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Saturday, October 28, 2023

More on deactivating SJP

The ADL and the Brandeis Center for Human Rights sent a letter to 200 university presidents, urging them to investigate, and presumably defund and deactivate, student chapters of Students for Justice in Palestine. I mentioned Florida's efforts and FIRE's letter to Florida university presidents. Eugene Volokh argues this turns on a factual question that the public does not know and that the university might know--the degree of coordination between individual SJP chapters, national SJP, and Hamas. Under Holder v. Humanitarian Law Project, federal material support statute does not (and probably cannot) reach independent, non-coordinated speech, even in support of a terrorist organization or its cause and efforts. The question is whether SJP's claim to be "part of" Hamas is real or rhetorical hyperbole and the degree of independence among Hamas, national SJP, and individual SJP chapters.

Needless to say, the ADL letter (like the initial memo from the Chancellor of the Florida State University System) is not as nuanced as Eugene's analysis. It lists a lot of stuff--"'SJP chapters are not advocating for Palestinian rights; they are celebrating terrorism'" and promoted anti-Israel channels--that is pure, constitutionally protected speech. The vaunted SJP "toolkit" encourages fliers, protests, teach-ins, and other events on U.S. campuses. This seems far from the activities in Holder--training designated groups in using international law and international organizations to get things and engaging in advocacy for these groups.

The ADL letter ends with the usual:

We fully recognize and support students’ First Amendment rights to freedom of speech, even odious speech. We remain committed, however, to calling out and speaking out against antisemitism and anti-Israel bias. And we certainly cannot sit idly by as a student organization provides vocal and potentially material support to Hamas, a designated Foreign Terrorist Organization.

Note the key move: It believes SJP is doing two things wrong--providing vocal support to Hamas and (potentially) providing material support. That is, it acknowledges that vocal support is not material support, at least without more. But vocal support for terrorism--just saying out loud terrorism is a good thing or that some act is not terrorism but resistance--should (must?) remain constitutionally protected, even under the broadest reading of Holder.

Posted by Howard Wasserman on October 28, 2023 at 04:51 PM in First Amendment, Howard Wasserman | Permalink


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