Legal and Tactical Guide Palestinian Human Rights Advocacy in the U.S.

7/29/2019 Legal and Tactical Guide Palestinian Human Rights Advocacy in the U.S.

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PalestinianHuman Rights

Advocacyin theU.S.

LegaL and TacTicaL guide


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Palestine Solidarity Legal Support (PSLS) engages in coordinated

and strategic legal advocacy to advance the Palestine solidarity

movement in the US. We work with a network o partners to develop

legal resources, and support advocacy and litigation. We aim to build

the power o activists to withstand the concerted assault on ree speech

and continue advocating or Palestinian human rights.

The Center or Constitutional Rights is dedicated to advancing and

protecting the rights guaranteed by the United States Constitution and

the Universal Declaration o Human Rights. Founded in 1966

by attorneys who represented civil rights movements in the South,

CCR is a non-prot legal and educational organization committed to

the creative use o law as a positive orce or social change.


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a nOTe aBOuT THiS guide

This guide is meant to provide basic inormation on legal issues

that Palestinian rights activists may ace, and tips on how to

navigate them. It provides some generally applicable inormation andsome campus-specic inormation or student activists. Tis guide isNO sbsttt o ll state and local laws dier greatly,laws may change, and the application o all laws depends on the specicacts o a case.

For urther inormation on any o these topics, or legal advice onyour campaign or about a specic issue you are acing, or to report

incidents o repression o your activism, please go to:

PlstnLlSppot.oll 312-212-0448, ol [email protected]

Were also glad to provide workshops or schedule meetings to discussyour particular needs, whenever possible.

First publication September 2013

Tis material was prepared by Palestine Solidarity Legal Support and the

Center or Constitutional Rights, with editorial and other assistancerom Barbara Harvey, National Lawyers Guild.

Back cover photo source: WE WILL NO BE SILEN Language ProjectDesign: Barbara Barefeld DesignWorks

and Leena Saleh
http://palestinelegalsupport.org/http://palestinelegalsupport.org/


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TaBLe Of cOnTenTS

PracicaL iPS Or aciviSm ............................................................................... 4

irS ameNdmeN ree SPeech righS .......................................................... 5General Principles ........................................................................................................ 5

Spotlt: Fighting Back Against Oensive Speech ................................................ 6

ime, Place and Manner (PM) Regulations ........................................................... 7

Spotlt: Unequal Application o PM Rules Can Be Challenged ..................... 7

On Campus ................................................................................................................... 7

Wt abot Mock Checkpoints? .............................................................................. 9

crimiNaL iSSueS YOu maY ace ........................................................................... 10

Common Protest Charges ......................................................................................... 10

Disrupting Speech Statutes ........................................................................................ 10

Spotlt: Disrupting Speech Te Irvine 11 ...................................................... 11

Material Support ......................................................................................................... 11

Spotlt: Material Support Donating Money .................................................. 12Wt abot Advocacy Related to a FO? ............................................................. 13

Conspiracy ................................................................................................................... 13

POeNiaL LaWSuiS BY Or agaiNS YOu..................................................... 14

Deamation .................................................................................................................. 14

Spotlt: Te Problem with Deamation Cases A ool or Legal Bullying ... 14

Spotlt: Successul Assault Claim ........................................................................ 15Assault/Battery ............................................................................................................ 15

Civil Rights and Civil Liberties Violations .............................................................. 15

Benets and Problems with Litigation ..................................................................... 15

Spotlight: Case Against Co-ops Boycott Resolution Dismissed as a SLAPP Suit .. 16


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camPuS SPeciic iSSueS ........................................................................................... 17

Complaints Under itle VI o the CRA ................................................................... 17

Spotlt: itle VI Complaint Against UC Berkeley............................................. 18

Engaging with University Administrations............................................................. 18

University Discipline Issues ...................................................................................... 19

SurveiLLaNce aNd LaW eNOrcemeN......................................................... 20

Spotlt: Surveillance .............................................................................................. 21

QueSiONS aBOu he LegaLiY O

BOYcO, diveSmeN, aNd SaNciONS (BdS) ....................................... 22

Boycotts ........................................................................................................................ 22

Divestment .................................................................................................................. 22

Wt abot Divestment Resolution Language? ................................................... 23

avaiLaBLe reSOurceS............................................................................................... 24

Organizational Support ............................................................................................. 24

Existing Know Your Rights Materials ...................................................................... 25


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Ptl pso ats

PREPAREPlan your activities in advance to ensure that you have the

necessary permits and authorizations rom local and/or campus authorities,that you understand what regulations may apply, and that youre prepared orpossible backlash, with supporters lined up to back you, a media strategy, and anynecessary legal advice in advance, when possible.

THINK Consider the potential legal implications o your activities, includingpossible civil or criminal sanctions. Review this guide or inormation about issues

that might arise in your activism, and contact us with questions.

RECORD Create a record o incidents that you believe target your speechactivities such as attempts to repress your speech by government/ universityocials / private groups. Record details, such as date, time, location, witnessnames and contact inormation, law enorcement names and badge numbers, whatwas said/done, pictures and other evidence. Conrm in writing any understandingreached in in-person meetings by emailing and asking or a response. Make notes

while the event is resh in your mind. Record all incidents big and small.

FOCUS Focus on your activism! Media work, public actions, advocacycampaigns and legislative work are most eective in getting your message out.Legal action is a last resort in most cases.

GET SUPPORT Contact us when you or your group needs legal or advocacysupport, and to report incidents. We may be able to provide you with additionalresources and connect you with organizational support or other lawyers in yourarea who understand the political and legal issues, i necessary. Call 312-212-0448,email [email protected], or go to palestinelegalsupport.org or help.


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st annt Sp rts

GENERAl PRINCIPlES The First Amendment to the US Constitution limits how governmentactors can restrict your speech. Generally, it does not apply to private actors.First Amendment protections apply to all individuals in the United States,regardless o citizenship or immigration status.

