[News] US Palestinian activist defeats Israeli "defamation" lawsuit

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Sun Mar 14 11:26:44 EDT 2021


https://electronicintifada.net/blogs/nora-barrows-friedman/us-palestinian-activist-defeats-israeli-defamation-lawsuit
US
Palestinian activist defeats Israeli "defamation" lawsuit

Nora Barrows-Friedman
<https://electronicintifada.net/people/nora-barrows-friedman> - 12 March
2021
------------------------------
[image: Two medics stand]

Palestinian medic Razan al-Najjar treats herself for tear gas inhalation
during the Great March of Return protests on 1 April 2018. She was killed
by an Israeli sniper two months later.
APA images

In a significant victory for free speech, a California court has ruled in
favor
<https://www.adc.org/breaking-california-judge-rules-against-attempts-to-silence-palestinian-activist-a/>
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
<https://electronicintifada.net/tags/shurat-hadin>, an Israeli lawfare
group with ties
<https://electronicintifada.net/blogs/asa-winstanley/israeli-law-center-shurat-hadin-admits-mossad-ties>
to Mossad, Israel’s spying and assassination agency – and whose co-founder led
an extremist cell
<https://electronicintifada.net/blogs/asa-winstanley/lawyer-israeli-anti-terror-group-was-convicted-terrorist>
that carried out attacks on Palestinian civilians in the 1980s.

As part of the lawsuit
<https://www.jpost.com/israel-news/former-idf-soldier-sues-bds-activist-who-slandered-her-online-for-6m-643330>,
the group requested that the California court apply Israeli defamation laws
in order to attach criminal penalties
<https://www.arabamericannews.com/2021/03/05/activist-wins-defamation-suit-brought-against-her-by-israeli-soldier-over-fb-post/>
to their claim.

On 1 March, the court not only rebuked the request to apply Israeli law,
but entirely dismissed
<https://drive.google.com/file/d/10SVkYQWFE5eSKH-4gzAc0U0_HVTKZO7F/edit>
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
<https://electronicintifada.net/tags/razan-al-najjar>, the young medic who
was shot and killed
<https://electronicintifada.net/blogs/ali-abunimah/gaza-medic-killed-israel-she-rescued-injured>
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
<https://www.timesofisrael.com/idf-vet-receives-death-threats-after-shes-falsely-accused-of-killing-gaza-medic/>
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
<https://electronicintifada.net/tags/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.

I’m proud to announce that I have joined forces with @ShuratHaDin
<https://twitter.com/ShuratHaDin?ref_src=twsrc%5Etfw> to file suit against
a BDS supporter who viciously defamed a former @IDF
<https://twitter.com/IDF?ref_src=twsrc%5Etfw> soldier. If we succeed, the
precedent could have far reaching implications in cases where American
statute of limitations have expired. pic.twitter.com/eExHLC3biH
<https://t.co/eExHLC3biH>
— Michael Weiser (@MikeWeiserEsq) September 22, 2020
<https://twitter.com/MikeWeiserEsq/status/1308447891220885505?ref_src=twsrc%5Etfw>

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
<https://electronicintifada.net/blogs/ali-abunimah/us-trade-union-undeterred-legal-assault-over-israel-boycott>
over its support of the boycott, divestment and sanctions (BDS) campaign
for Palestinian rights, and in 2018 filed a lawsuit
<https://electronicintifada.net/blogs/ali-abunimah/israeli-judgment-lorde-boycott-lawsuit-cant-be-enforced>
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
<https://www.jpost.com/israel-news/former-idf-soldier-sues-bds-activist-who-slandered-her-online-for-6m-643330>
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 <https://my.israelgives.org/en/campaign/GT2020>
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.

Nadal’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.
Fighting back

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.”
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