In a significant victory for free speech, a California court has ruled in favor of a Palestinian American activist who was sued for defamation by a former Israeli soldier over a Facebook post.
The suit was explicitly meant to bully, silence and smear activists for Palestinian rights.
The soldier was represented by Shurat HaDin, an Israeli lawfare group with ties to Mossad, Israel’s spying and assassination agency – and whose co-founder led an extremist cell that carried out attacks on Palestinian civilians in the 1980s.
On 1 March, the court not only rebuked the request to apply Israeli law, but entirely dismissed the lawsuit and upheld the activist’s speech as a matter of public interest.On 1 June 2018, Suhair Nafal, who was based in Chicago at the time, wrote a post on Facebook about Razan al-Najjar, the young medic who was shot and killed that day by Israeli snipers.
Al-Najjar was helping treat and evacuate wounded protesters participating in the Great March of Return in the Gaza Strip when she was shot, wearing clothing clearly identifying her as a medic.
Angered over the killing, Nafal included a photo of al-Najjar in her post, initially alongside a photo of an American-born Israeli soldier that had been used by the army as a marketing tool.
The image of Rebecca Rumshiskaya – a young woman in full military gear standing in the desert, smiling and holding a large M16 rifle – had been posted to the official Facebook page of the Israeli army in May 2014, but has since apparently been deleted.
That photo went viral after the killing of al-Najjar, even though Rumshiskaya was not involved in the war crime at that time and had reportedly left the army three years prior. Court documents show that she currently lives in Israel and is a dual US-Israeli citizen.
In her post, Nafal did not accuse Rumshiskaya of killing al-Najjar. The image was meant to highlight the injustice of a foreigner without ties to Palestine moving across the world to shoot dead an indigenous Palestinian, she told The Electronic Intifada.
Nafal said she edited her post shortly after it was published and removed the photo of Rumshiskaya, replacing it with an image of another unidentified female Israeli soldier.
Her post went viral and she had received threatening messages and comments on articles in Israeli media.
“But then it slowly went away and nothing happened – until a few months ago,” she told The Electronic Intifada.
Last September, nearly two years after Nafal published the post, she was notified that Rumshiskaya was suing her for defamation.
Israel-based attorney Nitsana Darshan-Leitner, director of Shurat HaDin, worked with California lawyer Michael Weiser to petition the court to override California’s defamation laws – and apply much more draconian Israeli law instead.
Israel’s defamation laws have a statute of limitations period of seven years, whereas California’s are limited to one year. Israel’s law also applies criminal penalties for defamation – up to one year in prison – while defamation is a civil matter in California.They claimed that Nafal’s implications that Rumshiskaya “committed murder and a war crime as part of her job” as an Israeli soldier was an act of libel, and that Israel “has a crucial interest that libel claims arising from such allegations will be heard on their merits and not be dismissed on limitation grounds in particular online cases.”
War on BDS
Shurat HaDin uses lawfare – spurious and politically motivated legal proceedings – in an effort to harass, silence and deter supporters of Palestinian rights.
For example, the group has used this tactic to bully a US trade union over its support of the boycott, divestment and sanctions (BDS) campaign for Palestinian rights, and in 2018 filed a lawsuit against activists in New Zealand for helping persuade pop star Lorde to cancel a Tel Aviv concert in accordance with the BDS call.
Shurat HaDin did not win these lawsuits, but they did waste money and time for defendants.
Notably, Darshan-Leitner boasted to The Jerusalem Post in September that her lawsuit was simply an opportunity to threaten and intimidate activists for Palestinian rights.
“Rebecca’s lawsuit is the spearhead of our struggle against the global boycott movement against Israel,” Darshan-Leitner said.
“This is a message to all BDS activists, who should know that they too may be held responsible for their anti-Zionist activity and may even need to pay a heavy price,” she added.
Shurat HaDin had raised more than $280,000 in donations to support its spurious lawsuit against Nafal.
“This wasn’t just a regular lawsuit,” Nafal’s lawyer Haytham Faraj told The Electronic Intifada. “We filed a motion to dismiss, and we immediately got hit with a motion asking the judge to consider the application of Israeli law.”
Shurat HaDin produced lengthy declarations from handpicked experts arguing why Israeli law should apply in this case, as well as Hebrew-language copies of Israeli defamation law translated into English.
“Although we were able to win at a relatively early stage,” Faraj added, “they were ready for a fight. It was systematic.”
In a court document, Faraj called the suit “an example of the most vile type of attempted oppression of free speech by so-called private actors in conspiracy with a foreign government” to silence the free speech rights of a US citizen in expressing criticism of a foreign country “and its official actions.”
Not only did the judge dismiss the lawsuit against Nafal on procedural grounds, but Nafal and Faraj countersued under a California law that allows sanctions against anyone who files a lawsuit seeking to curb speech about matters of public interest.
Nafal’s lawyers called for the court to sanction Darshan-Leitner over her “unauthorized practice of law” in California, and Weiser, as well, for aiding her.
The court, however, did not grant that request.
Winning this lawsuit is a significant victory for activists for Palestinian rights, Faraj said.
It is a reminder that even with the Israel lobby’s well-funded efforts to silence criticism of Israel, that criticism is protected free speech.The judge’s ruling that Nafal’s Facebook posts were political speech on a topic of public interest and therefore subject to the protections of California law “means that even if this lawsuit had been brought within the time allowed in California, we would have won on substance – not just on procedure,” Faraj explained.
California statute seeks to prevent anyone from trying to chill speech on matters of public interest by abusing the judicial process, Faraj added.
“The judge found that the Israeli soldier was guilty of just that and granted our request to have all our costs and fees recovered,” he said. “So instead of [Nafal] paying the Israeli agent, the Israeli agent must now pay [Nafal].”
Faraj will soon be submitting a motion to recover damages after tabulating the time he and Nafal spent fighting this lawsuit.
But while the lawsuit was handily defeated, Faraj said he is not quick to celebrate.
“Even when you win, you start to self-censor,” he explained, adding that the purpose of lawsuits like these is to scare activists, students and scholars into silencing themselves, and to waste their time and financial resources.
However, Nafal said that this process has only emboldened her.
“I was self-censoring the whole time while this was going on, because I know they were watching,” she said.
“But now, I feel this sense of empowerment and I feel protected by this state and this judge … And I want to speak louder.”