Expressive conduct (like wearing a t-shirt with a message, holding a banner,or perorming street theatre) is also considered protected speech activity. Tere aredierent levels o protection, with pure political speech getting the highest level,and commercial speech getting the least protection rom government and courtintererence. Some orms o speech and expressive conduct are unprotected romgovernment restrictions (see below).

Generally, you can say WHAT you want, but not necessarily WHEN, WHEREand HOW you want to say it.

A government regulation that restricts speech based on WHAT its

expressing (i.e., its CONTENT or its VIEWPOINT,) is highly likely to be struck

down in court i challenged. Tis is because its unusual or the government tobe able to meet its high burden o showing that a rule targeting a certain viewpointserves a compelling government interest and is narrowly ocused on achievingthat interest. It takes an extremely important reason, and a rule that is ocusedenough that it does not sweep in more speech than it intends to restrict, or acourt to accept it. Courts are also suspicious o rules that require prior review(censorship) by government ocials o any orm o speech or expression. Forexample, permits are unconstitutional prior restraints when they are granted or

denied based on the content o the speech rather than on other content-neutralreasons (see ime, Place and Manner Regulations).

Some types o speech are NOT protected by the First Amendment,

and can be restricted or punished:1 ntnt, o tn wos, that are intended and likely to provoke

others to immediately commit illegal acts that breach the peace, or that


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provoke others to immediately react violently to the speakers invective.Speech that creates a public emergency, such as a stampede rom a theateraer a person alsely yells, FIRE! is also not protected. Tese doctrinesare narrowly interpreted and rarely used;

2 ton, which means spreading damaging inormation about othersthat is alse, and or which the deamed individual can sue or moneydamages (see more below);

3 obsn sp o ont that a reasonable person would nd has noliterary, artistic or scientic value; and

4 speech that shows an nt wt ots to ot n lll t canbe the basis or criminal charges o conspiracy (see more on page 7).

Fighting Back AgainstOensive Speech

A racist and

provocative ad,

stating In any

war between the

civilized man and

the savage, sup-

port the civilized

man. Support

Israel. Deeat

Jihad, went up

on buses and intrain stations in

several U.S. cities.

City transporta-

tion agencies

are respond-

ing dierently

because they

have dierentpolicies about the kinds o ads allowed. Even while they denounce the ads as hate-

ul, the ads have been displayed in most cities. The MTA in NY rejected the ad, but a

court decided that the MTAs policy prohibiting ads that demean groups based on

race or religion was unconstitutional because it was a rule based on the CONTENT

o the ad (i.e., it prohibited ads demeaning some groups but not others). The ad was

allowed to run in NY subway stations. Responses to the ads have included counter

ad and media campaigns, community mobilization to protest the ads, demands or

disclaimers or alterations to ad policies, and legal challenges in some circumstances.

San Franciscos Transportation Agency put disclaimers next

to the oensive savage ads. Source: www.usmessageboard.

com/israel-and-palestine/242122-smta-bus-ads-2.html

SPOTlIGHT:
http://www.usmessageboard.com/israel-and-palestine/242122-sfmta-bus-ads-2.htmlhttp://www.usmessageboard.com/israel-and-palestine/242122-sfmta-bus-ads-2.htmlhttp://www.usmessageboard.com/israel-and-palestine/242122-sfmta-bus-ads-2.htmlhttp://www.usmessageboard.com/israel-and-palestine/242122-sfmta-bus-ads-2.html


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Hate speech is a term used to describe speech aimed at an individual or groupthat is oensive or even hateul and may have no value other than to disparage theperson or group based on their identity, such as race, national origin, religion, etc.en s sp tt s ofns n tl nnot b pobt or punishedunless it is incitement, deamation, obscenity, or amounts to harassment. Courtshave struck down laws that attempt to ban hate speech on college campuses andotherwise.

Speech critical o Israeli policies is not hate speech aimed at disparaging areligious or ethnic groups identity, as many detractors claim. Rather, criticismo Israel is political speech addressing an issue o domestic and internationalimportance. Speech that condemns Israel as an apartheid state is not nt-St.Criticism o Jewish people as a whole because o Israels actions is, on the otherhand, anti-Semitic. Disparagement o an individual based on stereotypes oJewish people may also be anti-Semitic hate speech. Similarly, a generalizeddenunciation o Palestinians or Muslims as terrorist may be Islamophobic hate

speech. But criticism o Israeli policies is not hateul towards Jewish people.

Consider responding to racist and oensive speech in ways that expose it orwhat it is and reveal the eect it has on the targeted community. An eective directresponse to a message o hate can have a big positive and educational public impact.

TImE, PlACE AND mANNER REGUlATIONS Local governments can place reasonable restrictions on when, where, andhow you express your views (time, place and manner (PM) regulations). Tese

restrictionsmust be justiedby a substantialgovernmentinterest (e.g.security, public

saety), andcant restrictspeech morethan necessaryto protect thatinterest.

Unequal Applicationo TPM Rules Can Be Challenged

A court rejected Chicagos arrests o Occupy protesters orviolating closure hours o a city park because the closing

hours were not enorced in other circumstances, e.g., or the

Obama victory rally in 2008, during which thousands were

gathered in the same park or hours ater the park closed.

SPOTlIGHT:


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I PM regulations or laws prevent you rom getting your message to yourintended audience or i they are applied dierently to you than to others,you may be able to challenge them in court.

Where, when, and how you protest matters. Public orums (publicsidewalks, public parks, etc.) are open to protests/speeches without permits itheyre not too big, but speech activity can still be limited by reasonable andocused PM rules (e.g., you may be barred rom protesting noisily at a late hour,blocking a street, sidewalk, trac or store entrance, harassing passers-by, using

amplication equipment, etc.). I authorities have allowed public property that isnot a public orum to be used by others as a public orum in the same manner thatyou seek to use it, you may also use it that way (e.g. steps o City Hall, or a FederalPlaza where demonstrations oen take place).

