Ought there be a Limit on Free Speech in the Subway?

The subway is a public forum of sorts; it is a place where people of all races, religions, and classes intermingle, where commuters read their newspapers, gripe about the weather, and sometimes even wade into vigorous debate about the grand issues of the day. Without a doubt, the subway is a part of the public sphere where speech is protected by the First Amendment – to a reasonable degree.  

        However, subway cars, platforms, stairwells and tunnels were built by cities to move people from point A to point B as quickly and safely as possible. Speech activities are not as protected on the subway to the degree that they are in the public square. Likewise, the New York MTA prohibits canvassing, soliciting, leafleting, blasting loud music, and any other sort of disorderly conduct “which may cause or tend to cause annoyance, alarm, or inconvenience to a reasonable person or create a breach of the peace.” And the unwritten rules of subway etiquette include that one ought to refrain from giving co-riders eye contact – let alone get up in peoples’ faces and egg on a fight.

Enter stage right the ‘American Freedom Defense Initiative' (i.e. professional Islamophobe author Pamela Geller) and (her) now-infamous “Civilized Man” ad hanging in certain New York, San Francisco, and Washington public transit stations specifically selected for their proximity to Jewish and Muslim communities.

 

              You don’t have to try very hard to connect the dots in Geller’s crude analysis. Geller all but explicitly proclaims: “Muslims are a bunch of savages”, or “Palestinians are a bunch of uncivilized sub-humans”; “Israeli Civilization is at war with them, so you should fight them too.” Why does she want to do this? Pamela Geller runs a blog Atlas Shrugs where she documents her thesis that all Muslims are violent “savages” and that Judeo-Christian White America ought to take the offensive against these undermenschen in a Clash of Civilizations. There is not enough sectarian warfare in the United States for Geller to make a convincing argument, so Geller stitched together a message unarguably intended to offend, to provoke vandalism, and to create for herself more opportunities to find photos of Muslims standing around, looking angry and menacing in your subway! Like the “Innocence of Muslims” YouTube video, this is a perfect example of trolling – the “Civilized Man” poster was made for the express purpose of pushing people to commit acts of violence.  

Not without ample justification, the New York MTA originally rejected Geller’s “Civilized Man” ads, citing the agency’s advertising policy which prohibits any advertisement “that demean(s) an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation.” However, Geller’s AFDI sued the MTA, pleading for a preliminary injunction to strike down the “no demeaning” standard.

               Quite consequently, the MTA had already been in the business of selling ad space to groups - including Geller's - advocating certain positions on the Israeli-Palestinian conflict. Witness the progress of the spillover of the Israeli-Palestinian conflict on US metro transit authorities over the past few years:

A pro-Palestinian group put this poster went up in Washington-area trains and buses in 2011. The policy objective of the above is radical by any standard. But of course this is political speech protected by the First Amendment. It’s even gosh darn polite.

Another pro-Palestinian group decided to push the envelope a little further.

This ad generated plenty of controversy in the New York metro region; the MTA received thousands of complaints, my local Assemblyman Robert Castelli made a push to get the MTA to take the posters down from Metro-North stations, reasoning that though “there is no offensive language in the message”, “by its very nature, it is inflammatory an directs a negative message toward Israel and her people.” The MTA didn’t budge. Some Zionist groups went berserk.

                Just like the legitimate debate over Israel and Palestine’s borders has been hijacked by racial extremists on both sides, Pamela Geller sought to throw a Molotov cocktail into the debate to extinguish all civil discussion. Completely bypassing reasonable dialogue on U.S. foreign policy, Geller appealed to the vilest of strategies in political rhetoric:thinly-veiled white supremacy.
 

Surely there is a difference between Geller’s ad and the prior two not just in perspective but also in tone and substance. The first two might be thought-provoking, particularly controversial. But the “Civilized Man” ad went out of its way to be offensive. Unfortunately/fortunately (depending on your perspective), that's not a distinction that the First Amendment permits the government to make.

 In American Freedom Defense Initiative v. MTA, U.S. District Judge Paul Engelmayer ruled for Geller, reasoning that the MTA had created a public forum, the MTA had sold ad space to pro-Palestinian groups, the MTA can’t engage in viewpoint discrimination and allow ads espousing one opinion and rejecting those of another. If the MTA is going to sell ad space, the state may not put its thumb on the scale of the free marketplace of ideas and allow one viewpoint but prohibit another. The majesty of the First Amendment entails that if the city is going to grant the NAACP a permit to parade in Central Park, it has to also grant a permit to the Aryan Nation.

                Moreover, the MTA “no-demeaning” rule was only applicable to language demeaning of members of the enumerated groups, and thus it was not narrowly-tailored to meet any justifiable end. As Engelmayer reasoned, according to the MTA rule an advertiser would be perfectly free to state “Southerners are bigots”; “Upper West Siders are elitist snobs”; “Fat people are slobs”; “Blondes are bimbos” or “Lawyers are sleazebags” – language demeaning of certain classes of people – so long as it did not demean classes of people on the basis of race, religion, gender, sexual orientation, etc. The MTA policy regulated the content of speech in a way that was not inconsistent with the First Amendment. The ads went up last month.

