Analysis News

‘A legal shield for the Palestine movement in the U.S.’

Pro-Israel organizations are increasingly using the law to target Palestinian solidarity groups in the United States. Dima Khalidi, head of Palestine Legal, speaks with +972 Magazine about the ‘Palestine exception’ to free speech, and what her organization is doing to fight back.

Amjad
Iraqi

The American Civil Liberties Union (ACLU) filed a lawsuit last week on behalf of a Kansas public school teacher who, as a condition for taking her job, was required under a new state law to declare that she would not engage in boycotts of Israel. The law is just one in a growing list of measures in recent years aiming to counter the Palestinian-led Boycott, Divestment, and Sanctions (BDS) movement in the United States.

Political boycotts in the U.S. are meant to be stringently protected under the First Amendment. “The state should not be telling people what causes they can or can’t support,” Esther Koontz, the Kansas teacher, said about her lawsuit.

That’s not necessarily the reality these days, however. “It’s clear that when it comes to talking about Palestine, there’s a suspension of the notion that the government has no authority to interfere in that right,” says Dima Khalidi, founder and director of Palestine Legal.

Established in 2012 in partnership with the Center for Constitutional Rights (CCR), Palestine Legal has been one of the key players holding the frontline against efforts to suppress BDS activity and speech about Palestine across the U.S., from state legislatures to university campuses. Khalidi and her staff responded to 650 such incidents between 2014 and 2016.

Just last month, Palestine Legal responded to false legal threats sent to activists and professors by a group called “Outlaw BDS New York,” which accused them of violating an anti-BDS law that never actually passed the New York State legislature. Along with its legal work, the organization also tracks anti-BDS laws in all 50 states (21 have already enacted such laws) and at the federal level.

I spoke with Khalidi last month about Palestine Legal’s work and to hear her perspective on the various threats to – and signs of hope for – Palestine activism in the U.S., including BDS. The following was edited for length.

Palestine Legal Director Dima Khalidi (Courtesy photo)

Palestine Legal Director Dima Khalidi (Photo courtesy of Palestine Legal)

How and why was Palestine Legal created? What compelled the need for its existence?

“The idea started with conversations among lawyers and activists who were thinking about what we could do legally on Palestine in the U.S. This was in the context of largely unsuccessful attempts – including by CCR, where I interned and co-counselled – to seek accountability for Israel’s violations of international law through domestic and international legal mechanisms.

“This was also happening in the context of a rise in Palestine activism after the 2008-2009 Gaza war – a mobilization that we hadn’t seen in decades. And at the same time, there was an escalation in the backlash against that movement: 11 students at the University of California, Irvine were being criminally prosecuted for protesting a speech by the Israeli ambassador to the U.S., and the Olympia Food Co-op was being sued for passing a resolution to boycott Israeli goods.

“What I kept hearing from people was the need for help: that talking about Palestinian rights, and challenging Israel’s actions and narrative, opened people up to a huge amount of risk, attacks, and harassment – much of it legal in nature, or with legal implications.

“So with the support of a handful of people – including the instrumental vision of the legendary human rights lawyer Michael Ratner, who passed away last year – I established Palestine Legal. Our work is meant to provide a legal shield for the Palestine movement, to protect and expand the space to advocate on this issue. As an organization dedicated to movement lawyering, we don’t consider ourselves part of the movement per se, but as supporting the movement’s efforts to challenge the status quo, whatever their tactics.”

That can be a tricky distinction to make – being part of a movement versus supporting a movement.

“It is a tricky balance. Movement lawyering requires us to recognize that it’s not the lawyers that lead or dictate the movement, even if we personally disagree with their tactics or know they’ll land people into trouble. All our staff are deeply political people with their own activist and personal histories, but we try to step back from that role and focus instead on responding to the legal needs of activists on the ground.”

File photo of a pro-BDS protest outside Target in Chicago. (Tess Scheflan/Activestills.org)

File photo of a pro-BDS protest outside Target in Chicago. (Tess Scheflan/Activestills.org)

Does Palestine Legal only deal with the right to boycott, or does it also address the substantive content or arguments of the BDS movement itself?

“We always go back to why people are motivated to speak out and engage in BDS, which are central to why we have the right to do it. Boycotts are a means for people who don’t necessarily have access to power to take collective action in order to influence change – as was done with the civil rights boycotts, boycotts of apartheid South Africa, and boycotts for farm workers’ rights. The U.S. Supreme Court itself recognized this as a legitimate activity protected by the First Amendment in 1982.

