Amherst umass

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</div><div>===</div><div><h2 class="entry-title single-title" itemprop="headline">UMass Amherst faces new lawsuit over event implicating Israeli-Palestinian conflict</h2>

    
            <p class="byline">
    <span itemprop="author" itemscope="" itemtype="https://schema.org/Person">
    by <a href="https://www.thefire.org/author/adamsteinbaugh/" title="Posts by Adam Steinbaugh" rel="author" itemprop="url"><span itemprop="name">Adam Steinbaugh</span></a>
        </span>

        <span class="last-update">April 29, 2019</span>
                  <section class="entry-content" itemprop="articleBody">

This afternoon, a Massachusetts court heard initial arguments in a <a href="https://www.thefire.org/complaint-against-umass-amherst/">lawsuit</a> that seeks to compel the University of Massachusetts at Amherst to cancel an <a href="https://www.umass.edu/resistancestudies/events/not-backing-down-israel-free-speech-and-battle-palestinian-right">upcoming panel</a> discussion <a href="https://www.mediaed.org/pdfs/Not-Backing-Down-Press-Release.pdf">concerning</a> “the increasingly vitriolic debate over U.S. support for Israel.” The lawsuit is the latest example of an attempt to use the <a href="https://www.state.gov/s/rga/resources/267538.htm">State Department’s definition of anti-Semitism</a> — and <a href="https://www.thefire.org/a-problem-predicted-recent-calls-for-censorship-invoke-unconstitutional-definition-of-anti-semitism/">confusion</a>

over whether it has been adopted by the Department of Education’s

Office for Civil Rights — as a legal argument for campus censorship.

While the court has not yet ruled, one lawyer in attendance <a href="https://twitter.com/mdslock/status/1122936538273320963">reported</a> that the judge was “unimpressed with the bid to censor the event.”

The <a href="https://www.umass.edu/resistancestudies/events/not-backing-down-israel-free-speech-and-battle-palestinian-right">event</a>,

titled “Not Backing Down: Israel, Free Speech, and the Battle for

Palestinian Human Rights,” is set to take place May 4 on UMass’ campus,

and features speakers including Pink Floyd’s Roger Waters, political

activist <a href="https://www.thefire.org/new-york-lawmakers-urge-cuny-to-rescind-commencement-speaker-invitation/">Linda Sarsour</a>, Temple University professor <a href="https://www.thefire.org/breaking-temple-will-not-punish-marc-lamont-hill-issues-condemnation/">Marc Lamont Hill</a>,

and others. The event was organized by UMass professor Sut Jhally and

co-sponsored by his Media Education Foundation as well as several

academic departments.

The event has garnered criticism from several groups. The Anti-Defamation League of New England <a href="https://twitter.com/ADL_NewEngland/status/1115690850590306304">called on</a>

the university’s administration to deploy a more-speech response by

criticizing and distancing itself from the event. While recognizing that

the event was protected by the First Amendment, others have <a href="https://amchainitiative.org/wp-content/uploads/2019/04/UMass-80-Org-Letter-4.23.19.pdf">called on</a>

the administration to rescind any university sponsorship and to

prohibit faculty members from using “their academic position or the

university’s name or resources to promote a personal, political agenda”

that they believe imperils the safety of students. In a <a href="https://massgop.com/umass-amherst-to-host-anti-israel-event/">press release</a>,

the Massachusetts Republican Party said the event was “in violation of

the federal government’s guidelines regarding anti-Semitism,” citing the

State Department definition’s examples of “claiming that the existence

of the State of Israel is a racist endeavor” and “drawing comparisons of

contemporary Israeli policy to that of Nazis.”

The <a href="https://www.thefire.org/complaint-against-umass-amherst/">lawsuit</a> and <a href="https://www.thefire.org/motion-for-preliminary-injunction-against-umass-amherst/">motion for a preliminary injunction</a>,

filed Thursday in a Massachusetts state court by three anonymous UMass

students, pick up this argument and attempt to give it legal force. The

motion for injunctive relief avers that because the Department of

Education has “adopted” the State Department’s definition, “allowing a

faculty-sponsored BDS event on campus violates the prohibition against

anti-Semitism on campuses of the United [States] Department of

Education.” Similarly, the plaintiffs argue that because the university <a href="https://www.umass.edu/newsoffice/article/chancellor%E2%80%99s-statement-bds">opposes an academic boycott of Israel</a>, the university is legally bound to prevent advocacy of such a boycott on its campus.