              In American Freedom Defense Institute v. WMATA,Pamela Geller waged a slightly different lawsuit against the Washington-area public transit authority, which refused to put up her “Savage” ads not for demeaning language but for security reasons. WMATA lawyer Philip Straub invoked the then-still-ongoing mob violence and terrorist attacks on U.S. diplomatic personnel aroused by the “Innocence of Muslims” YouTube video. He even cited the Department of Homeland Security, which had notified the transit authorities that such an ad could increase the threat of terrorism in the Washington metro. According to Straub, DHS advised WMATA that the “Savage” ad “could not be displayed in our system until passions have cooled somewhat.”

Straub also argued that they agency could reject the “Civilized Man” ad under the “fighting words” doctrine. It is not difficult to see how Geller’s ad can be interpreted as falling into this category of “fighting words.” As Justice Frank Murphy articulated the exception to the First Amendment in the classic case Chaplinsky v. New Hampshire:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Referring to Palestinians/Arabs/Muslims as “savages” is unarguably insulting, profane and libelous. But Geller did much more than that – but she called for subway passengers to side with Israel in the war against those “savages”. How ought we engage in such ethno-sectarian warfare against the “savages”? The AFDI’s innuendo-filled call to arms is reminiscent of the anti-Tutsi propaganda Radio Mille Collines’ broadcast during the Rwandan genocide; it came in coded phrases; “Cut down the tall trees!” and “Exterminate the cockroaches!” The ad doesn’t give explicit instructions – it doesn't say "Punch a Muslim!" or "Graffiti a mosque!" it lets its readers come to their own conclusions.  

In the end, U.S. District Court Judge Rosemary Collyer granted the American Freedom Defense Institute’s request for a preliminary injunction on the grounds that the WMATA’s fear of mob violence in the DC Metro was too vague and speculative. According to the Brandenburg Test, the government cannot restrict speech unless it carries:
1. the intent to incite violence;
2. the violence must be imminent; and
3. there must be a distinct likelihood that the speech will proximately cause violence.

Geller’s ad fulfills the Intent element, but even though the Department of Homeland Security had feared the possibility of terrorist reprisals, the mere fact that that the transit authority feared that someone could be whipped into violence was insufficient grounds for censorship.  

In the wake of these rulings, the transit authorities of New York, DC, and elsewhere are posed with a quandary; so long as they sell ad space along subway tunnels and the sides of buses, is there any way or the state agencies to regulate content without running afoul of the Constitution? According to Judge Engelmayer and Collyer’s decisions, say the local Neo-Nazi organization wants to put up a recruitment poster saying “Those greedy, hook-nosed shysters took your job and took your house. Take one of their silly hats!” Suppose the Klu Klux Klan wants to put up ads saying: “Those lazy bums are mugging you and stealing your hard-earned tax dollars to buy crack and grape soda. Fight back!” Is the MTA powerless to resist?  Must our trains and buses become receptacles for the absolutely most scurrilous vitriol? Do we subway commuters have to participate in this sociological experiment against our will?

In response to the federal court decision, the New York MTA board adopted by a vote of 8-0 a new policy banning any advertisement that the MTA board “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.” Essentially, the new rule would ban “trolling” in the limited public forums of subway ad space.  

But when is speech “trolling”? It’s hard to lay out scientific parameters, but society has caught wind of the subset which gets its perverse kicks by throwing out incendiary words just short of being “fighting words” per se. Indeed, the sine qua non of trolling is that it doesn’t explicitly exhort the masses to commit murder and mayhem, but it drives right up to that line of sowing hatred and provoking violence with full knowledge that that is enough to achieve the intended result. And just before a troller actually becomes a co-conspirator in the violence which will foreseeably ensue, the yellow-bellied bastards tweak their speech just enough so that it is protected speech and they can hide behind the aegis of the First Amendment. Trolling is rather amorphous, inherently vague and difficult to define – but it is certainly identifiable on a case by case basis. Like how Justice Potter Stewart defined pornography, “I know it when I see it.”

Harvard Law Professor Alan Dershowitz immediately cried foul at the MTA’s new anti-trolling rule.  “A. it’s clearly unconstitutional” he said, and “B. it incentivizes people to engage in violence. What it says to people, is that if they don’t like ads, just engage in violence and then we’ll take the ads down.”

I’m afraid that Dershowitz might be right on this one. According to Brandenburg v. Ohio, the government cannot punish even inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. Even if Geller’s“Civilized Man” ad or Bacile’s “The Innocence of Muslims” were created with the express intent of inciting Muslims to violence, even if a violent reprisal is reasonably foreseeable, it’s very difficult burden for the state to prove that any such violence is both likely and imminent. Because it is indeed carefully threaded so as to comply with constitutional law, trolling might be just as much protected speech as is picketing a military funeral or burning an American flag.

So the sad fact of the matter is that Pamela Geller is like a bad case of anal warts – polite society might not have any effective remedy to make her go away, and we’re going to have to learn to live with her uncomfortable, obnoxious presence. Part of the deal of living in a free society is that we have to tolerate ideologues of intolerance, whether they be the Klu Klux Klan, the Aryan Nation, the Thirteenth Tribe, or the American Freedom Defense Initiative.

