An Attack on Free Speech—An Analysis (7 April 2020) by Lawrence Davidson
Part I—Background: Weaponizing Anti-Semitism
Anti-Semitism has been weaponized. That is, the Zionists, within and without Israel, are using the charge of anti-Semitism as a weapon to silence those who are critical of the Israeli state. In wielding this weapon, Zionist organizations and the media outlets they control or influence have released a flood of slander and libel. The charge of anti-Semitism is leveled at anyone who opposes Israel’s inherently racist policies and is supportive of Palestinian human rights. And, where the Zionists have sufficient political influence, as is the case in so much of the United States, they are making every effort to encourage laws that make criticism of Israel illegal because, they claim, it is ipso facto anti-Semitic. In this way, the weaponization of anti-Semitism maliciously defames individuals (see addendum below), corrupts legal systems and also threatens any reasonable notion of free speech.
Part II—Libel, Slander and Defamation: The U.S. Case
In cases where individuals and organizations are labeled anti-Semitic as part of a concerted campaign of defamation, one would hope that the libel laws would offer some protection and/or relief. And, as we will see, in some cases such as the United Kingdom and Australia, this has proven possible. However, in the United States this has not happened. To understand why requires a short history lesson on the evolution of free speech, as against the need to protect individuals, particularly “public persons” such as those running for office, from defamation.
American attitudes toward free speech, which form the foundation for much of the country’s legal thinking when it comes to libel, slander and defamation, can be traced back to the writing of John Stuart Mill (1806-1873). Mill was an influential English Utilitarian philosopher and liberal thinker who supported the growth of democracy in the 19th century. He also considered what aspects of democracy would need the strongest defense. For instance, he supported a very broad interpretation of freedom of expression. He laid out his position in an 1859 book entitled On Liberty. Here he argued that allowing a broad interpretation of free speech was the best way of establishing what is true and what is not. “Even if an opinion is false, the truth can be better understood by [publicly] refuting the error.” Mill had faith in the citizenry (or at least the educated middle class of his day) to recognize, through the process of debate, what is true when it came to public pronouncements. “If any argument is really wrong or harmful, the public will judge it as wrong or harmful.” Thus, for Mill “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, [in this case by suppressing his or her public speech] is to prevent harm to others.” However, considering that defamation was subject to rebuttal, the citizenry would ultimately reject such falsehoods without state intervention.
Even though Mill’s faith in an educated public’s ability to know truth from falsehood has proven, at least as far as this author is concerned, quite naive, Mill’s notion of erring on the side of government inaction when it comes to slanderous or libelous speech has had much influence in the United States.
In 1919 sitting as an Associate Justice of the U.S. Supreme Court, Oliver Wendell Holmes wrote a series of decisions that laid out the future standard for judging prosecutable speech: “The question in every case is whether the words used are used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The example Holmes used for such an extreme case was that one’s First Amendment right to free speech would not permit someone “yelling ‘fire’ in a crowded theater.” The libel laws in the U.S. have followed this same path toward setting a high bar for any demonstration that free speech has been abused. Thus, in terms of defamation one now has to prove that the presentation in question is meant to defame (and is not just an opinion) and is put forth with “actual malice” [NYT v Sullivan 376 US 254 (1964)]. This is particularly the case for “public figures” bringing suit for defamation. Public figures in the United States seem to be in a special category of people who are expected to attract a certain amount of, apparently legally acceptable, slanderous and libelous abuse.
The fact is that, in the U.S., libel is so difficult to demonstrate in both federal and most state courts that such suits are only rarely attempted. It is clear that in this case protecting an idealized principle of free speech has taken precedent over protecting the reputations and pubic standing of individuals.
As it has turned out, this situation has given American Zionists a wide field to use the weaponized charge of anti-Semitism with near impunity. A good example of this has been the smear campaign waged against the Democratic Party’s presidential hopeful Bernie Sanders, who is himself Jewish. Called an anti-Semite over and again, Sanders has relied on the American progressive community to defend him. There is no indication that either Sanders or his legal advisors have considered suing his defamers for libel.