Generally, there are no First Amendment rights on private property.You must have the owners permission to do anything on private property. Youcould be liable or trespass i you dont get permission rst. Even i you enter aprivate place that is open to the public, you may be asked to leave or charged with

trespassing or using that space or something dierent than its intended purpose or example, by staging a sit-in at the Ahava counter o a department store.States have dierent laws about what kinds o expressive activities are allowed atshopping malls, so check the law in your state. Be aware o any such risks whenplanning protest activities and be prepared i you decide to do them anyway.

ON CAmPUS Public universities, like other government entities, are limited in the ways they

can restrict speech, but they can restrict speech activities that constitute a substan-tial disruption to the educational mission, such as speech that disrupts classes orblocks school buildings. Sit-ins or occupations o school buildings, or example,may be subject to discipline i the school claims they are disruptive to the learn-ing environment. Some schools prohibit and punish disruptive behavior, whichcould include protesting inside an event. Tis is arguably unlawul under the FirstAmendment i it is applied in an overly restrictive way that punishes disruptionsthat arent substantial. Some universities speech codes that attempt to restrictracist/ hate/ discriminatory/ uncivil speech have been struck down by courts be-cause they are too broad, and would either restrict protected speech or intimidatepeople rom exercising their ree speech rights (i.e., have a chilling eect).

Private universities are not required to protect students ree speech rights


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unless state law says that they are. Tis is the case in some states, e.g. in Caliorniawhere a law explicitly protects ree speech rights at private institutions, or in NewJersey, Pennsylvania, Washington, and Massachusetts, where courts have ruledthat the state constitution protects ree expression at private institutions. Contact

us with questions about your states laws. A private university may also promise torespect ree speech rights (through its catalogues, regulations, codes o conduct,marketing materials, etc.), in which case students may be able to sue or breach ocontract to compel the university to abide by its promises i those guarantees arentkept. Tis is a step that might be considered i other eorts to enorce rights areunsuccessul.

Restriction

o Speech on

CampusA mock check-

point on a public

university campus

is protected 1stAmendment activity

but the university

can restrict where

you do it (e.g. so

it doesnt block

passageways or en-

trances/exits), when

you do it, and howyou do it (e.g. no

realistic toy guns).

On both public and

private campuses, you may avoid problems by checking your universitys policies

and getting permission or the event when required. Engaging passersby as part o

the checkpoint is likely protected speech. But i such engagement is unwanted, it

may be perceived as harassing and discriminatory, and problems may ensue. Lea-

letting passersby to inorm them about what youre doing may be less provocative

than engaging them in the dramatization. Contact [email protected]

i you have problems with your mock checkpoint events.

A mock checkpoint at Columbia University.Source: Mondoweiss http://mondoweiss.net/2012/10/

complaint-alleging-anti-semitism-at-uc-berkeley-claims-

palestine-activism-creates-echo-o-nazi-regime.html

WHaT aBOuT mOCK CHECKPOINTS?
http://mondoweiss.net/2012/10/complaint-alleging-anti-semitism-at-uc-berkeley-claims-palestine-activism-creates-echo-of-nazi-regime.htmlhttp://mondoweiss.net/2012/10/complaint-alleging-anti-semitism-at-uc-berkeley-claims-palestine-activism-creates-echo-of-nazi-regime.htmlhttp://mondoweiss.net/2012/10/complaint-alleging-anti-semitism-at-uc-berkeley-claims-palestine-activism-creates-echo-of-nazi-regime.htmlhttp://mondoweiss.net/2012/10/complaint-alleging-anti-semitism-at-uc-berkeley-claims-palestine-activism-creates-echo-of-nazi-regime.htmlhttp://mondoweiss.net/2012/10/complaint-alleging-anti-semitism-at-uc-berkeley-claims-palestine-activism-creates-echo-of-nazi-regime.htmlhttp://mondoweiss.net/2012/10/complaint-alleging-anti-semitism-at-uc-berkeley-claims-palestine-activism-creates-echo-of-nazi-regime.html


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cnl isss Yo my

COmmON PROTEST CHARGES Be aware o local state laws and city ordinances that you may be charged

with breaking when you engage in protests and/or civil disobedience, or example:disorderly conduct, disturbing the peace, trespass, resisting arrest, obstructing

justice, loitering, etc.

While you have every right to ask a law enorcement ocer why they are

arresting you or why they are ordering you to leave a protest area, it is oen bestto keep cool and to avoid getting into arguments or physical interactions with lawenorcement agents, who have a lot o discretion in enorcing the law on the street.You can challenge such orders or charges later, in court.

DISRUPTING SPEECH STATUTES I youre planning a mic-check or other protest o an event, check i

your state has a criminal statute prohibiting disruption o public

meetings. Most such laws build in First Amendment protection by requiring asubstantial disruption that eectively prevents the speaker rom nishing hisaddress. Even without such a statute, you may be charged under other statutes,

e.g., or disruptive or disorderly conduct during a speech.

Depending on the statute and the states laws, the disruption usuallyhas to be beyond what is considered customary or normal or the type o meeting.

I you decide to engage in protest actions at an event, understand the

possible legal and disciplinary consequences. Universities are increasinglydisciplining students or vocal protests at speaker events, which they claim

violate school policies that require, e.g., getting prior permission or protests,

or inringing on others ree speech and academic reedom. Tese disciplinaryactions and school policies may or may not be subject to constitutional challenges.