The silver lining is that even though Pamela Geller and her cohorts of hatemongers may have won their First Amendment case, it’s a very Pyrrhic victory. In winning the right to put up the “Civilized Man” poster, now the ‘American Freedom Defense Initiative’ has only won the opportunity to compete in the marketplace of ideas. And their ideas are losing. Big time. Mainstream liberal and even conservative Jewish voices including Rabbi Richard Jacobs – the leader of the Reform movement, the Jewish Federation, the Anti-Defamation League, et al., are unanimously horrified by how low Geller has stooped in her so-called “pro-Israel” advocacy. Pamela Geller may have won the battle to put up her racist placards, but in doing so, she’s really helping the Jewish Right lose the war for the hearts and minds of America’s Jewish youth. When self-proclaimed defenders of Israel denigrate Palestinians as “savages”, and make crude appeals to “civilization” i.e. white solidarity, they have lost an entire generation of American Jews. Thanks to this “Civilized Man” ad, showing just how race-baiting and fear-mongering “pro-Israel” advocacy can be, many Jews are probably going to be much more wary of the Jewish Right and its Willie Horton-like scare tactics.
 

When the dust has settled, it looks like Geller’s foray into the marketplace of ideas may just completely backfire. The ruckus over the despicable “Savage” ads are encouraging fair-minded Jews to speak up, to call out Islamophobia and racism amongst our own ranks, and we're much less scared of advocating for for a sane, peaceful diplomatic policy in the Levant for fear of being labeled "anti-Israel." When I read the literature of America’s new voices, I hear calls for a new identity of Jewish Americans based on tolerance, reconciliation and peaceful relations with other faiths and cultures. Most important of all, Pamela Geller may have inadvertently highlighted the imperative for civil negotiations over the Mideast conflict, leading to an independent Israel and Palestine, living together, side by side, in security and in peace. 

LOLSkool Catz II

On Presidents, Palestinians, and the Jewish Vote

This is an election year, so it should come as no surprise that presidential aspirants are busy pandering to every strategic voting bloc, including the large populations of Jewish voters in New York, New Jersey, California, Pennsylvania, and Florida. Appealing to Jewish voters on the subject of Israel is nothing new – shtetl politicians have campaigned on this salient issue as long as there has been a Zionist movement. However, what is new in this election cycle is the unprecedented degree of gutter politics and general nastiness that the discourse on Israel has acquired.

At the Republican Jewish Coalition forum, Congresswoman Michele Bachmann thundered that Israel should cede “not one acre, not one square foot, not one inch” to the Palestinians in order to make peace.

Governor Rick Perry declared that the Israeli settlements in the West Bank are actually legal, “and I support them.”

Newt Gingrich claimed that the Palestinians are an “invented people” – with the implication that if the Palestinians are not a true nation then they cannot have a nation-state.

Rick Santorum went even further, claiming, “All the people that live in the West Bank are Israelis. They are not Palestinians. There is no Palestinian. This is Israeli land.”

Putting these statements together, one sees a Republican foreign policy platform which does more than simply repudiate the “Land for Peace” premise of U.S.-led peace negotiations between Israel and her Arab neighbors – it repudiates the very notion of a peace process altogether. The GOP presidential aspirants wish to reverse the longstanding U.S. policy of opposition to the illegal Israeli settlements in West Bank territory and now actively endorse continued colonial expansion. The foreign policy which these candidates espouse is a radical abandonment of U.S. policy for the past 45 years – including the foreign policies of the Nixon, Reagan, and both Bush administrations – and a substitution of the religiously and racially exclusivist ideologies of Revisionist Zionism in its place.

Why would candidates for leader of the free world stoop to such lows? Karl Rove and the greater Republican National Committee believe that by making Israel into a wedge issue, GOP candidates can peel off some of the 78% of Jewish voters who voted for Barack Obama in 2008. GOP strategists believe that they might have found a winning strategy in pandering to the basest fears of the collective Jewish psyche: our instinctive paranoia of Arabs, Muslims, and anyone otherwise resembling Yasser Arafat. Such Palestinian-bashing is a reprehensible tactic which all advocates of tolerance and basic decency must condemn. Tragically, it might win Mitt Romney a few votes, it might even flip a few Hasidic communities to the GOP tent for good.

One should expect such below-the-belt jabs from the folks who brought you the “White Hands” ad and Willie Horton. But what is concerning is that the Democratic National Committee might take the bait and try to out-pander the panderers. One might hope that Democratic candidates will not join this race to the bottom in Palestinian-bashing because they are too good for that kind of gutter politics.

One might even hope that the enlightened Democrats might get the memo that the State of Israel is not the only matter of interest to each and every one America’s 6,544,000 Jews. It is insulting to think that a politician can buy our votes with a pledge for more reflexive embrace of everything the Netanyahu administration says and does in the same manner as, say, one stumps for votes among Iowan farmers by promising more subsidies for corn.

Zionism and diplomatic support for the State of Israel have always been an undercurrent in Jewish-American politics, but it was never the end-all-be-all until relatively recently. Not too long ago, candidates campaigned in Jewish neighborhoods in Park Slope and Brookline by stumping on the issues most relevant to a then-largely working class demographic; unionism, wages, and pensions, immigration reform, civil rights legislation. However, with the passing of generations, the bulk of us have moved from the ghettoes to the wealthy suburbs, and there is no longer a distinct economic pitch to appeal to both the seamstress in South Williamsburg who makes $22,000 a year and the bond trader in Greenwich who makes $2.2 million. Thus Jewish-American politics has been reduced to Israel: the one issue which (ostensibly) unites us all.

