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The sight of masked, encamped protesters breaking into buildings,
barring Jewish students from classes and spewing
Jew-hatred has drawn
condemnation from President Biden,
revealed too many college administrators’
fecklessness and confirmed that
a strain of virulent antisemitism
courses through pro-Palestinian protests (which too many pundits chose to ignore or rationalize).
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But according to a new lawsuit, the protests might have also revealed a disturbing relationship between Hamas and two U.S.-based groups, American Muslims for Palestine (AMP) and National Students for Justice in Palestine (NSJP).
International law firm Greenberg Traurig, in a news release last week,
announced a lawsuit seeking “compensatory damages for nine American and Israeli victims of the attack in which Hamas killed 1,200 people and took 240 people hostage, alleg[ing] that AMP and NSJP work in the United States as collaborators and propagandists for Hamas. Hamas is a United States designated Foreign Terrorist Organization.” The suit further argues that defendants “are merely the current version of several prior entities that were already determined by the U.S. government to be supporters of Hamas.” According to the complaint, AMP is the “rebranded” group designed to fill the loss of the previously shut down Islamic Association for Palestine. The complaint alleges overlap in leadership and staffing. (Furthermore, according to the suit, AMP announced in 2010 the “creation of NSJP — AMP’s new on-campus sub-brand — designed to control the management, financing, and messaging of SJP chapters across the country.”)
The defendants have vigorously denied the charges. However, if proved, the allegation could end up as shocking as the bans on the
Holy Land Foundation for Relief and Development and certain
other Palestinian charities for supporting international terrorist organizations.
The suit raises obvious First Amendment concerns. The law firm points out that “free speech has never included the active support of terrorism, and it has never protected the destruction of private property or the brutalization of innocent men, women, and children of many faiths, not just Jews.” The lawsuit claims AMP and NSJP are not independent activist groups but instead “support and further the goals and directives of Hamas” and have been “intentionally extending their aid to fomenting chaos, violence, and terror in the United States.”
“There is a legal chasm between independent advocacy and knowingly serving as the propaganda and recruiting wing of a Foreign Terrorist Organization in the United States. AMP and NSJP are the latter,” the plaintiffs allege. “They are not innocent advocacy groups, but rather the propaganda arm of a terrorist organization operating in plain sight.”
Certainly, private actors are constitutionally protected to act as cheerleaders for Hamas, provided they do not
directly incite violence. American students and student groups are entitled to protection from governmental action for core political speech — even outrageous, heinous speech reeking of Jew-hatred.
However, “
material support” for a foreign terrorist organization even in the form of speech is outlawed under U.S. Code. (“The term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel ... and transportation.”)
A
2010 Supreme Court opinion written by Chief Justice John G. Roberts Jr. is on point. “Congress has prohibited the provision of ‘material support or resources’ to certain foreign organizations that engage in terrorist activity,” Roberts wrote. “That prohibition is based on a finding that the specified organizations ‘are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.’”
In short, both conduct
and speech may be prosecuted if material support is “coordinated with or under the direction of a designated foreign terrorist organization.” However, “independent advocacy that might be viewed as promoting the group’s legitimacy is not covered.” Roberts’s opinion held that the statute is not on its face unconstitutional, while leaving open that it might run afoul of constitutional protection in some contexts.
The lawsuit against AMP and NSJP, therefore, will turn on a detailed factual investigation. Constitutional scholar Laurence Tribe tells me, “Unless there are credible allegations of direct assistance, as in training and the like, to Hamas and affiliates terrorist groups, the 1st Amendment seems likely to pose a huge obstacle.” To sidestep First Amendment concerns, the plaintiffs must prove that AMP and its college brand, NSJP, are intertwined with Hamas (i.e., acting at the behest of or in coordination with Hamas), not simply an echo chamber regurgitating Hamas’s public declarations. (To that end, the Institute for the Study of Global Antisemitism and Policy released
a report that might help trace funding, as well as connections to other groups parroting Hamas rhetoric, and thereby substantiate the suit’s allegations.)
Seasoned litigators stress to me that finding a “direct connection” between Hamas and the defendant groups will be key. The lawsuit alleges, for example, that “the language of the Hamas-authored disinformation campaign appeared in NSJP propaganda across social media and on college campuses” within hours of the Oct. 7 attack. The very next day, according to the complaint, NSJP released a “toolkit” guiding the groups’ activities and declaring the commencement of a “Unity Intifada” wherein “NSJP confirmed it was ‘PART of this movement, not in solidarity with this movement.’” Still, it is one thing for protesters to feel that they are “part of” a terrorist movement; it is quite another to prove coordination or direction.
Without commenting on the merits of the suit, Mimi Rocah, district attorney of Westchester County, N.Y., and former federal prosecutor, tells me, “One of the important functions of lawsuits like this is that, in addition to possible compensation for victims, a lot of information will come to light through the discovery process about who is behind some of these more violent protests, which are not protected by the First Amendment.”
Recent violent actions on college campus
, including occupation and destruction of university property
, provide grist for the suit:
Defendants’ members and allies responded to [Hamas’s] command by engaging in illegal acts of domestic terrorism — including trespass, assault, vandalism, robbery, destruction of property, harassment, and intimidation — to further the “resistance” efforts.
The complaint’s allegations are just that —
allegations — at this point. While Roberts’s ruling and the specific allegations likely will help the suit survive a motion to dismiss, the burden will be on the plaintiffs to prove the connections, if any, between the defendants and Hamas. No one should prejudge the results — nor minimize the suit’s potential impact.
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