Video-recording events is advisable to document any problemsyou encounter in undertaking your ree speech activities. But avoid recording anaction that could lead to criminal liability. In cases where you decide to video-record anothers event, b w tt yo stts lws y q yo to t


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Distrupting SpeechThe Irvine 11The prosecution and conviction o the Irvine 11,

students rom UC Irvine who briey protested Israeli Ambassador Michael Orens

speech on campus, was based on a Caliornia law that prohibits disrupting a public

meeting. The vigorous prosecution was an unusual response to a protest o a

political event by several students who made verbal statements o a ew seconds

each at dierent points o the speech, without preventing the speaker rom nish-

ing his speech. The students have appealed their convictions or disruption and

conspiracy to cause disruption, challenging the constitutionality o the statute

itsel and its discriminatory application to their conduct. Other protest options in

similar circumstances that would likely be entirely protected by the First Amend-

ment include silent walkouts, holding signs, leaeting outside o the event, or

other actions, when done in ways that allow the speaker to be heard. Note that

even such actions may still result in your removal rom an event.

psson to record others, especially in situations where they dont reasonablyexpect to be recorded (e.g., private meetings, phone calls). In meetings open to thepublic where people can reasonably expect to be recorded, it is best to make clearthat you are recording, and to not hide the recording device. You can checkyourstates law on recording at www.citmedialaw.org/legal-guide/state-law-recording.

mATERIAl SUPPORT It is a crime to provide material support to a designated oreign terrorist

organization (FTO) or its agent. mtl sppot s not only n tonl ony n ot ssts, bt lso nls ss, tnn, xpt o ssstn, o psonnl. Providing your own services, even i thoseservices appear to be very small in time or value, can subject you to the risk o

prosecution i done in some degree o coordination with a FO or its agents. Inone egregious case, a person who allowed a guest to store luggage in his apartmentcontaining socks and ponchos that the government claimed were military gear ora FO was convicted o material support.

The material support laws are vague and their broad scope is uncertain,

encroaching on what was previously understood to be clearly protected First

SPOTlIGHT:
http://www.citmedialaw.org/legal-guide/state-law-recordinghttp://www.citmedialaw.org/legal-guide/state-law-recording


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Amendment activity. Because material support convictions can carry severeconsequences, it is particularly important to consult with an attorney i you areuncertain whether your conduct may be illegal.

Liability or material support depends on whether one knew or

should have known that the individual or organization is a FTO, or a FTOs

agent. Generally, b w o wo yo wokn wt, especially when you

work overseas. Check the designated terrorist lists (both State Department andthe reasury Department at http://www.treasury.gov/oac/downloads/t11sdn.pd)or the names o individuals and organizations with which you are consideringcollaborating. Organizations are added to the lists without notice, so check thesepublic lists regularly i youre uncertain about the status o the organization thatyou want to support, and get legal advice, especially beore you give money orengage in advocacy with an individual or organization whose status or aliationsyou are unsure o.

Thematerialsupportlawsdonotrestrictindependentadvocacy.Advocacy in avor o an organization that is a FO, even by an advocate whoknows its FO status, is protected i it is npnnt that is, it is notcoordinated with or done on behal o the FO or its agents. For example,independent statements expressing solidarity with a FO or individuals aliatedwith it should be outside the scope o the material support statute.

Material Support Donating Money

Donating money to a group that, or example, does charity work with orphans,

but that coordinates its work with the social services arm o a FTO, may constitute

material support. This happened in the Holy Land Foundation case, in which lead-

ers o an Islamic charity organization were convicted or giving humanitarian aid to

zakat (charity) committees that had connections with Hamas, despite the act that

the US government had itsel delivered aid through these committees as well. In

such a situation, i you have done your homework, you should be able to identiy

the organizations with which the charity works. I you cant gure it out, it may be

better to get expert legal advice beore donating to a charity that may itsel be

providing material support under the statute, or to nd an alternative charity that

you can veriy is independent, transparent, and is internationally recognized.

SPOTlIGHT:
http://www.treasury.gov/ofac/downloads/t11sdn.pdfhttp://www.treasury.gov/ofac/downloads/t11sdn.pdf


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The government thinks that providing support or someone working or

or on behal o a FTO can be the same as providing support to the FTO

itsel, but agents o FOs are not typically listed by name on the government lists.

The material support laws have had the eect o chilling speech and

activity that expresses solidarity with Palestinians, since several Palestiniangroups are labeled FOs. i yo onns, yo sol t ll ,but the law should not stop you rom engaging in traditionally protected FirstAmendment activities independently o individuals or organizations.

CONSPIRACy A conspiracy reers simply to any agreement to engage in unlawul

conduct. Te unlawul conduct may be a crime in its own right, or an agreementto engage in lawul conduct in an unlawul manner. It requires that at least

one co-conspirator (even i its an undercover law enorcement agent) dosomething towards implementing the conspiracy which could be something asminor as sending an email or text message. Tere may be independent criminalconsequences, so one could be charged with a conspiracy to do an illegal actwithout ever having done the illegal act itsel. Conspiracy could also be added to acharge or committing the act itsel.

I you want, or example, to start a campaign sending letters o solidarity to

Palestinian political prisoners on hunger strike, and you communicate with

someone who you know is involved with a FTO to organize it, that may be

considered material support.

But a statement expressing solidarity with prisoners that is written and

disseminated totally independently should not be the basis or liability, even i

some o the prisoners you are expressing solidarity with have some relationship

with a FTO.

WHaT aBOuT ADvOCACy RElATED TO A FTO ?


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Potntl Lwsts By o anst Yo

Civil lawsuits may be brought by individuals or entities. Tey may seek either moneyor a court order requiring the party sued (the deendant) to take (or stop) certainactions to remedy wrongdoing.

defamaTiOn An individual can sue another or money damages and other remediesor making alse statements, spoken (slander) or written (libel), to others aboutthem. Te person suing must be able to prove that the statement was alse and thatspreading it caused some actual harm to him/her (e.g. loss o employment, harmto reputation, etc.). Its harder to claim deamation i the statement was aboutan issue important to the public, or i the person suing is a public gure. Public

gures that claim they were deamed also have to show malice i.e., that theperson spread the statement knowing that it was alse.