Nevertheless, in our day-to-day conversations, American Jews are more concerned about the job market, fairness in the tax code, the cost of health insurance, the quality of our environment. We are disproportionately in favor of taking measures to curb global warming, reforming our criminal justice system, and creating a pathway to citizenship for illegal immigrants. Why don’t candidates for public office come to our congregations and campaign on these issues which actually affect our lives, the lives of our friends and family members a whole lot more than a foreign country two continents and an ocean away? Of course, we will always have a special sense of sympathy for the Jewish State. But if we are going to speak about foreign policy, Israel is but one of 195 foreign countries (196 if you count Palestine) with which we are concerned.

If presidential candidates are going to speak to a Jewish audience on Israel and Israel alone, then they might as well appeal to our greatest hopes instead of our darkest fears. According to a 2011 J Street poll, the vast majority of American Jews want a U.S.-brokered solution to the Israeli-Palestinian conflict (83%), and for the Obama administration to offer a peace plan that proposes set borders and security arrangements (70%). A healthy majority of American Jews even back a peace plan based on the 1967 borders with mutually agreed-upon land swaps (57%). If politicians are going to campaign for Jewish voters on Israel, they ought to pledge to sit down with Netanyahu and Abbas and hammer out a peace deal for once and for all.

Sure, 17 percent of American Jews are opposed to the Middle East peace process - just as 18 percent of American Jews are opposed to equal rights for gays and lesbians, 22 percent of American Jews thought that Sarah Palin should have been the Vice President, and there are even some of us who think there should be segregation on public transportation. But Democratic politicians have no obligation to kowtow to these forces of reaction, the very most closed-minded minority of my people - because they're Republicans. The DNC ought to accept this reality, move on, and campaign to the vast majority of Jewish voters who support a U.S.-brokered peace process.

Making peace in the Middle East is not a campaign liability which candidates ought to run away from – it is a badge of honor which Democratic Presidents ought to embrace. The legacy of Democratic administrations vis-à-vis Israel is not limited to Harry Truman’s recognition of the Jewish State in 1948. The greatest foreign policy achievements of Democratic administrations include Lyndon Johnson’s support for Resolution 242 in the United Nations, Jimmy Carter’s brokering of the Camp David Accords between Israel and Egypt, Bill Clinton’s facilitation of negotiations over the Israel-Jordan peace treaty and the Oslo Accords between Israel and the PLO. The majority of Jewish voters want to see Barack Obama live up to this long legacy of Democratic achievement and oversee peace negotiations leading to a two-state solution in which the nations of Israel and Palestine are living side by side, in peace and security. That’s the kind of change we can believe in.

Who Speaks for America's Jews?

(Click HERE for musical accompaniment)

Deprived for much-too-long of borscht-flavored intellectual ferment, I sojourned to Temple Beth El in Stamford, Connecticut to hear a debate between Alan Dershowitz and Jeremy Ben-Ami provocatively titled “Who Speaks for America’s Jews?” (both men would like to tell you that the answer to the question is “me”). I came with high hopes for this debate between two heavyweights in the Yiddish League of verbal sparring; I assumed that given the speakers’ expertise I might have heard a vigorous discussion of American Jewish activism in relation to the U.S.-brokered peace talks between Netanyahu and Abu Mazen.

For those who are unfamiliar with the speakers, Jeremy Ben-Ami is the Executive Director of J Street – self-described as “the political home for pro-Israel, pro-peace Americans”. He is an American Jew descended from some of the first settlers in Tel Aviv, whose father founded a number of American Zionist organizations and who has himself lived a substantial part of his life in Israel. Now as the head of J Street, Jeremy Ben-Ami is asserting himself as the face of American Jewry dedicated to a two-state solution to the Israeli-Palestinian conflict in order to guarantee “Israel’s survival as the national home of the Jewish people and as a vibrant democracy.”

Many more of you probably know Alan Dershowitz – the Harvard Law professor who has made a name for himself as an advocate for the State of Israel. Dershowitz’s background as a constitutional liberal makes him an estimable defender, because he vows support for a two-state solution and opposes the Israeli settlement of the West Bank. His argument is that he opposes the singling out of Israel for human rights violations – which he interprets as the product of anti-Semitic prejudice. And likewise, the author of such titles as The Case for Israel, The Case for Peace and The Case Against Israel’s Enemies has spent the better part of the past decade serving as the go-to destroyer of Jimmy Carter, Noam Chomsky, Norman Finkelstein, John Mearsheimer and Stephen Walt, the Board of Directors of Hampshire College and anyone else who might criticize Israeli policies in the Occupied Territories – including the new group J Street.

I had come to this debate thinking that Jeremy Ben-Ami and Alan Dershowitz would make a thorough discussion of American Jewish activism in relation to U.S.-Israeli relations, Israeli policy towards the Palestinian issue, the Iranian nuclear program, Lebanon and Syria and the rest of the Arab world – ostensibly, the reasons why one should be interested in who speaks for American Jews. Unfortunately, the vanities of both Dershowitz and Ben-Ami allowed for no such thing – and what could have been a substantive debate on policy descended into a petty catfight between two prima donnas.

