Publishing Pro-Hamas Propaganda Is Protected by First Amendment

From Judge Tiffany Cartwright (W.D. Wash.) in Friday's Jan v. People Media Project:

Plaintiff Almog Meir Jan is an Israeli citizen who was kidnapped on October 7 and held hostage by Hamas operative Abdallah Aljamal before being rescued by the Israel Defense Forces…. Jan alleges that Defendants employed and compensated Aljamal as a journalist and provided him a U.S.-based platform to publish articles supporting Hamas. Jan asserts that through these actions, Defendants aided and abetted his kidnapping and imprisonment as well as aided and abetted terrorism in violation of the Alien Tort Statute (ATS), 28 U.S.C. § 1350.

The court rejected the claims based on payment to Aljamal, for reasons I note in a separate post. But here is the court's explanation for rejecting the claims based on publishing pro-Hamas propaganda:

Jan alleges that by publishing Aljamal's articles, Defendants gave him a "platform to write and disseminate Hamas propaganda," aiding and abetting Hamas by garnering sympathy and attracting support for its cause….

"The Free Speech Clause of the First Amendment—'Congress shall make no law … abridging the freedom of speech'—can serve as a defense in … tort suits." Snyder v. Phelps (2011). Here, as in Snyder v. Phelps, whether the First Amendment prohibits holding Defendants liable for their articles turns largely on (1) whether their speech is of public concern, and (2) whether their speech is limited to theoretical political advocacy, rather than speech meant to incite or produce unlawful activity. See Snyder; Brandenburg v. Ohio (1969)….

The Court [in Brandenburg] explained that "the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." The Constitution distinguishes between supporting the political goals of an organization—even a violent one—and either inciting imminent unlawful conduct or using speech for "management of actual crimes."

This Court, then, must examine the speech that Jan alleges served to aid and abet Hamas and decide into which category it falls. Jan's complaint alleges that Defendants published articles written by Aljamal with the following content:

• "[O]n October 23, 2023, Defendants published a propaganda piece by Hamas Operative Aljamal calling October 7 a 'daring attack' and accusing Israel of starting a 'war on the Gaza population' in order 'to forcefully displace Palestinians from their homeland.'"
• "Other pieces highlighted Palestinians killed or injured in Israel's targeted responses to Hamas's attack…."
• "[W]hen Hamas falsely claimed that it captured Israeli soldiers in Jabaliya, Hamas Operative Aljamal wrote an article repeating that false claim on Defendants' platform."
• "Aljamal even eulogized known Hamas terrorists….Aljamal accused Israel of assassinating Iyad Maghari, the mayor of Nuseirat….Aljamal's propaganda piece painted Maghari as a hero and martyr…Aljamal failed to mention that, according to the IDF, Maghari was a terrorist 'with an extensive history in Hamas.'"
• "Aljamal was instrumental in spreading misinformation about an Israeli airstrike that targeted a school run by the United Nations Relief and Works Agency…Aljamal called the attack a 'gruesome massacre' and accused Israel of 'targeting displaced civilians.'"

There is no question that, as in Snyder, this is core political speech addressing matters of public concern…. The terrorist attacks on October 7, and Israel's military response, are subjects of extensive news interest and political concern to the global community. The articles Defendants publish in the Palestine Chronicle are intended to convey their "position on those issues, in a manner designed … to reach as broad a public audience as possible." Many of the positions taken by the Chronicle, such as highlighting the deaths of Palestinian civilians and criticizing Israeli airstrikes, have been echoed by countless news organizations, protesters, and political leaders around the world.

These articles do not cross the line from protected speech to inciting or preparing for unlawful activity. Nothing in the complaint alleges that Defendants advocated for, incited, or planned specific human rights violations. Even taken as true, Jan's allegations that the articles unfairly characterize or falsely report Israel's military actions do not change the protected nature of political speech. The Supreme Court has long recognized that "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the breathing space they need to survive."

And even if Aljamal's description of October 7 as a "daring attack" and his eulogy for the mayor of Nuseirat are read as praise for Hamas and its acts of terrorism, Brandenburg holds that this is not enough to defeat the protection of the First Amendment. Like the ugly celebration of the deaths of American soldiers on the picket signs from the Westboro Baptist Church, even articles sympathizing with Hamas remain protected when they speak on matters of public concern. Because Defendants' articles are shielded from tort liability by the First Amendment, Jan's claims that those articles aided and abetted Hamas must be dismissed….

Note that knowingly providing communications facilities to Hamas (in coordination with Hamas, rather than just by republishing already written Hamas propaganda, at arm's length) would be punishable under the statute banning knowing support for designated foreign terrorist organizations, and may well be constitutionally unprotected against punishment under that statute (cf. Holder v. Humanitarian Law Project (2010)). But that would at least require a showing that the defendants knew that Aljamal was acting on behalf of Hamas (something the court concluded plaintiff hadn't adequately alleged); and it appears that plaintiff hadn't argued that the speech was unprotected under Humanitarian Law Project or covered under the material support statute.

Daniel Kovalik and Ralph Hurvitz represent defendants.