massachusetts, Amherst, attempted to censure the university for hosting a panel that supported the movement for Boycott, Divestment, and Sanctions (BDS) against Israel and to establish that such events were inherently discriminatory and must be forbidden on campus.

The panel, which took place as scheduled on May 4, 2019, featured some of the country’s most outspoken supporters of Palestinian rights and progressive causes, including former Women’s March Co-Chair Linda Sarsour, Temple University Professor Marc Lamont Hill, musician Roger Waters, and Sports Editor for The Nation Magazine, Dave Zirin. All these people are fierce critics of Israeli policies from a progressive viewpoint.

The event, entitled, “Not Backing Down: Israel, Free Speech, and the Battle for Palestinian Rights,” was specifically designed to discuss efforts to stifle criticism of Israel, on campus and beyond. The suit itself, and the effort preceding it to force the cancellation of the event, couldn’t have demonstrated the need for that panel more clearly.

In the end, the students who brought the suit withdrew it because they refused to reveal their identities. The court ruled they needed to do so if the case was to proceed, so they called it quits and the court formally dismissed the case last week. This, like so many incidents regarding the Israel-Palestine conflict, is likely to lead to distinct narratives. The “pro-Israel” side will surely say that these students felt they would not be safe if their identities were known, although there are no violent incidents on this list of incidents of hate crimes at the campus. The side supporting free speech and Palestinian rights will, no doubt, say that the claimants’ accusations could not withstand honest scrutiny.

The suit was just one of a seemingly endless array of efforts to prevent any debate on Palestinian rights outside of the rail-thin boundaries established by the right-wing pro-Israel community. But it is particularly important because the argument in the suit relied on the same definition of antisemitism Trump used in his executive order. In their complaint, the lawyers for the anonymous UMass students wrote, “Each of these panelists (Sarsour, Hill, Waters, and Zirin) has a publicly known reputation for either being anti-Semitic and/or supporting known anti-Semites. Much of the activities and speech engaged in by these panelists is a direct violation of the definition of anti-Semitism adopted by the International Holocaust Remembrance Alliance (IHRA) annexed hereto as Exhibit B. This definition of anti-Semitism has been adopted by the U.S. Department of State, see Exhibit C, and the U.S. Department of Education, see Exhibit D.”

The IHRA definition has been widely adopted as a method of discerning what is and is not antisemitic, despite the fact that its author has repeatedly argued that using it that way is inappropriate and dangerous. But, as we see in the UMass case, the decisions by the U.S. Departments of State and of Education to adopt the definition powerfully reinforce the legitimacy of the IHRA definition as a definitive standard of antisemitism. An executive order is an even stronger reinforcement.

Trump’s order is specifically designed to penalize the defense of Palestinian rights. It doesn’t exactly criminalize it, but by defining anti-Zionism as antisemitism, it means that any institution that permits a Palestinian viewpoint — which, by definition, is not going to agree that the Zionist enterprise that displaced Palestinians and has deprived them of their rights for many decades was justified, no matter how much they might respect the rights of Jews individually and collectively — will lose federal funding, because the speech will have been defined as discriminatory. It is an exceedingly small leap from there to criminalizing defense of Palestinian rights as hate speech.

This struggle reaches beyond the academic environment in which it is currently playing out. The way it unfolds from here will certainly also have profound effects far beyond this one issue.

While foreign policy in general remains relatively low on the U.S. electoral agenda, there is a growing awareness that the approach to our foreign policy in the post-Cold War era has been gravely misguided. From the isolationist Trump voter, to the Realists worried about the destabilization of the broader Middle East region, to the anti-communists decrying the rise of China and re-emergence of Russia, to human rights and peace activists trying to end the bloodshed unleashed in the Global War on Terror, Americans across the spectrum are yearning for a real debate on foreign policy and an alternative to the infamous foreign policy “blob” in Washington.

The crafting of our Middle East policy toward the desires of key allies in the region — most notably Israel and Saudi Arabia — is inextricable from our policies and priorities all around the globe. There can be no serious assessment of our foreign policy without considering carefully the nature of our relationships to these countries and their policies. Indeed, any hope for a U.S. foreign policy that truly reflects the values we claim to cherish — human rights, justice, opportunity, and freedom — will ultimately be measured by our approach to the Middle East.

In Israel, we have failed dismally to broker peace. The failure is so absolute and the need for a completely new approach so clear that any debate must allow for all points of view to be heard, all alternatives to be explored. It is precisely that debate that right-wing supporters of Israel wish to avoid.

The Trump administration has abandoned the pretense of its predecessors  and openly sided with the government in Israel led by Benjamin Netanyahu, and against Palestinian aspirations and rights. But now, there is an increasing awareness among many in the Democratic Party and others that Palestinians must have the same rights Israelis rightfully expect, and that our policy must reflect that. There is a growing realization that the Israeli government’s turn toward greater nationalism in recent years mirrors the rise of populist nationalism in our own country.

The demand for a debate on Israel and the Palestinians has been growing as result, and with it, increasing questions about the wisdom and morality of U.S. policy toward this conflict. For supporters of Israel’s policies toward the Palestinians, the best outcome from that debate is one that maintains the status quo, the same outcome if the debate never takes shape. Therefore, they have no interest in seeing it happen, and every reason to try to shut down debate. That’s what we are seeing in Trump’s executive order, and it’s what we saw in the UMass lawsuit.

“The court correctly recognized the First Amendment right to talk about Palestine,” said Palestine Legal senior staff attorney Radhika Sainath, who provided legal support in the UMass case. “While this should be a no-brainer, Trump’s new executive order will probably open the floodgates for this type of harassing, vexatious litigation that has no place in a democracy that values open debate.”

The fact that the UMass suit failed because the people who brought it wanted to keep themselves anonymous means we still don’t know how much potential there is for such suits to succeed. As the Trump administration and Congress both work to pile more laws and regulations against the free exchange of ideas on Israel and Palestine, though, there is increasing cause for concern. Perhaps the suits will only be harassing and vexatious, as Sainath said. But they could also be even more threatening to free speech on Israel-Palestine.

This is about more than just the freedom to support BDS, or to debate Israel’s policies and the United States’ role in them. The chances of challenging the current foreign policy establishment in an effective way will be affected by the outcome. It is imperative that the debate on Palestinian rights and Israeli policies be defended, proactively and firmly.

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