Hardly more than a few softball questions into the debate, Dershowitz veered the discourse to file a personal grievance against J Street; in one advertisement, they displayed Dershowitz’s face alongside those of Sarah Palin, Rush Limbaugh and other prominent opponents of present negotiaions for two-state solution in a group that J Street calls “The Chorus of ‘No’”.

“How dare you lump me together with two people with whom I have nothing in common? You owe me an apology!”

Ben-Ami tried his best to mitigate the apoplectic Dershowitz but could not; “The reason why you appear in “The Chorus of No” is because this is the way you choose to advocate for Israel. As soon as there is something that you interpret in a way you don’t like, the person is immediately ‘anti-Israel’…”

“I think we have to talk about George Soros... George Soros has publicly said he is not a Zionist, he doesn’t want to have anything to do with Zionism, he thinks that Israel causes anti-Semitism, he has compared Israel to Nazism, you have denied that he funded you…”

“As soon as there is a question on the table, you throw out the name ‘George Soros!...”

“…You are a cover for many people who are virulently anti-Israel!”

In such a manner, Dershowitz and Ben-Ami plotzed and kvetched about bupkes for at least the first 40 minutes of the “debate”. It was not until 50 minutes into the “debate” that the discourse turned to actually substantive matters when the moderator asked Jeremy Ben-Ami, “What exactly is it that troubles you about Israel’s human rights record?”

“Have you been to the old market in Hebron?” Ben-Ami asked, and even invited the Stamford rabbi to come with him some time. "It is impossible to be a Jew and not feel shame at the way in which Palestinian people are treated in the center of Hebron… Down the middle of the street runs a barrier; on one side Palestinians are allowed to walk, on the other side Jews are allowed to walk…”

This is precisely the moment when Jeremy Ben-Ami was lobbed a softball down the center and he could have hit it out of the park. He could have leaped upon this opportunity and declared the unequivocal injustice of one nation ruling another under the yoke of military occupation, the fundamental wrongness of any nation annexing the territory of another won in battle as the spoils of war, he could have illustrated the barbarism of Israeli settlers evicting Palestinians from their rightful land by gunpoint and killing those who refuse. He could have eloquently depicted the humiliation of Palestinians whose day-to-day movement is frustrated by cumbersome checkpoints, he could have explained how the economy of Gaza has all but collapsed since Israel laid siege to the city with a stifling embargo and cut off electricity and fuel and deprived a city of a million people of basic functioning water and sanitation treatment facilities. He could have cited reports from groups like Amnesty International and Rabbis for Human Rights documenting the bulldozing of entire apartment complexes, the use of white phosphorus in populated neighborhoods, the IDF’s use of human shields in the 2008-2009 Gaza invasion, etc… But no, Ben-Ami bunted; the most troubling thing he could think of was the layout of the market in Hebron – implying the A-word that alienates much of an audience like the one at Temple Beth El.

Even the purportedly-neutral moderator pounced, “I’ve seen human rights violations that are so extreme in what they do to human beings and how human beings end up dead, maimed and dead… whether it’s in Sudan or Sri Lanka… I don’t understand why of all the things you want to give me as an example of why it’s troubling… I don’t doubt that it would be troubling, but troubling is not what I’m looking for from you!”

Dershowitz seized the opportunity to make the relativist argument: “No country in modern history has had a better record with human rights under comparable threats than the nation of Israel!” he proclaimed, “not the United States – which detained 110,000 Japanese-American civilians during the Second World War, which has killed civilians in drone attacks, which has had much greater human rights violations in administrative detentions in Guantánamo; not Great Britain – with its fights in Northern Ireland, its fights in Kenya; not France – with its problems in Algeria…”

Then Dershowitz laid his trademark “gotcha!” trap: “Jeremy Ben-Ami, I want you to name a country with a better human rights record – that has been more criticized for its human rights record than Israel.”

“I’m struggling to think of another country in the world right now that is occupying another people…”

“China!”

“… that is preventing them from exporting any goods…”

“China – Tibet! Kurdistan! And I can go on! Fourteen or fifteen countries – most of which nobody has ever heard of because the UN doesn’t spend any time on them!”

The central problem with Dershowitz’s strategy of defaming critics of Israeli policy – illustrated here – is that the crux of his case tends to employ a mixture of the straw man argument and ad hominem attack. When someone like Jeremy Ben-Ami so much as criticizes a specific Israeli policy, Dershowitz makes pains to avoid addressing that grievance and quickly changes the topic of conversation to the criticizer’s own shortcomings;

"Iran/Syria/China/Burma/Sudan/Zimbabwe/Kyrgyzstan is violating human rights. Why aren't you criticizing their human rights record?"

His opponent freezes, can only stammer some weak-kneed excuse: “Well… my organization doesn’t have an official position on the situation in Zimbabwe, so I really don’t know …”

“So, even though Iran/Syria/China/Burma/Sudan/Zimbabwe/Kyrgyzstan is committing gross human rights abuses, you remain silent! You only criticize human rights abuses when they are made by Israel!” Dershowitz thunders, “Therefore, your judgment is tainted with anti-Israel bias! Therefore you are an anti-Semite! You are a Jew and yet you are an anti-Semite and therefore you are a self-hating Jew! Therefore, anything you might say about Israel’s human rights record is an anti-Israel, anti-Semitic, blood lie against yourself!” Dershowitz’s Jewish audience pockets the line of reasoning, proceeds to view his opponent as Mahmoud Ahmadinejad in a yamulke for the rest of the debate and thereby dismisses anything of merit that he might have to say.