The lawsuit wishes away obvious First

Amendment problems. First and foremost, a public university that makes

space available to the general public cannot limit access to those

resources on the basis of the speakers’ views. Nor does the university

have the power to rein in the “sponsorship” of the event by professors

or academic departments, which the university <a href="https://www.umass.edu/newsoffice/article/university-statement-may-4-event">correctly acknowledges</a>

have academic freedom rights to make decisions free from institutional

censorship. While the university opposes an academic boycott of Israel,

it does not follow that the university can or should censor those who

argue that the university is wrong to do so.

Second, as the <a href="https://www.thefire.org/umass-amherst-response-to-request-for-injunctive-relief/">response</a>,

filed today, correctly observes, an injunction against speech on a

university campus would amount to a prior restraint, one of the most

egregious forms of censorship. While the university may penalize

unlawful expression after it occurs, it cannot restrain expression based

on the remote possibility that someone might say something unlawful.

Third, it is highly doubtful that the

State Department’s definition has legal force, precluding a court from

ruling that the plaintiffs are likely to succeed on the merits of their

claims (a prerequisite to obtaining a preliminary injunction), at least

on this basis. While the Department of Education’s Office for Civil Rights <a href="https://www.thefire.org/ocrs-use-of-overly-broad-anti-semitism-definition-threatens-student-and-faculty-speech/">said it would use</a> the definition <a href="https://www.nytimes.com/2018/09/11/us/politics/rutgers-jewish-education-civil-rights.html">in a letter reopening</a> <a href="https://www.thefire.org/ocrs-use-of-overly-broad-anti-semitism-definition-threatens-student-and-faculty-speech/">a 2011 case at Rutgers University</a> regarding

alleged discrimination against Jewish students at a public event, the

Department later distanced itself from that letter, <a href="https://www.thefire.org/ocrs-use-of-overly-broad-anti-semitism-definition-threatens-student-and-faculty-speech/">saying</a>

that it “has not adopted any formal definition of anti-Semitism.” Even

if OCR or the Department of Education resolved this ambiguity by

asserting that the definition is enforceable, and did so in a manner

compliant with administrative law, the definition would not be

constitutional.

FIRE <a href="https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/">has</a> <a href="https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate/">repeatedly</a> <a href="https://www.thefire.org/problematic-anti-semitism-bill-passes-in-south-carolina/">predicted</a> that

the confusion over whether the definition has been adopted by OCR would

be used to bolster calls for censorship of students and faculty members

critical of the state of Israel. Unfortunately, that prediction has

been <a href="https://www.thefire.org/a-problem-predicted-recent-calls-for-censorship-invoke-unconstitutional-definition-of-anti-semitism/">borne out</a>,

and the deployment here is perhaps the most aggressive attempt to

harness OCR’s use of the definition for unconstitutional ends.

FIRE <a href="https://www.thefire.org/co-founder-of-bds-movement-denied-entry-to-us-ahead-of-campus-speaking-events/">takes no position</a> on the Israeli-Palestinian conflict or movements arising therefrom, such as BDS, beyond <a href="https://www.thefire.org/lawrence-summerss-academic-freedom-bds-speech/">pointing out</a> that academic boycotts, or censorship of political opponents or supporters of BDS, might <a href="https://www.thefire.org/new-york-governors-blacklist-of-pro-bds-advocates-raises-concerns-for-campus-speech/">endanger</a>

academic or expressive freedom. This meritless lawsuit would have the

university violate the First Amendment to censor BDS proponents — the

very academic censorship that underlies the university’s <a href="https://www.umass.edu/newsoffice/article/chancellor%E2%80%99s-statement-bds">opposition</a> to academic boycotts of Israel.

Update (May 2, 2019, 3:20 p.m.): According to a <a href="https://www.facebook.com/JVPWMASS/videos/399766417296963/">livestream</a>

of representatives of Jewish Voice for Peace of Western Massachusetts,

which had intervened in defense of the event,  the judge denied the

injunction on First Amendment grounds, as an injunction would amount to a

prior restraint on speech. Rick Sobey of the Boston Herald <a href="https://twitter.com/Rick_Sobey/status/1124024039079579650">quotes</a>

the judge: “I can’t enjoin a forum just because someone may say

something at that forum that fits someone’s definition of anti-Semitism

or racism or homophobia or anything else.”

That’s the right result and, barring an unwise appeal, should bring an end to this frivolous lawsuit.

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        Schools: 
                            <a href="https://www.thefire.org/schools/university-of-massachusetts-amherst/">University of Massachusetts – Amherst</a></div><div>===<br /></div>