“In this case, the goal of boycotts is to achieve justice, freedom, and equality for Palestinians, who have been continuously dispossessed of their land, livelihoods, dignity, and agency for over seven decades. Those opposed to Palestinian rights try to claim otherwise; so it’s imperative to the legal argument that we return to the key issues that describe the Palestinian experience.”

This isn’t the first time in U.S. history that the right to boycott, or free speech in general, has been suppressed. Why is there still a “Palestine exception” to these rights today? What lessons do you take from the past when dealing with your cases?

“When we talk about the Palestine exception, it’s not to say that it’s the only exception. You can look at the anti-Communist hysteria of the Cold War, when people were forced to sign loyalty oaths and were subjected to witch hunts and blacklists. The response to that McCarthyist era was an eventual strengthening of First Amendment jurisprudence, which now provides better legal protections against ‘compelled speech,’ for example. This is also true of the Civil Rights era, when states tried to issue new laws to stop certain kinds of protests, and to use existing laws to indict people for boycotting – hence the Supreme Court ruling that recognized political boycotts as a right.

“Still, it’s clear that when it comes to talking about Palestine, there’s a suspension of the notion that the government has no authority to interfere in that right. We see all kinds of bogus justifications for strangling Palestine advocacy: it’s anti-Semitism, it’s support for terrorism, it’s propaganda, it’s discriminatory. Our position is to step in and say there’s no exception here. Talking about Palestine is exactly what the First Amendment is supposed to protect: it’s a dissenting view from what the vast majority of our politicians and officials espouse, and it is speech that the government most wants to censor, so it must be vigilantly protected.

“Another part of the reason why Palestine feels different is that the attacks pervade all aspects of our lives today. The backlash can be online (look at outfits like Canary Mission, which profile and harass people); from employers (look at Steven Salaita, fired for tweeting critically about Israel’s war on Gaza); from donors; from institutions (look at the students censored or punished at Fordham University, University of California-Berkeley, or at the Missouri History Museum). This is because there are influential domestic groups and individuals that are doing everything in their power to shield Israel from scrutiny on every forum, and to ensure that the U.S. continues to unconditionally support Israel.”

The head of a major Israel advocacy group was quoted in 2016 saying to BDS activists: “While you were doing your campus antics, the grown-ups were in the state legislature passing laws that make your cause improbable.” What do you take from that? Why is more of the anti-BDS backlash today coming in the form of legislation?

“That quote says a lot about the political dynamics in the U.S. On the one hand, you have an intersectional grassroots movement that’s driven by students and youth. On the other hand, you have a well-resourced and well-connected constituency that’s deeply entrenched in state and public institutions. The way that Israel lobby groups are successful in pushing such blatantly unconstitutional laws, and the way university heads face (and often succumb to) pressure from advocacy groups, alumni, donors, and state officials, further illustrates this top-down approach.

“There’s a growing and visible alliance between Zionist groups in the U.S., the right-wing Israeli government, and far right groups in the US. They believe that they can dictate the discourse on Israel-Palestine, and get around the First Amendment problem, by pandering to Islamophobic sentiment; by conflating nonviolent resistance with terrorism; and by undermining the motivation and rights of the entire Palestine movement. Even many in the Democratic Party and self-described “progressives” blindly support these agendas.

“At the same time, we’re seeing groups like Jewish Voice for Peace (JVP) offering different paths. There’s an enormous pushback to the more established right-wing Jewish organizations – and that’s exciting. But at the moment, those organizations still have the ability to drive the narrative from above. We have a long way to go; but in the long run, it’ll become untenable to ignore a powerful and growing grassroots movement.”

In Israel we have an anti-boycott civil law and now another law to deny entry to foreigners who partake in BDS. The right wing seems to think that legislation is an effective way to achieve its goals.

“Indeed. Dissent becomes the exception the more authoritarian the regime is, and we see signs of this in both the U.S. and Israel as forms of protest are being punished. It’s also telling that the language in Israeli laws is showing up in anti-BDS legislation in the U.S., such as the phrase ‘Israeli-controlled territory’ to refer to West Bank settlements. It just goes to show that we’re dealing with the same forces – and ultimately, that translates into advocating for those same things domestically. How can you be for equality in the U.S. when you defend Israel’s discriminatory laws and apartheid policies? It doesn’t add up.”

Anti-Semitism is routinely charged against Palestine activism. How do you address those accusations?

