On May 3, 2023, the D.C. Circuit Court of Appeals upheld the dismissal of a lawsuit filed by the Jewish National Fund (JNF) and several U.S. citizens living in Israel against the U.S. Campaign for Palestinian Rights (USCPR). This case is a victory against a broader “lawfare” trend in which politically motivated groups target dissenting civil society operating in Palestine and Israel by way of disingenuous legal tactics deployed through the U.S. courts.
During the Great Return March, a series of protests held at the Gaza-Israel border throughout 2018-2019 calling for the end of the Israeli blockade, unnamed demonstrators flew incendiary kites and balloons into Israel causing injuries and property damages. As Charity & Security Network previously described in its summary of the case and proceedings, JNF argued that USCPR was liable for these injuries under the Anti-Terrorism Act (ATA) because it made statements in support of the protesters at the Great Return March and collected funds from U.S. donors for the Boycott National Committee (BNC) in Palestine. BNC describes itself as “the broadest Palestinian civil society coalition that works to lead and support the Boycott, Divestment, and Sanctions (BDS) movement for Palestinian rights.” One of BNC’s members is a coalition that includes Hamas, which the State Department has designated a Foreign Terrorist Organization (FTO).
Fabricating far-fetched linkages between targeted civil society organizations and FTOs is a common strategy employed by politically motivated “lawfare” groups.
The Anti-Terrorism Act allows any U.S. national suffering injury due to an act of international terrorism to sue in federal court and, if successful, recover triple damages (18 USC 2333(a)). The standard to establish liability (18 USC 2333(d)(2)) is for an act of international terrorism to be “committed, planned, or authorized” by a designated FTO (direct liability) or “any person who aids and abets, by knowingly providing substantial assistance, or conspires with the person who committed such act of terrorism” (indirect liability).
In response to JNF’s claims, USCPR filed a motion to dismiss, arguing that JNF did not allege facts to support their conclusions, that USCPR’s activities are lawful, that the plaintiffs relied on guilt by association and did not allege facts that would “bridge the gap between these lawful, peaceful and protected acts and the damage caused.”
The motion to dismiss was granted in March 2021. The lower court stated that the plaintiff’s arguments “are, to say the least, not persuasive.” JNF asked the court to reconsider, and after the court denied that request, JNF appealed the case to the U.S. Circuit Court for the District of Columbia.
This May, over three years after the initial case was filed, the D.C. Circuit Court of Appeals upheld the dismissal, reasoning that “[a]dvocating and coordinating a boycott of Israel — ‘economically, academically[,] and diplomatically,’… — is not unlawful.” The court stated that JNF’s attempt to establish liability “fails at every turn,” calling the allegations against USCPR “nothing more than guilt by association.” The court also noted that the “appellants’ allegations are far less convincing than those we have evaluated in prior cases.”
According to Diala Shamas, Senior Attorney for the Center for Constitutional Rights, and one of the attorneys who represented UCSPR in this case, “[t]his lawsuit was about punishing the US Campaign – and Palestinians – for daring to advocate for Palestinian rights and for supporting the Palestinian call to Boycott Israel.”
This case is part of a larger effort to target civil society operating in Palestine through lawfare attacks, in which politically motivated lawfare groups attempt to undermine dissenting civil society through baseless legal attacks, deplatforming, and disinformation. Often, the goal of these attacks is to consume the time and resources of their targets.
The D.C. Circuit’s rejection of the plaintiff’s allegations is a win for civil society and evidence that unsupported claims and politically-motivated legal attacks will be unsuccessful in silencing legitimate civil society organizations.