Indeed, Alan Dershowitz has a valid point to make when he rejects criticisms of Israel’s human rights record made by regimes that are themselves gross violators of human rights with a long history of anti-Israel and anti-Semitic bias; e.g. the governments of Saudi Arabia, Iran or the UN Human Rights Committee when it was chaired by the delegation from Libya. He is right when he demands that human rights organizations within the United Nations umbrella, Amnesty International, Human Rights Watch, etc. be evenhanded and not single out Israel for vilification while remaining silent about the Egyptian and Jordanian governments’ and Hamas’ crimes against the Palestinians, Syria and Hezbollah’s disregard for the human rights of Lebanese civilians. He is right to criticize Hamas and Hezbollah's terrorist attacks against Israeli civilians as violations of Israelis' human rights - and thereby he is right to criticize the governments of Iran, Syria, Sudan and Venezuela for sponsoring these terrorist groups. But that doesn’t mean that Dershowitz is right in shouting down anyone who dares to criticize Israel’s human rights record.

The central plank of Dershowitz’s destruction of Ben-Ami – “You can’t name one country in a situation comparable with Israel’s with a better human rights policy” – is a terrible defense of Israel’s occupation of the West Bank and siege of the Gaza Strip. What it amounts to is more or less “So Israel might be flagrantly violating international law in its occupation and colonization of another nation’s sovereign territory… but you can't criticize Israel so long as they are not the superlative worst offender of human rights!" or "Hey, at least it’s not genocide!” Is that really the kind of logic that American Jews want to employ when defending Israel? Shouldn’t people who write books with titles like The Case for Moral Clarity be arguing that the State of Israel have a human rights record not just better than that of blood-stained Asiatic autocracies and African juntas but so immaculate that it is beyond the reproach of fair criticism?

That argument for moral clarity, actually, was what Jeremy Ben-Ami was trying to make before Alan Dershowitz shouted him down.

“The occupation of the West Bank and the way in which the Palestinian people have been treated for 42 years is very, very troubling. I’m not putting it on a scale with the genocide that took place in Rwanda, I’m not putting it on a scale with what happened in Sri Lanka… What I am worried about in the Jewish community is that we’re too self-satisfied that we’re not as bad as Sri Lanka, we’re not as bad as Rwanda – that’s not good enough. We should be treating people according to the values that we were brought up under, the values that we expect other people to treat us with, and if we were treated in Hebron the way that Palestinian people are treated by Israelis, we would be deeply troubled as well.”

“There is a standard of morality, a standard of ethics, a standard of behavior that I was raised to believe is fundamental to what it means to be Jewish. I don’t care where my standard falls vis-à-vis the Kurds, I don’t care where my standard falls vis-à-vis the Chinese. What I believe is that the country that is the nation-state of my people should be behaving and upholding the standards of my people.”

Nevertheless, one would think that Alan Dershowitz handily won this “debate” judging by the reactions of the largely elderly Jewish audience. By keeping his vocabulary within the secular language of human rights and constitutionalism and democracy he was able to swat away Ben-Ami’s criticisms with nary a word that might discomfit a liberal, college-educated audience. He was able to excuse Israeli mistakes with such bombast that it seemed that in making these mistakes Israel was in fact righteous and that it was her accusers who were at fault for the very act of making the accusations. And when he made his applause lines the audience dutifully applauded – even if you disagree with everything the man says, you have to admit that Dershowitz is a masterful rhetorician. Having seen Dershowitz do his song-and-dance routine in person, it is clear why Benjamin Netanyahu invited him to serve as Israel’s Ambassador to the United Nations.

But on the substance of the “debate”, I feel that Dershowitz really didn’t make much in terms of an argument – he didn’t really defend Israel’s policies in regards to the occupation, the settlements and its human rights record as much as he criticized Mr. Ben-Ami’ criticisms of them. I left Temple Beth El disappointed that the bulk of Dershowitz’s shtick was to undermine the credibility of his opponent by associating him with some outrageous thing that George Soros might have said out of context this one time, to showcase the fact that Ben-Ami never publicly denounced this or that left-wing anti-Zionist and to thereby put those outrageous words in Ben-Ami’s own mouth. Instead of responding to Ben-Ami’s criticisms of Israel, he just insinuated that these criticisms somehow originated in ideologies of anti-Semitic prejudice. So if Dershowitz won, it was only because he bullied and crowded Jeremy Ben-Ami out of the discourse so that he never really had a chance to speak. Though I have enjoyed some of Dershowitz’s books and found them to be fairly compelling, I found Dershowitz’s performance in person to be so mean-hearted and pandering to the least common denominator that I left the synagogue feeling more skeptical of his arguments than before I came in.