Part III—Libel, Slander and Defamation: The UK/Australian Case
The misbalance between freedom of speech on the one hand and recourse to legal protection against slander and libel on the other is greatest in the United States, and in this case, public figures appear most at risk. In England and some of the Commonwealth countries such as Australia, a somewhat greater balance exists, opening up the possibility of legally defending oneself against defamation.
Anecdotally, a key historical root in the evolution of this more balanced standard for Britain’s “defamation law” is the 17th century decision to outlaw dueling—transforming an often deadly engagement into a supervised courtroom debate. As of today, “English law allows actions for libel … for any published [untrue] statements which are alleged to defame a named or identifiable individual(s) [including businesses] in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them.” There are exceptions to and defenses against this standard, but it certainly opens up a more reasonable opportunity for defending oneself against defamation than exists in the United States.
The same can be said for a Commonwealth country such as Australia. Here, the primary purpose of the law against defamation is to protect citizens from false statements about them that “may cause harm to their personal or professional reputation.”
Let’s take a look at a few recent examples of successful challenges to libelous defamation issuing from Zionist sources.
Members of the United Kingdom’s Parliament and those running for Parliament who are critical of Israel or otherwise supportive of Palestinian rights have suffered repeated “exaggerated and fabricated allegations of anti-Semitism.” Finally, in 2019, one such victim, Mrs. Audrey White, former Member of Parliament (MP) for Liverpool Riverside, decided to sue the British paper the Jewish Chronicle for libel. She was able to prove that this Zionist paper had, over a series of four articles, published fake allegations that she was an anti-Semite. These pieces turned out to be part of a campaign of false charges waged against many leftwing politicians. Ultimately, in early 2020, the paper was forced to admit, in print, that it had lied about Mrs. White, and pay damages and court costs. It was also demonstrated that the paper had “engaged in unacceptable obstruction” of the investigation that led to the libel ruling.
This is not the first time the Jewish Chronicle has been sued for defamation. In August of 2019 the paper was forced to pay a cash settlement to InterPal, a British charity providing aid for Palestinians. The Chronicle had implied that interPal was a “terrorist” organization. The paper now faces a “financial crisis” and is reportedly operating with a $2 million deficit. It is staying afloat due to financial contributions from “community-minded individuals.”
A similar series of events have taken place in Australia. Again, political figures are targets if they are critical of Israel or otherwise supportive of Palestinian rights. Take the case of former Labor Party MP Melissa Parke, who had the courage to assert that, “To say that Israel has become an apartheid state is not antisemitic; it is a simple statement of fact and international law.” She went on to suggest that Palestinian resistance, including retaliatory missile launches from Gaza, were a “consequence of decades of brutal occupation.” Finally, she drew attention to, and criticized, Zionist influence on Australian politics. For this she was described as an anti-Semite in a front-page story in the tabloid Herald Sun and similar piece in the paper West Australian. She was also slandered by Colin Rubenstein, executive director of the Australia/Israel & Jewish Affairs Council. He publicly described Parke as a “fanatic” and someone “trafficking in conspiracy theories.” She sued them all for defamation. To date both the Herald Sun and the West Australian have been forced to published retractions and offer apologies.
Part IV—Conclusion
The weaponization of anti-Semitism by the State of Israel and its Zionist allies worldwide should serve as a clear warning to American legislatures and courts that it would be both fair and wise to bring the country’s libel laws into closer conformity with those of the UK and Australia. Indeed, it can be argued that to simply ignore the defamation that is now being rolled out by the Zionists actually puts free speech in danger. Here is how this is happening.
The profuse and persistent use of slander and libel is an attempt at censorship. If you will, it is an attempt to silence a certain category of speech under the cover of “free speech.” The United States has a worse-case scenario of this fraudulent approach because American Zionists seek to use slander and defamation as a basis for novel speech-restricting law. Here they weave a particularly tangled web—declaring that it should be illegal to stand in opposition of one form of racism (Israel’s racist policies toward the Palestinians) because to do so supposedly reflects another form of racism (they can assert this only by equating opposition to Israeli policies with anti-Semitism). It is enough to make your head spin!