Truthisalwaysadefense to a deamation claim, no matter how personallydevastating it is to the person. Showing that a statement was an opinion orpolitical hyperbole is also usually a deense.

The Problem with Defamation Cases

A Tool or Legal BullyingIn 2007, A Jewish blogger, Richard Silverstein, was sued in a Caliornia state court

or libel or calling a right-wing pro-Israel commentator a Kahanist swine on his

blog. The trial court dismissed the case as a Strategic Lawsuit Against Public Partici-

pation (SLAPP see Benets and Problems with Litigation, page 16), determin-ing that the comment related to an issue o public interest and to the views o an

outspoken critic o Palestinians. The court rejected the claim that the statement

was made knowing that it was alse, concluding instead that it was an opinion,

not a actual statement. The blogger was awarded attorney ees. The case wasappealed, however, and the Court o Appeals reversed the decision and reinstated

most o the claims. It was only in 2011, back in a trial court, that the charges were

again dismissed by a judge, who ound that Silverstein did not commit libel.

There could be another appeal.

SPOTlIGHT:


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Lawsuitsfordefamationare problematic becausethey target speech,are hard to prove,and money damagesarent high. Teres alsousually a lot o discovery(parties have to provide

the other side withpersonal records), which is very expensive and oen intrusive into personal ororganizational aairs. Tese lawsuits are more likely than others to go to trial sothat a judge or jury can decide the acts.

ASSAUlT/BATTERy I you were threatenedand reasonably believed you were in immediate physical

danger (assault), or i you were actually physically touched and the contactwas uninvited (battery), there may be a civil claim or assault and/or battery.Even an action that doesnt physically harm the other person, such as spitting atsomeone, or grabbing something theyre holding, can be a battery.

CIvIl RIGHTS AND CIvIl l IBERTIES vIOlATIONS I government ocials violate your civil or constitutional rights (e.g. ree

speech, due process, equal rights, police brutality, etc.), you may be able to suethem. Contact an attorney i you believe your rights have been violated by agovernment ocial, including a police ocer, public university administrator, etc.

BENEFITS AND PROBlEmS wITH lITIGATION Lawsuits or violations o constitutional rights may help to advance the

law on social justice issues and protect movements or social change. Lawsuits can result in good precedent that advances social justice, or can

create bad precedent and present a legal setback. In either case, movementsoen continue to press or justice in other ways to create an environment that willbe avorable to the changes they seek. Te oen unavorable legal climate or manysocial justice causes makes using the law more dicult. Lawsuits should thereore

SuccessulAssault Claim

An activist was tackled and sustained injuries

when she shouted out Stop Israeli war crimes

during Israeli PM Netanyahus speech to

Congress in 2011. She sued the ormer AIPAC

staer who attacked her or assault and battery.

The case settled or monetary compensation or

medical expenses and other losses, along with a

public apology rom her attacker.

SPOTlIGHT:


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be thought o as one o many tactics to achieve a movements goals, whenundertaken at the direction o and in close coordination with that movement. Butthey should not be relied on or considered an end in themselves.

Always consider the downsides o litigation. Lawsuits can be expensive

and oten take years with no guarantee o a just resolution. Even a victorycan be subject to a lengthy appeal process that could take years. Meanwhile, themovement may have moved on and your lawsuit may become irrelevant. Being

a party to a lawsuit may cause anxiety and can distract you rom your lie andmovement work. Also consider what may be exposed i the other party is allowedto see your documents and other private or group strategy communications as parto the discovery process in a lawsuit.

I you challenge a lawsuit brought against you as a SLAPP (Strategic Law-

suit Against Public Participation) that aims to silence your legitimate

speech or activities through expensive litigation, the other party could be orcedto pay your attorney ees and other penalties. I you are thinking o ling a lawsuit,

bear in mind that it, too, may be subject to an anti-SLAPP motion. To see i your statehas an anti-SLAPP law, go to www.anti-slapp.org/your-states-ree-speech-protection.

Litigation is usually best viewed as a last resort when your rights have been

violated. While its difcult to achieve social change through a lawsuit alone, manywhose rights have been violated have been vindicated in court. I you believe yourrights were violated in order to repress your Palestine solidarity activism, contact us.

Case Against Co-ops BoycottResolution Dismissed as a SLAPP Suit

CCR and co-counsel won a motion

to strike a lawsuit against Board

Members o the Olympia Food

Co-op ater the Board passed a

resolution to boycott Israeli prod-

ucts. The court ound that the Board

members had acted within their

duties on an issue o public concern,

and that the lawsuit was designed

to hamper their ree speech rights

to engage in a boycott movement

o national proportions. The indi-

viduals who brought the lawsuit,

supported by StandWithUs, were

directed to pay attorney ees and

penalties or bringing the suit. They

have appealed.

SPOTlIGHT:

Olympia BDS activists. Source: Electronic

Intiada http://electronicintiada.net/content/victories-n-american-boycott-movement-gains-momentum/8945
http://electronicintifada.net/content/victories-n-american-boycott-movement-gains-momentum/8945http://electronicintifada.net/content/victories-n-american-boycott-movement-gains-momentum/8945http://electronicintifada.net/content/victories-n-american-boycott-movement-gains-momentum/8945http://electronicintifada.net/content/victories-n-american-boycott-movement-gains-momentum/8945http://electronicintifada.net/content/victories-n-american-boycott-movement-gains-momentum/8945http://electronicintifada.net/content/victories-n-american-boycott-movement-gains-momentum/8945


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cps Sp isss

COmPlAINTS UNDER TITlE vI OF THE CRA Palestinian rights activism and related academic discourse on campuses

has been targeted by claims that it leads to discrimination against pro-

Israel Jewish students, based on a ederal civil rights law. Title VI o the 1964 Civil Rights Act (CRA) prohibits discrimination by

ederally unded programs on the basis o race, color and national origin.

itle VI is enorced against both public and private universities that receive ederalassistance, which includes most universities.