“We’ve had success with this legally on some levels. One of the tactics advanced by pro-Israel groups is to codify a redefinition of anti-Semitism which encompasses the ‘three D’s’: delegitimization, demonization, and double standards toward Israel. You can imagine that any and all criticism of Israel can basically fall into those three categories. But when these things go to court or even government agencies, a clear distinction is made between discrimination on the basis of religion or national origin, versus criticism of states and state actions.

“For example, the U.S. Education Department received complaints under Title VI of the 1964 Civil Rights Act, claiming that universities are tolerating hostile anti-Semitic activities by allowing groups and events that criticize Israel. The Education Department dismissed the complaints and said that this is political speech, and that just because it might be offensive to some, it doesn’t mean that it’s harassment or discrimination.

“Moreover, the vast majority of Palestine advocates are unequivocal about their opposition to all forms of racism, including anti-Semitism. When we put these matters in the context not only of free expression, but also that the Palestine movement opposes all forms of oppression – that’s when we’re able to make the most impact.”

File photo of a pro-Palestine rally in downtown Boston. (Tess Scheflan/Activestills.org)

File photo of a pro-Palestine rally in downtown Boston. (Tess Scheflan/Activestills.org)

Do all the attacks feel coordinated or concerted?

“Undoubtedly. We see the same two dozen Israel advocacy groups engaging in the same tactics around the country, accusing activists of being threatening, violent, and anti-Semitic for engaging in Palestine activism.

“But it’s also clear that not all those groups agree on tactics. Some, like David Horowitz and Canary Mission, who publicly name and blacklist Palestinian rights advocates as ‘Jew-haters’ and ‘terrorist-supporters,’ are seen as going beyond the pale even among Zionist groups that actively engage in suppression in other ways. There are also disagreements about pursuing anti-BDS legislation, and about imposing the new definition of anti-Semitism mentioned earlier.

“But ultimately, the more ‘extreme’ tactics serve the same purpose as the others: they want to make it so costly to engage in Palestine advocacy that people just become exhausted, give up, and stay silent. I don’t think these tactics are going to work: more and more people are seeing that they can be successfully challenged, more people are learning about the horrors of Israel’s occupation and apartheid, and more people are refusing to stay silent about those policies and the U.S.’s role in enabling them.”

The ACLU recently came out in defense of the right to boycott Israel. How do you reach out to audiences that aren’t your conventional supporters, including those in the American mainstream?

“Palestine is still a lightning rod and there’s still a reluctance to come out on this issue. That said, the more egregious the measures against Palestine advocacy, and the more they attack our fundamental freedoms, the more we see the likes of ACLU being compelled to speak up – even though they still claim neutrality on the underlying political and human rights issues. We’ve worked in several states with ACLU chapters and other groups that typically wouldn’t be willing to step up publicly on these matters, and we’re now seeing them do so because of what’s at stake.

“Steven Salaita’s case is an example of this: when he was fired for tweeting about the 2014 Gaza war, it sent shock waves across academia. Thousands of professors around the U.S. pledged to boycott the university, and a dozen departments voted no confidence in the chancellor. That’s when you see more people being willing to step into the fray, saying that this is dangerous beyond just the matter of Palestine advocacy — that this threatens all our basic rights to dissent and to debate the most important issues of our time.”

What are your thoughts on the future of your work, and on Palestine advocacy in the U.S. in general? What new strategies are you considering?

“We feel like we’ve been on the defensive and putting out a lot of fires over the last five years, which also seem to be coming faster and faster. There’s no doubt that we’ll continue to help those who are under attack; but we’re also thinking about more proactive ways to tackle some of these issues.

“Our lawsuit with CCR against Fordham University – which refused to grant club status to Students for Justice in Palestine (SJP) because some considered their views too “polarizing”– is an example. The attack on SJP aims to make Palestine activism so radioactive that universities won’t even allow such student groups to form – so it’s crucial that we prevent this from happening. We have a long way to go in enshrining a new narrative that views Palestine advocates as forces for freedom and justice, and their advocacy as protected political expression – but we’re on our way.

“Regarding legislation, our role is to explain to activists and the public what these laws do and don’t do. This is important because one of the main purposes of the legislation is to make people believe that Palestine advocacy is prohibited or criminalized – and that really isn’t the case with most of these laws. So it’s critical to make sure that activists aren’t scared off from their work, but instead feel empowered to confront its challenges.

“There’s also no question that grassroots mobilization has been successful in impacting the political arena, though we hear less about it. Look at the failure of legislative initiatives in states like Virginia, South Carolina, Maryland, and Montana. These victories are because of groups like the US Campaign for Palestinian Rights, American Muslims for Palestine, JVP, church groups, and the US Palestinian Community Network. Anti-BDS measures have ultimately strengthened the networks of Palestine advocates across the country, and these coalitions outlast the lifespan of a bill. We believe that the power of these grassroots movements is what will effect change – and that’s what Palestine Legal aims to bolster.”