And thus I have to agree with Ben-Ami when he rejoined Dershowitz’ ¬love-it-or-leave-it posturing; “You and that advocacy are part of the reason so many young, liberal Jews are walking away from Israel”. When people like Alan Dershowitz – or Eric Cantor or Abraham Foxman or Bill Kristol – throw around epithets like “anti-Israel” or “anti-Semitic” so often in so many contexts when it is not even remotely appropriate or they make a point of repeatedly professing their love for Israel to the point that it becomes hackneyed and meaningless, it really turns off a lot of people who are truly interested in hearing a bona fide discourse on things that matter. When a public figure questions the patriotism of his rivals and filibusters amidst the last refuge of scoundrels, it leads certain members of the audience to conclude that the speaker lacks the facts and the law to slam and so he has resorted to slamming the table. Likewise, if the best that the most learned defender of Israel can do is to make a relativist argument, kill a straw man and criticize the criticizers, it leads a number of us to wonder if anyone can straightforwardly defend Israel’s human rights record in the Occupied Territories.

This is part of the reason why the new J Street organization is being embraced with so much enthusiasm by many American Jews – especially youth. A great many of us strongly identify with our Jewish heritage and with the nation of Israel; however, we do not hold any blind tribal allegiance to the Jewish settlers of the West Bank any more than we hold blind tribal allegiance to Bernie Madoff, Scooter Libby or Paul Wolfowitz. We believe that the Jewish people have the right to determine our own destiny in the State of Israel, but we do not believe that Jews have the right to steal the property of non-Jews living in the West Bank. We reject the platform of the Likud Party which "flatly rejects the establishment of a Palestinian Arab state west of the Jordan River." We believe in Judaism and Zionism; however, we do not believe in Likudism.

A lot of American Jews who believe in the Jewish democracy have a difficult time speaking as apologists for the State of Israel and its treatment of the Palestinians. Especially when we factor in the Bronze Age barbarism of the West Bank settlers, our views on every single one of 7.5 million Israelis cannot be described as unconditional respect. This 24-year-old American Jew, for one, has trouble perceiving Israel as at all times the victims as much as my grandfather who considered emigrating to Israel to fight in the War of Independence or my parents who lived through the Six-Day War and the Yom Kippur War. American Jews of my generation know our history of Israeli victimhood, we identify with contemporary Israeli victimhood of suicide bombings and rocket attacks - but we have also been cognizant of Israel occupying 3 million Palestinians in the West Bank and laying siege to another 1.5 million on the Gaza Strip so long as we have been able to read newspapers. To many of us, there is solid evidence to portray the Israelis who are colonizing Palestinian lands and the state which facilitates this systematic oppression as victimizers. We are not going to waste our time comparing the human rights records of the State of Israel versus Hamas or Hezbollah, we don't care whose human rights record is the worst, but what we are going to do is to ask that the Jewish State - the state of our people - live up to its moral and legal obligations to respect the human rights of people of other nations.

Justifications of Israeli policy resting upon the premise of Arab treachery seem to so many of us outdated; the sneak attack of 1973 was 37 years ago, Egypt and Jordan have long ago signed peace treaties and the Arab League’s Peace Initiative remains the only offer on the table, moreover, Yasser Arafat is dead and buried. In light of these realities in the year 2010, a great deal of American Jews can’t understand why so many of our people still oppose the establishment of a Palestinian state in the West Bank and Gaza. We know very well that certain Arab states and certain Palestinians have committed atrocities in the past, but we have no desire to shackle the destiny of our people to the dictatorship of history or the tribal warfare of yesteryear.

Accordingly, many American Jews are alienated by organizations such as AIPAC and the American Jewish Congress which have monopolized the discourse in recent years because we feel that the Likud-Shas fantasy of a “Greater Israel” which they defend is a very radical, narrow interpretation of Zionism which runs counter to our democratic values. That is not to say that we would necessarily be Laborites, but a great many of us do feel estranged by the American faction which reflexively supports any and every policy that the State of Israel might conduct without any regard for the legitimate rights of other nations. We do not object to the existence of an Israel Lobby - in fact, we consider ourselves a significant part of the Israel Lobby - but we feel that an organization which can stand for the indefinite subjugation of the Palestinian people cannot speak for the totality of American Jews.

That is why the J Street organization is filling a very necessary niche in the constellation of American Jewish political activism. A good number of American Jews – especially youth, including this writer – do identify with the nation of Israel as the spiritual home of the Jewish people, and for this reason we insist that the State of Israel live up to the highest standards of morality, international law and human rights in its conduct with other nations. We insist that the State of Israel live side-by-side and in peace with an independent State of Palestine, because we who consider ourselves the intellectual heirs to Moses, Jefferson and Weizmann count the self-determination of peoples as one of our most fundamental values. We believe that these principles of morality, human rights and international law are not just maxims to be invoked on behalf of Jews but universal truths that are applicable to all peoples at all times. We believe that if we expect to be able to defend our own liberty with these principles then we must abide by them in our own conduct with all other people - especially Muslims. And that is why we have such high expectations for the nation of Israel, because if we are going to call ourselves the Chosen People then we have to live up to our lofty promise.

A Discouraging Moment

When people meet this strange white man with aviator sunglasses and hydrofoil sideburns, it is clear that I am… from out of town, so one of the first questions I am always asked is “Where are you from?”