Title VI is enorced by the Department o Education (DOE), and also viaprivate lawsuits in ederal courts. I the DOE nds that a university didnt doenough in response to valid complaints o discrimination against protectedgroups, t nsty ol los ts l nn.

Title VI is interpreted as barring unequal treatment by the university,

both intentional and unintentional, based on race, color, or national origin. itlso pobts sntoy ssnt tt ts ostl nonntbased on speech or conduct directed at a persons race, color, or national origin.Te conduct complained o may be that o university ocials, aculty, or otherstudents, which the university has ailed to appropriately address. o amountto discrimination, the conduct must be so oensive to a reasonable person (anobjective standard), so severe, repeated, and pervasive that it gets in the way o thepersons ability to benet rom educational programs. Tis is a high standard toprove because a lesser standard would risk inringing on First Amendment rightsand invalidating this important Civil Rights law.

Although religion is not a protected category under Title VI, the DOE

adopted a policy that allows it to investigate discrimination against

religious groups that also have actual or perceived shared ancestry or ethniccharacteristics, citing Jews, Muslims and Sikhs as examples.

Pro-Israel organizations promoted the policys adoption, and have since

been using it to challenge criticism o Israeli policies on campuses, allegingthat such criticism creates a hostile anti-Semitic environment or some Jewishstudents, and that the university didnt act eectively to stop it.

Several complaints have been fled with the DOE, and one in ederal court.


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No complaints have succeeded so far. A ederal court and the DOE have both saidthat the speech activities complained o were ree speech that, while critical o Israel,was not discriminatory against Jewish students. Several complaints have remainedunder investigation or over 2 years, much longer than the DOEs 6-month standard.

Title VI claims are directed against the university, not against the student

activists themselves. Although student activists accused o creating a hostileenvironment are oen not a part o the investigation, the circumstances mayavor these students taking the initiative to communicate their side o the story tothe university and/or the DOE. Contact us beore communicating with universityor DOE ocials about itle VI investigations.

Media advocacy and organizing with other students, aculty and sta

on campus to counter the narrative that Palestinian rights activism is

inherently anti-Semitic or hostile to Jewish students is important. Settingthe record straight on the acts o the case is also important. Even i a itle VIcomplaint has no merit, it can cause undeserved damage to a student groupsreputation i it is not eectively countered.

I you believe YOU are acing discrimination because o your race, color,

national origin or religion on your campus, whether rom other studentsor the university itsel, contact us.

ENGAGING wITH UNIvERSITy ADmINISTRATIONS It is like putting money in a retirement account to build relationships with

Title VI ComplaintAgainst UC Berkeley

Actively pro-Israel students at UC Berkeley complained that activities conducted by

Palestinian rights activists on campus, including theatrical checkpoints intended to

illustrate the subjugation o Palestinians in occupied Palestinian territory, created a hostile

environment or them. The original complaint against the University, fled in ederal court,was dismissed. The judge said unequivocally that the activities complained o almost

entirely constituted protected First Amendment political speech that deserves the highest

level o protection. Immediately ater the case was fnally dismissed, the same students

fled a complaint with the DOE alleging virtually identical acts as the lawsuit. The DOE

complaint was also dismissed ater a year-long investigation, along with complaints against

UC Santa Cruz and UC Irvine. DOE confrmed that the activities complained o were speech

activities and did not constitute harassment under Title VI. While the students advocating

or Palestinian rights were not parties in the lawsuit or the DOE complaint, their interestswere implicated because o alse allegations made about their activities. In these cases

generally, there is also the risk that the University will take actions that directly aect the

students or student groups engaged in the activities complained o in order to appease the

complainants. I a Title VI complaint is made or threatened against your school, contact us.

SPOTlIGHT:


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university administrators before you need their assistance, so that atrusting relationship is orged beore situations arise. It may help tominimize problems later i you establish your trustworthiness by getting necessaryapprovals rom administrators or your events and making them amiliar withyour groups mission and goals.

Note that all administrations are dierent some may be openly hostile,

others may be riendly or even-handed. Most administrators want toavoid exposing their institutions to public scrutiny and possible condemnation

or intolerant reactions to student activism. In any case, it is important todocument your communications with university ocials to show your eorts tocommunicate in good aith. I you meet in person with a university ocial, senda written note summarizing your understanding o the conversation and ask ortheir conrmation o your understanding.

Building relationships with aculty, sta, other student groups and

community organizations is important in order to have a support network andconnect your groups work with other social justice issues.

UNIvERSITy DISCIPlINE ISSUES Be amiliar with your schools policies, regulations and codes o conduct

beore organizing events and engaging in activities, and ollow the applicableprocedures to get approval beore an event when necessary.

In public university disciplinary procedures, the university is at least requiredto provide you with some kind o notice o charges against you, and some kind ohearing, but you do NO have the same rights as a criminal deendant (rights toree counsel or even to have counsel present, to call and ask questions o adversewitnesses, to a ormal hearing, to a high burden o proo, etc.). Private universitiescan only be required to ollow the procedures provided by their own manuals.

Make sure that the schools disciplinary procedures are being properly

ollowed. I the university does not ollow its own rules and procedures, that may

be a way to challenge them. Ask or all procedural saeguards that seem reasonable to you, even i

theyre not ocially enorceable under student conduct codes or law. Saeguards torequest include: a clear and reliable recording o the proceedings in question; yourown unocial recording o discussions, investigatory interviews, and hearings;being allowed to bring a trustworthy uninvolved third person (another student,


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aculty, sta member or lawyer) to all discussions, investigations, and hearings;more time to gather papers, witnesses, and other evidence that you think wouldhelp your side o the case. Tey may reuse these requests, but its worth asking.