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    1. JeffB

      The problem with Palestine Legal is that their criteria is ultimately contradictory. On the most surface level they are demanding California schools take down David Horowitz’s anti-BDS posters. The argument being that defaming political speech constitutes a threat. On the other hand when it comes to Israeli Apartheid week they argue the exact opposite that defaming political speech is not threatening and only a direct and immediate threat of violence should be considered incitement. They work to defend groups that breakup Jewish meetings arguing that demonstrating is free speech. They then turn around and protest Palestinian meetings arguing for a right to dialogue unhindered by opposing voices. They are going to need to come to a consistent position on the use of cultural boycotts. And of course the S in BDS is advocacy for using the legal code to restrict economic activity. Do they believe the state should or should not use legal pressure against Americans who act against American policy?

      I think these problems with be rather damning More deeply when they argue that the Palestinian cause is a civil rights movement they inherit the conflicts between American values and Palestinian political positions. This is especially notable with respect to minorities. The Palestinian political position is that immigration is illegitimate and biological inhabitants of a place have some sort of permanent national claims. BDS is well to the right of the Klan when it comes to ethnic neighborhoods. In the USA there is no concept of national claims, no nations have any legal rights (excluding some native American treaty rights). Moreover, this is not just theory but widespread practice. Most USA towns have seen their ethnic makeup change more than twice in the last 300 years, and no small number are undoing major ethnic shifts today. In almost all cases without any violence. In all USA cities the neighborhoods go though ethnic changes even more rapidly often not holding their character for more than 60 years or so. Virtually all Americans live in ethnically mixed housing, attend mixed schools, work in ethnically mixed workplaces. Then compound this by noting the majority are the products of mixed parents, grandparents or great grandparents. Americans have an inclusive notion of American that’s ever expanding (not unlike the situation in Israel with respect to the expanding definition of what Zionism considers a Jew).

      Reply to Comment
    2. Ben

      This is an excellent article that nicely clears up a lot of the confusions and the obfuscations and obscurantisms about these First Amendment issues that one can see right here in the comment sections at +972 Magazine in the past few days.
      People like Dhima Khalidi and others of Palestine Legal are doing excellent professional work, for Palestine and for the United States of America.
      It is truly a shame that the people trying by hook and by crook to advance the Palestine exception and shut down free speech on these issues cannot see that if Israel truly has a just cause then it can stand the light of day and the free speech actions of the citizenry, and that if it cannot withstand free speech then something is very wrong. It’s time people examined just that equation and asked themselves some hard questions.

      Reply to Comment
      • JeffB

        @Ben

        There is no movement of any kind in the USA to stop simple discussion of USA Israeli policy. There are books, magazines, websites, podcasts, videos… that discuss these issues. They publish freely and openly. Palestine Legal for example maintains a large website with a wealth of materials no one is taking it down.

        This disagreement is over activism which is obstructive of normal interaction not speech in a narrow sense.

        Reply to Comment
        • Bruce Gould

          @JeffB: In a number of legal cases various courts in the U.S. have ruled that advocating a boycott IS a form of protected political speech.

          Reply to Comment
          • JeffB

            @Bruce

            Of course advocating for a boycott is free speech. That’s not the question. There is an absolutely unlimited right to advocate for policy changes.

            The question is about engaging in one or organizing one under certain circumstances. The actual act of boycotting is a regulated activity.

            Same as medicine. I have a first amendment right to advocate for any medical policy change I want. I don’t have a first amendment right to perform medical procedures in line with my stated positions. The practice is regulated.

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        • Ben

          @JeffB: “There is no movement of any kind in the USA to stop simple discussion of USA Israeli policy.”

          There are of course all sorts of organized efforts to inhibit free speech and cow people to stop discussion of USA Israeli policy. Amjad Iraqi and Dhima Khalidi describe some of them up above on this very page. You are skirting the issue by resorting to a combination of precise evasions and vague pronouncements. And it is just because of the determined frustration of effective US policy towards a fifty year brutal lawless occupation and towards Israeli impunity that boycotts are being resorted to. Israel has engineered a sick US-Israel relationship unhealthy for both parties and ruthlessly shuts down all violent and non-violent protest and redress and then acts scandalized and offended when people move to boycotts. Boycotts are a last resort means of addressing unhealthy balances of power and unjust legal frameworks on several levels. Whether these boycotts become “civil disobedience” then becomes an issue but if these boycotters do break the law I think a strong case can be made that that law breaking constitutes ethical civil disobedience in the finest traditions of the American republic.