“America”, I say, “in a village near the city of New York”

“Oh, New York! I know of that place!” they reply, and then scan their memory to remember how exactly they know of it. Then they ask me in a jovial, getting-to-know-you tone, “Was anyone in your family killed on September 11th?”

Thankfully, no. But at this point the conversation always comes to a somber lull. In America and especially in New York, anyone other than Rudy Giuliani has a hard time making small talk out of the deadliest terrorist attack in world history. But with the hyperliteralism of the Bambara tongue, subtlety does not quite exist in Mali. As much as I would prefer for them to ask me about the Yankees, Broadway or the Museum of Modern Art, the only one of New York’s landmarks they could possibly know is the former World Trade Center.

One time I was hiding from the noon-day sun brewing tea with a group of men and I had to suffer this horrendous dialogue once again. I have had this simultaneous conversation starter/ender more times than I can count, but this time it really touched a nerve. Directly beforehand, the person with whom I was speaking had asked me about my religious affiliation.

“Tell me this – who told your family not to go to work on September 11th?”

My blood curled. The cruder instincts in me wanted to strangle this particular individual brewing tea before me, shove his face into the glowing embers, and then pour that teapot of boiling water down his throat so he could never utter such obscenity again. But then my superego chimed in and reminded me that I am in the Peace Corps – we are strongly discouraged from committing in acts of violence, no matter how deserved they may be. Peace, Zac, think of peaceful methods of conflict resolution such as the art of Reason and Negotiation. It took me a while though, because at that moment the impulsive option seemed rather appealing.

I simply informed the casual anti-Semite sitting in front of me that no such warning was ever issued to the Jewish community of the greater New York metropolitan area, and that many Jews, in fact, were killed on 9/11. I explained to him that the assertion is absurd on its face, for Osama bin Laden is quite open about his intent on killing Jewish civilians throughout the world.

“But Sidi told me that…” Sidi is an illiterate peanut farmer who lives down the street.

I framed the problem like this: I am from New York – Sidi has never strayed more than a donkey cart’s ride away from his village; I have read the 9/11 Commission Report from cover to cover – Sidi cannot read; I am a New York Jew – Sidi would not know what a Jew was if he clocked him across the face with a bottle of maneshevitz.

In the end I think I won. Though throughout the conversation, I could not help but eyeball that boiling teapot.

There really isn’t much more to this story, in truth it’s not much of a story at all other than a cautionary reminder that even in perhaps the most moderate, pro-Western of countries in the Islamic world, the vilest of anti-Semitic slander is disseminated with the greatest of ease. I can’t really blame the people who fall for it, because they have no source of information other than gossip and hearsay garbled a hundred times down the telephone line.

I feel that I can rightly blame those few demented, self-fashioned journalists and educators who use their power over the minds of men to give credence to such malicious lies. But the sad truth is that sick minds like these have existed since the days of Pharaoh, they always will, and there’s nothing anyone can do to make them go away. But there is plenty that can be done by Israel, the United States, and especially the American Jewish community to dilute their message and undermine their credibility.

From Senegal to Syria to Pakistan to Indonesia, the overwhelming majority of the world’s Muslims grow up in stifling poverty with little to no access to public education. In many countries the only opportunity that many Muslim youth will ever have at receiving a free education or a secondary education of any form is the madrassa system funded by wealthy Arabs from the oil-rich Gulf States. Despite the awful press they have received in past years, there is nothing inherently wrong about the madrassas – they are in essence no different than Catholic boarding schools. But if there is a madrassa in a given city teaching its garabouts to believe in a global Zionist conspiracy, then that is probably the only semblance of an education they can ever hope to get.

I must admit that when it comes to the most politicized madrassas which propagate such hateful screeds, it might be the only time that I will ever agree with Paul Wolfowitz: the United States and the rest of the industrial powers must embark on massive campaign to finance public education in the Islamic world. This money need not be slanted towards the ideological indoctrination in free market democracy but the basics of reading, writing and arithmetic, for that alone is enough to allow students to develop opinions of their own and bust the madrassas’ near monopoly on public opinion.

Furthermore, the State of Israel has a great role to improve this current state of affairs. At the present, there is no sign of an Israeli presence in Mali – which is a shame, seeing that all things being equal Mali remains one of the most tolerant of Muslim countries, the Malian people are unanimously supportive of international development efforts, and the government of President Amadou Toumani Touré is avidly embracing any and every foreign government which offers such aid. Israel more than capable of financing a modest assistance program and I can’t think of one good reason why it has not done so already.


I hate to say it, but Jerusalem should emulate the example being set by Muammar el-Qaddafi. They should open up an Israeli Embassy in Bamako and make a good first impression by embarking on a spending spree to finance the construction of new schoolhouses. If the Livni cabinet could allocate a minute fraction what is spent on subsidies for the building of new settlements in the West Bank to send Israel’s famed water engineers to Mali, they could do for Islamic communities bordering the Sahara what investments in irrigation have done for horticulture in the Negev Desert. Were the Israeli Foreign Ministry to become as visibly involved in West African development programs as say, Luxembourg, one cannot help but think that the soft power influence would deprive local anti-Semitism of oxygen and maybe even establish a few more moderate Islamic allies to prod Palestinian cooperation in a future peace process. If only…

I should quit while I’m ahead. Next time someone asks, I’ll say I’m from Chicago.