Consider exposing any abusive, intolerant, unair or discriminatory

administrative conduct to the media and public scrutiny, and do so beoretheres a decision. rying to infuence a air outcome is usually easier thanchallenging the outcome aer the act, when the decision-maker is compelled todeend the decision.

Slln n Lw enontSee Available Materials section (page 24) for more resources.

Law enorcement (local police, ederal agents) can use a number o

methods to spy on you, some o which require permission rom courts.

Assume that your activities and communications may be monitored without yourknowledge, in ways that dont require a court order, or under a court order thatyou dont know about, or even by private surveillance or intrusion. B w ot sks o fnt typs o onton. Experts repeatedly warn thatthere is no such thing as secure electronic communication. Law enorcementand private organizations oen monitor activists online activities and use theinormation against them in criminal cases or otherwise.

Infltration o organizations by undercover agents or inormants is

common. Be aware o people who suggest and encourage violent/unlawul action,whose background you dont know, who are divisive, or who appear suddenly andbecome actively engaged without prior known activism in the area. Agents canperorm illegal activities and lie to you without penalty.

I conronted by law enorcement, you may be required to provide your

name and address, depending on your states laws.Yo not qto sy nytn ls, even i pressured to do so. I you decide to speak to lawenorcement, be aware that nytn yo sy n b s nst yo, yo

onty o op. I you decide not to talk to law enorcement, stt llytt yo dont wish to talk, and would like to speak with your attorney. Eveni you want to speak with law enorcement,t s bst to lwy psnt,splly yo n nstton o n st.

Lying about anything, even your name, to any law enorcement could be

a criminal oense.Silence and a lawyer may be best in any situation involving


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law enorcement potentially investigating you.

I law enorcement asks to search you or your home, you can say explicitly

I do not consent to a search. You may be deemed to have consented to asearch by your actions, e.g. by opening the door, letting them in, etc. I they cometo your home and you do not want to talk to them or let them in, you may talkthrough the door or step outside, and tell them your lawyer will contact them.

I law enorcement has a search warrant, you can demand to seeit beoreletting them in. o make sure it is a valid warrant, check or a judges signature,specic language about where and what the search is or, and the correct nameand/or address. You could be charged with obstruction o justice i you try to stopan authorized search rom taking place. I you believe a search is not authorized,tell law enorcement but do not try to stop them. You can challenge the searchlater i anything they nd is used against you. Be sure to record the ocers namesand badge numbers and what they did during the search.

I you want to fnd out what inormation the government is collectingabout you, consider using tools like the ederal Freedom o Inormation

Act (FOIA) and state public records request laws to discover inormation/records that ederal, state or municipal government agencies or ocials have aboutyou or your group. Tese requests can also be used in other contexts to exposecommunications and documents coming rom government actors, governmentor public university contracts, investments, or other relationships with targetcompanies, etc. Check your states public records request laws some states

restrict such requests to residents o that state. Sustained ollow-up may be neededto obtain requested documents i the public agency is resistant to your requestand to ollow up on delays, etc. Contact us or resources to help you with suchrequests.

Despite all o these warnings, be smart, rather than paranoid do not letit hamper your activism!

Surveillance

Local police and the FBI have been investigating Muslim communities and Pales-tinian rights activists around the country in various ways that may be illegal, some

o which are being challenged in court. The use o inormants has been conrmed

in many cases, including the investigation o activists in the Midwest and in most

material support cases. I you suspect you or your group or community is under

surveillance, contact a lawyer. Also consider ling a reedom o inormation request

(state or ederal) to nd out what inormation is being collected about you or your

group by government ofcials.

SPOTlIGHT:


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Qstons bot tLlty o Boyott, dstnt,n Sntons BdS

BOyCOTTS Boycottstoprotesthumanrightsviolationsareprotectedactivity

n t st annt.

Therearefederalanti-boycottregulations that prohibit participating in aboycott against a riendly country i the boycott is called by a oreign

country. Tese regulations prohibit U.S. commercial support or the ArabLeague countries boycott against Israel. Tey do NO apply to boycotts thathave not been called by a oreign country, such as a boycott called by a oreignorganization or a coalition o oreign NGOs, including the Palestinian BDSNational Committee (BNC). Tey also do NO apply to boycotts called by aU.S. organization or coalition.

Insummary,theseregulationsdonotapplytohumanrightsboycotts

nst isl, o to boyotts o opns o ot ntts tt pot o,

sppot, o lp to ntn isls opton o Plstn o ts sbjtono Plstnns.

diveSTmenT Divestment is not covered by the anti-boycott regulations.

Divestment resolutions must respect whats called fduciary duty.

Te trustees or managers o a und have a duciary duty to manage assetsentrusted to them or the benet o the assets owners and without injuringowners interests. But it is NO a breach o this duciary duty to divest or humanrights reasons. When making investment and divestment decisions, trust undmanagers may consider reasons related to human rights in addition to consideringprot, loss, and risk actors. l ltons n t llow stnt bs


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on Solly rsponsbl instn Sri t w ltnt nstntso ql l to t popts to b st lbl.

But the trustee does have sole discretion to manage unds, so a resolutionthat usurps in any way this discretion is unenorceable. Fund trustees maythereore be asked to make decisions to sell entrusted unds based on SRI criteria

as long as the divestment resolution does not intrude in any way on the trusteesdiscretion to implement the resolution how and when they decide, in their solediscretion. Te divestment resolution must also allow trustees to implement itwithout injuring the interests o und owners in any way that owners have notauthorized.

