From courts to campuses, US Palestine advocates are reclaiming their free speech

Meera Shah, senior staff attorney at Palestine Legal (courtesy of Palestine Legal)

Amjad Iraqi

+972 Magazine  /  March 11, 2021

Despite ‘all-out assault’ on Palestine advocacy, legal victories and grassroots organizing are creating new opportunities for activism under Biden, says Palestine Legal attorney Meera Shah.

In a letter to the head of the American Zionist Movement last month, U.S. Secretary of State Antony Blinken declared that the Biden administration was dedicated to “fighting efforts to delegitimize Israel” and would “counter attempts to isolate Israel in the international community.” More worryingly, Blinken wrote that the administration “enthusiastically embraces” the definition of antisemitism proposed by the International Holocaust Remembrance Alliance (IHRA) — a controversial definition that explicitly labels various criticisms of Israel as forms of anti-Jewish bigotry.

For Palestinian rights activists, Blinken’s letter was the latest disheartening sign that the legacies of the Trump administration were far from over. While the movement has broken tremendous ground in the United States in recent years, the assaults on its members’ rights and freedoms have only intensified. Based on his first 50 days in office, many now fear that Biden will be complicit — if not an active enabler — in these attacks.

The Palestine movement, however, is far from powerless. Despite the relentless attempts at repression, the context in which to fight for Palestinian rights has “fundamentally changed,” says Meera Shah, a senior staff attorney at Palestine Legal. The organization, which works to protect the civil liberties of Palestinian rights advocates in the United States, reported that it had responded to 213 incidents of suppression of Palestine advocacy in 2020, 80 percent of which targeted students and academics across 68 college campuses.

Yet with U.S. courts striking down anti-boycott legislation as unconstitutional, and cross-movement organizing helping to undermine efforts to smear Israel critics as antisemitic, Palestine advocates are in a much better position to press the Biden administration “to do more and to do better,” Shah told +972 in an interview. “For those who are trying to speak out for Palestinians: keep on doing that, and we will have your back. We’re there for when the backlash comes.”

The interview was edited and shortened for clarity. You can also read +972’s interview in October 2017 with Palestine Legal founder and director, Dima Khalidi.

First, let’s take stock of the impact that the Trump administration has had these past four years. What did you see were the dominant trends shaping attacks on Palestine activism in the U.S. during that time? Were they very different from the Obama years, or more of a continuity?

Under the Trump administration, we saw an all-out assault on Palestinians and those willing to speak out for Palestinian rights. Private censorship and smear efforts [led by anti-Palestinian groups] had been fairly constant under previous administrations, but the attacks now had the backing of the state and the executive branch.

For example, you had Kenneth Marcus [a lawyer who used civil rights complaints to harass Palestine advocates in universities] as the head of the Office of Civil Rights in the Department of Education, investigating accusations of antisemitism on college campuses. You had Trump signing a 2019 executive order that put the IHRA definition of antisemitism into law. You had Secretary of State Mike Pompeo, at the very end of the administration, stating that anti-Zionism equals antisemitism.

We saw an uptick in the most egregious tactics of oppression that co-opted the power of the state: legislation, lawfare, court cases, and calls for criminal investigations to silence Palestine advocates. You also saw an uptick aimed at the infrastructure for organizing, efforts to defund and de-platform Palestine groups, and efforts to get social media companies to take on the task of censoring themselves.

It’s important to note that the Trump administration led attacks on social movements across the board — and in that sense, it offered an opportunity for cross-movement organizing, and to act on Palestine as a core social justice issue. The past four years have provided rich opportunities for that kind of mobilizing, and to stand up for our right to dissent against right-wing forces that were trying to suppress protest across these movements.

Was it a conscious choice on the part of the Palestine movement, because of those assaults, to widen the infrastructure for organizing by integrating with other movements?

I don’t know which came first, but in some ways the cross-movement solidarity lessened the impact of some of those attacks. It made sure that others were standing up and pushing back when these attacks came. There’s a recognition not only that these movements are facing a common repression, but that their issues are in fact very connected — an affirmative vision of freedom and justice for all that encompasses Palestine within its framework.

Your Legislation Tracker shows a U.S. map peppered with laws and bills targeting Palestine activism; 30 states, for example, now have anti-BDS laws, compared to 21 just four years ago. What effect — positive or negative — have the legal challenges by groups like Palestine Legal had on the proliferation of these laws, or how the courts are reviewing them?

