By Joel Magalnick, Editor, JTNews
Two words. That’s all it took. In the ongoing scuffle within the Jewish community about whose views matter more in the Israeli-Palestinian conflict, a war of words between two online voices recently blew up into a legal battle. The suit could have First Amendment ramifications beyond the limited scope of this modern-day electronic pamphleteering.
The case, Rachel Neuwirth vs. Richard Silverstein, et al, was filed earlier this year in Los Angeles Superior Court. On November 27, Judge John Reid tossed the case out.
“I feel like this is a victory for free speech on the Internet, and it’s also a victory for people who want to have the widest possible debate about issues in the Israeli-Arab conflict as well, here in the American Jewish community,” Silverstein, a Seattle-based blogger and one of two defendants Neuwirth sued for libel, told JTNews.
The case itself focused on the words “Kahanist swine,” which Silverstein posted in May about a fake blog site he had originally alleged Neuwirth and an anonymous blogger had set up in Silverstein’s name. Silverstein has since backed off of his contention that Neuwirth was directly involved, though he believes she and the anonymous person are at least tangentially aligned.
Neuwirth, however, disagreed.
“She never threw any mud at him, she was never responsible for things that he wanted to blame on her, and she so testified and he couldn’t prove to the contrary,” said Charles L. Fonarow, Neuwirth’s attorney. “The only thing she ever did was try and talk to the guy, and for that he just let loose all his s—-.”
Neuwirth declined to comment for this story.
Silverstein’s regularly updated and decidedly liberal blog, called Tikun Olam — which means, as so many Jews schooled in the language of social action know, to repair the world — attracts hundreds, if not thousands, of viewers every week.
According to his site’s biography, Silverstein is a “progressive Zionist. I support a two-state solution to the conflict involving Israeli withdrawal roughly to pre-‘67 borders (with some adjustments) and an internationally guaranteed peace agreement with the Palestinians.”
The site has plenty of supporters, which can be attested to from the comments that appear below many of his posts; but those comments also show Silverstein’s multitude of detractors.
Some of those detractors, Silverstein said, have attempted to stifle his and others’ similar views by spreading malicious rumors, and in some cases — aside from Neuwirth — threatening legal action. Neuwirth is the first to follow through by actually filing suit against Silverstein.
“We are canaries in the coal mine, the people like us who are out there who are putting forward our views about this,” Silverstein said. “If you go to any of these Kahanist sites, you just read the rhetoric [against those] favoring peace agreements and reconciliation between Arabs and Jews, and it’s just vile, disgusting and hateful. It does intimidate a lot of other people not to speak out.”
On his site, Silverstein regularly refers to people who he believes place the entire blame of the Middle East conflict on the Arab population as “Kahanist,” which he defines as “someone who adheres to a political philosophy that Meir Kahane espoused when he was alive, which is basically a Jewish racialist philosophy saying that Arabs are inferior to Jews.”
The Kahane Chai organization is listed in several countries, including the U.S. and Israel, as a terrorist organization.
Despite the vitriol common in his own posts and the comments on various blogs critical of him, Silverstein said he tries to take the high road rather than engage in so-called gutter talk — something his wife would prefer as well — but “when someone insults your children and…says that your favorite book is Mein Kampf and that your primary goal in life is to destroy Israel,” he feels he has to defend himself.
Though the libel case revolved around the “Kahanist swine” epithet, it originated with another lawsuit Neuwirth filed, against UCLA’s Hillel director Chaim Seidler-Feller. Four years ago, after a speaking engagement by a Palestinian peace activist, Neuwirth approached Seidler-Feller. News reports at the time stated that she called the longtime leader of the campus’ Jewish organization a “kapo” — referring to a Nazi guard — and he then physically attacked her. In May, Seidler-Feller apologized publicly and took responsibility for the assault.
“According to these reporters of, or commentators on, the incident, I was the true aggressor, having provoked the Rabbi ‘beyond human endurance’ by a grave insult,” Neuwirth wrote on the Israel Insider Web site after the case was settled. “In reality, I had not called Rabbi Seidler-Feller this or any other disparaging name, or indeed made any disparaging or provocative remark to him at all, before he assaulted me.”
Silverstein got involved in the fray because, he said, when he attended graduate school at UCLA, he had worked closely with Seidler-Feller and had trouble believing that the public apology Seidler-Feller made, four years after the incident, reflected the actual events of that day.
“Basically, I was expressing my opinion that I believed one set of facts and she believed another,” said Silverstein. “I wanted to be as fair as I could, but I didn’t want to concede my own view on this.”
Neuwirth, through attorney Fonarow, sent a letter to Silverstein requesting that he remove his posting from the site — a request also made of any other publication that had reported on the assault, including The Forward, the L.A. Jewish Journal, and the Jerusalem Post.
“She demanded not only that the newspapers publish Seidler-Feller’s apology, but that they take off their site any article which made any allegations along the lines that Seidler-Feller had made,” Silverstein said.
The Jerusalem Post complied with the request and put an apology on its Web site, which Silverstein said he found “to be completely unprecedented and shocking…. I thought that was just a craven capitulation to intimidation on her part.”