John Stuart Mill’s 19th century assertion that “If any argument is really wrong or harmful, the public will judge it as wrong or harmful” has proved unreliable. Most people are buried in their local affairs and, in the present case, have no objective information or experience to judge the behavior of a foreign country—in this case, Israel. All they can go on is media and government messages which, in the U.S., are influenced by pro-Israel lobbies. This means that, with the possible exception of college campuses, there is no public debate as Mill would understand it. So how is the average member of the public to “judge” Zionist slander and libel to be “wrong and harmful”?
The situation really demands legal recourse to seek retraction and compensation for purposeful falsehoods, not only for the sake of people’s reputations and public standing, but also for the sake of maintaining a reasonable doctrine of free speech. Weaponized words and concepts are, most of the time, synonymous with falsehood and propaganda. In that environment, free speech is diminished and corrupted.
Addendum:
BY MONDOWEISS EDITORS MAY 11, 2020
Editor’s Note: The following statement was published today by an ad hoc group of scholars and cultural figures standing against the silencing of advocates for Palestinian rights in Germany. Mondoweiss occasionally publishes press releases and statements from organizations in an effort to draw attention to overlooked issues.
Some 377 scholars and artists from more than 30 countries have signed a pledge opposing litmus tests and political interference by institutions, municipalities, and public officials in Germany aimed at silencing advocates for Palestinian rights under international law.
The signatories commit not to serve on juries or prize committees or in academic hiring consultations in Germany whenever there are “convincing indicators that their decisions may be subject to ideological or political interference or litmus tests.”
The signatories include many distinguished figures, including philosophers Judith Butler and Étienne Balibar, award-winning screenwriter and producer James Schamus, Nobel laureate in Chemistry George P. Smith, linguist and social critic Noam Chomsky, literary and postcolonial theorist Gayatri Chakravorty Spivak, author Ahdaf Soueif, former United Nations Assistant Secretary-General Hans von Sponeck, Holocaust history professor Amos Goldberg, and artist and writer Molly Crabapple. Renowned architect Michael Sorkin also signed the pledge before he passed away in late March from COVID-19.
The pledge comes in response to multiple instances in which artists and scholars suspected of supporting the nonviolent Boycott, Divestment and Sanctions (BDS) movement for Palestinian rights were subjected to repressive political interference and smear campaigns.
In March, public officials put pressure on the Ruhrtriennale Festival to disinvite philosopher Achille Mbembe, who was to deliver the festival’s opening address. The festival has since been canceled due to the coronavirus pandemic. Last year, the City of Dortmund reversed the decision to award author Kamila Shamsie the Nelly Sachs Prize for Literature.
Shamsie and Mbembe both signed the pledge.
The pledge signatories affirm that, “To reverse a prize jury’s decision or to withdraw an invitation to speak on ideological grounds is an intolerable interference that we cannot condone, even by our participation in juries subject to such interference.” They state that making decisions contingent on a commitment to disavow BDS violates academic freedom and freedom of expression, making “a mockery of the very system for and purpose of awarding prizes to individuals judged to be leaders in their fields.”
Importantly, the pledge counts more than 40 signatures from Germany, including leaders of notable cultural institutions.
The disturbing trend in Germany of silencing critical voices, in particular people of color, has increasingly been met with indignation from around the world. Hundreds of writers and cultural figures denounced the withdrawal of Kamila Shamsie’s award. More than one hundred public figures condemned the decision by Düsseldorf ‘s Open Source Festival to disinvite black American rapper Talib Kweli last year.
In 2018, 75 celebrated figures condemned Ruhrtriennale’s decision to disinvite predominantly Black music group Young Fathers and, as a result, a number of artists and groups canceled their participation in the festival, forcing the festival to re-invite Young Fathers.
Last month, dozens of Jewish and Israeli scholars, many of whom specialize in anti-Semitism and in Jewish, Holocaust and Israel Studies, called on the German government to replace Felix Klein, the federal antisemitism commissioner, over “shameful” smears of Achille Mbembe and his “leading role in the ‘weaponization’ of antisemitism against critics of the Israeli government and activists exercising their freedom of speech and assembly to protest Israel’s violations of basic rights of the Palestinians.”