There are 30 states that have anti-boycott bills in effect, and more than 200 state and federal bills that have been introduced since 2014, with the encouragement and support of the Israeli government, pro-Israel groups, and right-wing allies. But an important figure to remember is that 75 percent of these bills have failed to pass, and that’s thanks to the efforts of Palestine advocates, civil liberties groups, and allies who have pushed back.

In states where this legislation is in effect, the laws that have been challenged so far have been struck down. With the 8th Circuit Decision last month in the Arkansas Times case [the newspaper had demanded an injunction against a law that required state contracts to include a pledge not to boycott Israel], not a single court that has examined the merits of these anti-boycott laws have found them to be constitutional. That’s a pretty powerful indictment of these laws.

The backlash continues despite these failed bills and court decisions, of course. Where legislatures have failed to pass the bills, you often see executive branch action instead. We saw that at the federal level with Trump’s executive order: when Congress failed to pass the Anti-Semitism Awareness Act [which tried to enshrine the IHRA’s definition of antisemitism into law], due in part to advocacy raising First Amendment concerns, Trump adopted his order. In several states where there was organized pushback against the bills, governors took unilateral action to force them through.

Another trend we’ve seen in places like Texas, Arizona, and Kansas is that, when courts strike down these laws as constitutionally flawed, the reaction of state lawmakers has not been to pull back and say, ‘We’re not going to do this anymore.’ [Rather] it’s been to amend the legislation and make them no longer applicable to the individual plaintiffs that have been challenging the laws — to throw out their cases. It doesn’t address the constitutional infirmities of these laws, or the fact they’re being used to suppress First Amendment activities; it just narrows the class of individuals that they apply to, and who can raise challenges against them.

When the anti-boycott laws first began popping up, there was a lot of confusion and concern about whether it was lawful to continue organizing or supporting BDS. But there was a lot of education to get the word out. The fact that the victories in court were supported by advocacy shows that most people are still engaging in boycotts and continuing to do that organizing work. You see that also in divestment resolutions that are passing on college campuses in the past year. The organizing hasn’t disappeared or chilled as a result of these laws.

When I spoke with Palestine Legal director Dima Khalidi in 2017, the IHRA definition of antisemitism was just beginning to emerge. Now, it is arguably one of the main mechanisms targeting Palestine activism worldwide, at a dizzying pace. How are you seeing the IHRA definition play out in the United States? What does it portend for speech on Palestine in the years ahead?

These efforts at re-definition are taking a traditional definition of antisemitism and conflating it with criticism of Israel. They have had different names over the years: the “Three D’s” [delegitimization, demonization, and double standards toward Israel], a State Department definition, and others. But they’re all pretty much the same in their intent and impact of suppressing Palestine advocacy.

The IHRA version is a politicized and widely criticized re-definition that expands these definitions. It includes 11 illustrative examples of antisemitism, seven of which reference criticisms of Israel, including one that says calling Israel a “racist endeavor” is antisemitic. Some legislation we’ve seen departs slightly from the IHRA and includes human rights investigations that focus solely on Israel as an example of a double standard that counts as antisemitism.

Why is this definition problematic? Legally, the blurring of the line between antisemitism and criticism of Israel will result in censorship of constitutionally protected political speech. Civil liberties groups, including the ACLU, have opposed legislation that adopts the IHRA definition over concerns that they will infringe on First Amendment rights.

A second reason, especially coming out of the Trump era, is that there are cynical efforts to address antisemitism while stoking white nationalists at the same time. The conflation of antisemitism with criticism of Israel distracts from understanding and addressing the dangerous antisemitism of white supremacists, and so seems like a cynical attempt to target Palestine advocacy.

A third reason, and perhaps a less cynical take, is that there is a real desire to address rising antisemitism and bigotry that was very much on display, for example, during the Capitol Riot on Jan. 6. Lawmakers who want to address this will see these bills [adopting IHRA] and, without necessarily reading too far or knowing too much about them, think ‘Here’s something addressing antisemitism — this seems like a good thing, so we want to support it.’