Rob Eshman, editor-in-chief of the Jewish Journal, didn’t believe any action was necessary.
“We stand by the story and there’s no reason to retract it,” Eshman said.
Silverstein found a pro bono attorney, Dean Hansell, and refused to comply. Next came the lawsuit.
“Even though Rabbi Seidler-Feller, as a result of the settlement, admitted full responsibility and that she didn’t provoke the attack at all, Silverstein nevertheless calls her a liar and says that he doesn’t believe what Seidler-Feller has admitted,” Fonarow said. Silverstein’s original comments “may be a tad short of defaming her, but not much, and then he goes on to start committing the acts, which were clearly defamatory, for which we sued.
“A Kahanist is a terrorist, and however you slice it, it’s a defamatory remark.”
Also named in the suit was Stanford University professor Joel Beinin, who alleged Neuwirth had left a death threat on his answering machine with a statement that said, in essence, that Hitler had killed the people who betrayed their own nation first.
Beinin filed a police report with the Stanford campus police and posted details to a left-wing e-mail listserve based at the University of Haifa. Silverstein reported the message on Tikun Olam and agreed that the message sounded like a death threat.
“When someone says Hitler came and killed the traitors first and implied you are one of those people, what are you supposed to think?” said Silverstein. “God forbid sometime some crazy person is going to make a threat like this and is going to follow through.”
Fonarow said any allegation that Neuwirth’s message was a death threat is a lie.
“She leaves him a message that in effect said, in the same tone, you can’t be saying [anti-Israel statements] because the Jews have to be vigilant at all times,” Fonarow said. “Look what they did to David [sic] Pearl, and look what Hitler did, and he takes that as a death threat, which is preposterous.”
The separate incidents were joined in the same suit because Silverstein reported on Beinin’s posting, Fonarow said.
Believing Neuwirth was attempting to stifle protected speech, Silverstein filed an anti-SLAPP motion. This California statute, Strategic Litigation Against Public Participation, prevents misuse of the legal system to file lawsuits that might curb free speech in a public forum about an issue of public interest. The judge found Silverstein’s motion fit the criteria.
“It’s a ridiculous decision,” Fonarow said. “The statute was never intended to apply to a situation like this and I’m going to appeal and hopefully get it reversed. What the decision has done has in effect given Silverstein carte blanche to vilify and defame Rachel all he wants.”
But Fred von Lohman, an attorney with the Electronic Frontier Foundation, which champions free speech in the digital arena, said this case was precisely why California adopted the SLAPP statute.
“By publishing this on a blog, [Silverstein] was engaging in precisely the kind of protected speech the California SLAPP statute was written to protect,” von Lohman said. “This is really the tip of a much larger iceberg, because as more and more political speech and commentary goes online, it’s inevitable that there will be more need to clarify that the First Amendment [protections apply] to bloggers just like they apply to traditional pamphleteers.”
If Neuwirth’s case fails again on appeal, added von Lohman, it will set precedent in California that other courts will need to pay attention to.
Judge Reid cited several reasons for granting the anti-SLAPP motion that dismissed Neuwirth’s case: First, he wrote, Neuwirth is a “limited purpose public figure” because she regularly writes about the conflict on various Web sites. The bar for proving libel is set higher for public figures. Second, Tikun Olam fits the criteria for a public forum. Third, to prove libel, the plaintiff must prove malicious intent. While on its face, Judge Reid wrote, the statement is defamatory, “since it is not phrased in a factual way, it is likely to be construed as an opinion.” In addition, he added, Neuwirth never presented evidence “to show that Defendants made the statements about her with actual malice.” Finally, Judge Reid wrote, “she does not actually deny being a Kahanist.”
Fonarow took issue with Judge Reid’s assertions and suggested that a “trier of fact” would find actual malice in Silverstein’s postings.
“She’s a private person,” he said. “She makes her money selling real estate even though she likes to write a lot of articles because she’s so pro-Jewish…. The only area you can say [falls] under the statute is that she was trying to try to talk to [Silverstein] about a matter that I guess could be considered by the courts to be a subject of public debate.
“As far as I’m concerned there was actual malice,” he added. “If you look at all the other things that he said, in blog after blog after blog, there’s evidence of actual malice even though the trial judge dismissed it as falling short.”
The case has gotten some attention nationwide. The Citizen Media Law Project, which is affiliated with Harvard Law School’s Berkman Center for Internet and Society, posted a summary on its Web site. And that the case could set precedent piques the Electronic Frontier Foundation’s von Lohman’s interest.
“There are lots of things about this case that are pretty standard about First Amendment law,” he said. “The thing that is different is that we don’t have the standard applied to blogs.”
While Silverstein has posted that he doesn’t look forward to the appeals process, he believes he will be vindicated in the higher courts.
“All of us who are on this side of the free speech argument are really excited about this development, and that’s one of the reasons why, if this is appealed, I feel even more hopeful,” he said. “I would like not just for California law to recognize the right to speak widely and freely about political issues without fear of threat and intimidation, but I’d like it to be a national issue. There’s just too much threat and intimidation on the Internet.”