So, to avoid problems, divestment resolution language demanding SRI,including divestment rom Israel or rom companies proting rom theOccupation, must comply with two principles that recognize the discretionary

powers o und trustees:

1 Tere must be alternative investments o equal value available to replacedivested properties, as determined by und trustees; and

2 divestment resolutions cannot dictate to und trustees when or how todivest or identiy the specic replacement(s) or divested assets.

Language to use or a Thereore clause: Divestment language may say, e.g.,

We request the trustees to divest rom Caterpillar, at such time and in such

manner as they may determine. Or: We ask the trustees to divest rom companies

directly supporting or proting rom the Israeli occupation o Palestinian land, asthey may identiy as appropriate or such action.

Language to avoid: Divestment resolution language that orders trustees to divest

(trustees shall divest ) or to divest immediately or by some other externally

imposed deadline would likely not be enorceable, because it intereres with the

trustees discretion about when and how to divest.

WHaT aBOuT DIvESTmENT lANGUAGE ?


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albl rsos

ORGANIzATIONAl SUPPORT PalestineSolidarityLegalSupport is an initiative supported by the

Center or Constitutional Rights that works in collaboration with the NationalLawyers Guild and other organizations. PSLS works to protect and advance theconstitutional rights o Palestinian rights activists across the U.S. Go toPalestineLegalSupport.org to report incidents, ask or advice, representationand reerrals, and or general advocacy support.

The Center or Constitutional Rights (CCR) works to advance and protectconstitutional and human rights through litigation and advocacy. It has workedextensively to promote Palestinian human rights and towards accountability or

violations o Palestinian rights. Go to ccrjustice.orgor more inormation.

The National Lawyers Guild (NLG) generally deends social justice movements,and is a primary resource or Palestine solidarity legal work. Te Free PalestineSubcommittee o the International Committee provides ree legal counsel whenpossible, prepares advocacy letters and legal memos, and advises BDS activists andcampaigns. Local NLG chapters can also provide Legal Observers or actions andevents where law enorcement encounters may occur. Go to

nlginternational.org/com/main.php?cid=11or more inormation. The Student Speech Working Group includes several organizations dedicated

to supporting Muslim and Palestinian rights student activism. CCR, the NLG,Asian Law Caucus, Council on American-Islamic Relations (CAIR)-San FranciscoBay Area, American Muslims or Palestine, Jewish Voice or Peace, and otherindividuals and organizations, are involved.

Local aliates o CAIR, the American-Arab Anti-Discrimination Committee

(ADC), and the Muslim Legal Deense Fund also may be able to provide legaladvice or representation to Muslims and Arabs acing legal issues.

ACLU aliates around the country have provided ree legal advice andrepresentation to Palestine activists on First Amendment cases and may be asource or legal advice or representation on matters presenting other civil rightsand liberties issues.

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http://palestinelegalsupport.org/http://ccrjustice.org/http://nlginternational.org/com/main.php?cid=11http://nlginternational.org/com/main.php?cid=11http://ccrjustice.org/http://palestinelegalsupport.org/


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ExISTING KNOw yOUR RIGHTS mATERIAlS A collection o resources on topics relevant to Palestinian solidarity activism is

available on the Resources page at PalestineLegalSupport.org. Check the websiteor new materials and to learn more about these issues. Also look or PalestineSolidarity Legal Support on witter, @pal_legal, or updates.

Free speech and protest rights:

Look at ACLU websites in your state or materials addressing dierent issues.E.g., or Caliornia ree speech and protest rights: https://www.aclunc.org/issues/reedom_o_press_and_speech/rights_o_demonstrators/index.shtml.

Surveillance/Law Enorcement

v ccr I an Agent Knocks:http://ccrjustice.org/ianagentknocks;

v NLg You Have the Right to RemainSilent: http://www.nlg.org/publications-you-have-the-right-to-remain-silent/;

v acLu http://www.aclu.org/les/kyr/kyr_english.pd

KnowYourRightspresentationsoered:

v o qst psnttons tlo to ss Plstn solty ts,

l [email protected].

v T NLg-NYs msl dns Pojt, fnt cair pts, n tcLear cln t cuNY Lw Sool give presentations on surveillance, lawenorcement issues, travel, etc.

Legal Observers: Your local NLG chapter may be able to provide LegalObservers or your protests, marches or demonstrations to monitor lawenorcement activity /violations. Go to NLg.oor inormation about a local

chapter. Te local aliate must be contacted suciently in advance to line upvolunteer lawyers or other trained legal observers.

Ts noton s not ntn s sbsttt o ll .Pls ontt s o not ttony o bot yo sp ss.

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http://palestinelegalsupport.org/https://www.aclunc.org/issues/freedom_of_press_and_speech/rights_of_demonstrators/index.shtmlhttps://www.aclunc.org/issues/freedom_of_press_and_speech/rights_of_demonstrators/index.shtmlhttp://ccrjustice.org/ifanagentknockshttp://www.nlg.org/publications/you-have-the-right-to-remain-silent/http://www.nlg.org/publications/you-have-the-right-to-remain-silent/http://www.aclu.org/files/kyr/kyr_english.pdfhttp://www.aclu.org/files/kyr/kyr_english.pdfhttp://nlg.org/http://nlg.org/http://www.aclu.org/files/kyr/kyr_english.pdfhttp://www.aclu.org/files/kyr/kyr_english.pdfhttp://www.nlg.org/publications/you-have-the-right-to-remain-silent/http://www.nlg.org/publications/you-have-the-right-to-remain-silent/http://ccrjustice.org/ifanagentknockshttps://www.aclunc.org/issues/freedom_of_press_and_speech/rights_of_demonstrators/index.shtmlhttps://www.aclunc.org/issues/freedom_of_press_and_speech/rights_of_demonstrators/index.shtmlhttp://palestinelegalsupport.org/


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Legal and Tactical Guide Palestinian Human Rights Advocacy in the U.S.

Documents

Transcript of Legal and Tactical Guide Palestinian Human Rights Advocacy in the U.S.