There’s a space for education there — to say that there is absolutely a need to address antisemitism, but this is not the solution to the problem. And there is a need to say that these bills harm multiple communities: along with Palestinian rights advocates, Jewish groups are also speaking out and saying this definition actually harms efforts against rising antisemitism. One of the definition’s authors, Ken Stern, has come out saying that the definition doesn’t address the roots of bigotry that have been at the heart of the most violent and deadly attacks against Jews in recent years.

A fourth reason is that the definition aims to chill and silence those willing to speak out for Palestinian rights. That’s not a theoretical concern: we know this for a fact because it is how the definition has been deployed even before it was codified into law. We’ve seen false accusations of antisemitism that attempt to smear those advocating for justice and freedom with a label that puts their advocacy beyond the pale. That’s been one of the most common types of attacks that we’ve documented over the years.

This [campaign] isn’t new, but the risk is that it would formalize and give legal weight to these conflations and false accusations. Florida and South Carolina have already adopted into a law a re-definition similar to IHRA. We anticipate seeing more of these efforts in the years to come.

The good news is that there is a growing awareness about the dangers of these bills, and how problematic the definition has been. And there’s a growing recognition that human rights advocacy calling for freedom, justice, and equality for Palestinians, or advocacy that vigorously criticizes Israeli policies, is not the same as anti-Jewish hate.

This might be getting into speculation, but let’s say there’s a scenario where the federal government — the State Department, the Education Department, etc. — fully adopts the IHRA definition, and then that definition has to be considered alongside Title VI of the Civil Rights Act [the prohibition of discrimination based on race, color, or national origin]. Is there a concern that this might make defending cases far more difficult?

That’s already happened to some extent. Trump’s executive order directed government agencies to consider the IHRA definition and its Israel-related examples when investigating allegations of discrimination under Title VI. Since then, we’ve been seeing an uptick in the number of complaints filed with the Education Department targeting Palestine advocacy on university campuses, with efforts to weaponize the order to force universities to adopt the IHRA definition.

We still have strong decisions from previous Education Departments in defense of First Amendment protections for Palestinian rights advocacy. But it raises a good question.

What we’ve seen is that universities are put in the position of having to navigate and ask what this definition means for their investigations and policies. It doesn’t mean they are adjudicating complaints on the basis of the IHRA definition, but they’re required to consider it. Pro-Israel groups have utilized that pressure to push these complaints and get the universities to act. Depending on what they get out of that process, they might then file complaints to operationalize Trump’s executive order.

Many members of the Biden administration, including the president himself, have been very explicit about their opposition to BDS, and have not made any clear indication that they will at least protect the right to boycott Israel. Despite these positions, do you still see some new advantages or opportunities for your work under the new administration?

Let’s be clear: there are no expectations that the Biden administration will be sympathetic to Palestinians and those willing to speak out on their behalf. We’ve seen very problematic statements in [Senate] confirmation hearings, repeating false accusations about boycotts and BDS. There’s also been the failure to roll back Trump-era policies around the U.S. embassy in Jerusalem, IHRA, even the International Criminal Court.

Having said that, there’s still an opportunity to hold the administration accountable to the principles that they espouse and claim they want to uphold — something we didn’t even have to hold onto under the Trump administration. There are real asks around freedom of expression and free speech, and an opportunity to press them around the right to boycott.

Relatedly, the context has fundamentally changed in terms of help and support to push the administration in that direction. Around boycotts, every single court has affirmed that these laws are constitutionally flawed. Around IHRA, more and more liberal Jewish groups are speaking out against its adoption and codification into law. In Congress, you have a House where progressive members are willing to stand up and speak vocally for Palestinian rights, and to support the rights of those advocating for them in the United States. This is all fundamentally different from previous years to help push the administration to do more and to do better.

Is that ultimately going to be successful? I’m less certain; but at the very least, the goal is to create the space for focusing the conversation, policies, and resources around the issues where they need to be: centering and supporting the freedom and justice demands of Palestinians. Hopefully there’s more room for that in the coming years. The Palestinian rights movement has grown exponentially and has very much become a core social justice issue. This is incredible given the organized and well-resourced campaign to stop it. For those trying to speak out for Palestinians: keep on doing that, and we will have your back. We’re there for when the backlash comes.

Amjad Iraqi is an editor and writer at +972 Magazine;  he is also a policy analyst at the think tank Al-Shabaka, and was previously an advocacy coordinator at the legal center Adalah; he is a Palestinian citizen of Israel, based in Haifa