          Reply to Comment
          • JeffB

            @Ben

            The claim was about discussion of USA policy. You are talking about actions. Which may or may not justified but that isn’t discussion anymore. The article is quite clear the goal of Palestine Legal is to protect “advocacy” not discussion.

            That being said I don’t think Israeli-USA policy is sick or destructive. The USA gets a regional power whose natural interests are inconsistent with USA interests to do what it wants in a region that at least until recently was critical to USA interests. Israel gets diplomatic protection and weapons development. Seems like a rather healthy trade for both parties.

            The welfare of the Palestinians is not a critical interest of the USA anymore than hundreds of other oppressed minorities all over the globe the USA mostly doesn’t care about. The Kurds are a rate exception and even here the USA is quite inconsistent. As for Israel I fail to see how the BDS objectives of ripping off huge chunks of the country, displacing 10% of the population, flooding the country with hostile foreigners and having the legal system paralyzed so the nation can’t defend itself is “healthy”. Those are the sorts of disastrous outcomes that come about through losing wars.

            You cannot be as hyper critical and bitter towards Israel as you have been here and claim to be interested in Israel’s interests. It is simply ridiculous.

            Reply to Comment
          • Ben

            You’re now trying to parse the difference between discussion and advocacy? Obscurantism taken to the next level?

            No one without a pro-occupation axe to grind would say Israeli-USA policy is not destructive for both countries.

            As for Palestine I fail to see how the Israel’s objectives of ripping off huge chunks of the country, displacing 100% of the population, flooding the country with hostile foreigners and having all systems paralyzed so the nation-to-be can’t defend itself is “healthy”.

            “You cannot be as hyper critical and bitter towards Israel as you have been here and claim to be interested in Israel’s interests.”

            This last comment of yours is basically three things: (1) Your confusing my reaction to you and your style with some general trait of mine or general attitude to Israel, and bespeaks your failure to recognize how annoying you are, LoL; (2) A conflation of Israel and the occupation; and (3) The millionth attempt to delegitimize and pathologize people like me, and by extension the writers of +972 Magazine and people like Gideon Levy and Amira Hass, and to correspondingly normalize cavalierness and blitheness towards the brutalizing of an entire population. It is an attempt to normalize the occupation. What’s the big deal, right? You are blithe, JeffB. I find it to be your most enduring trait.

            Reply to Comment
    3. Bernie X

      Governments in the United States don’t have to contract with businesses that discriminate against gays or women and governments in the United States don’t have to contract with businesses that discriminate against America’s ally, Israel.

      Reply to Comment
    4. Bernie X

      This ‘shield’ is letting the ACLU do the heavy lifting, in Kansas anyway.

      Reply to Comment
    5. The number of Arabs and Jews living west of the Jordan River is approximately the same. A two states solution is meaningless without changing citizenship of Israeli Arabs. Israeli Arabs obtained Israeli citizenship illegally and against international law. In 1952, Jews rashly presented the Arabs with Israeli citizenship.
      Unfortunately, Israel long ago became a bi-national , it’s an incubator for Arab people. Arabs hate Jewish state. This can lead to events such as those that occur in Syria.
      Jews will not survive in a bi-national state.

      Reply to Comment
    6. Ben

      Israel keep your hands off the American republic. What’s next? As Richard Goldwasser tweeted: “Who’s next, food stamp recipients? Marriage license applicants? How about voter registrants? This has got to stop…. Enough. די כבר. Genug.”
      ACLU Slams Houston Suburb for Withholding Hurricane Relief to Anyone Boycotting Israel
      https://www.haaretz.com/us-news/1.818363

      Reply to Comment
    7. Jon

      Freedom of Speech should be protected as a means for the public to publicize and protest government policies, not as a means of spreading racism and libel. Iraqi thinks that Professor Steven Salaita should not have been fired for tweeting, “If Netanyahu appeared on TV with a necklace made from the teeth of Palestinian children, would anybody be surprised?” BDS campaigners, white supremacists and neo-nazis have been gaining in popularity by spreading lies, which they and the courts defend in the name of “freedom of speech”. Punishing those who spread harmful lies (such as Netanyahu wanting a necklace of Palesinian teeth”) does not “threaten basic rights to dissent and to debate the most important issues of our time”, but instead protects the foundation of democracy, which requires that opinions be based on facts.

      Reply to Comment

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