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.

Comments

[John F. Carr]

Does Washington's anti-SLAPP law apply in federal court? According to a news summary it explicitly protects freedom of the press.

[A Japanese Student]

I first thought, "that's a procedural rule not subject to Erie right?" Turns out CA9 has ruled otherwise, at least with respect to California statute. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 171 F.3d 1208 (9th Cir. 1999); Makaeff v. Trump University, 736 F.3d 1180 (9th Cir. 2013) (denying rehearing en banc)

[John F. Carr]

Such laws are a hybrid of procedure and substance. They differ in details that might affect federal court's recognition. Some anti-SLAPP laws create a right not to be sued, which has often been treated as a substantive right in federal court.

[Frank Drackman]

Abdulla Ali-Pajama's Story has a Happy Ending, (love the Happy Endings)
A Gaza journalist who wrote for Al Jizz-eera was holding three hostages in his home with his family before he was killed by Israeli commandos during a rescue operation Saturday, according to the Israeli military.
Abdallah Aljamal, who also worked as a spokesman for the Hamas-run labor ministry, was killed when special forces soldiers stormed his home in central Gaza and rescued hostages Almog Meir Jan, 21, Andri Kozlov, 27, and Shlomi Ziv, 41, the Israeli military said.
Aljamal’s death was originally reported by Rami Abdu, the head of the Euro-Med Human Rights Monitor, who claimed Israel Defense Forces soldiers raided the journalist’s home and killed him and several members of his family.

[Longtobefree]

Just a reminder, Hamas is a terrorist organization.

[ReaderY]

Both claims might potentially be revivable by pleading additional facts. In this case, the plaintiffs might be able to show that for example one or more of Aljamal’s articles went beyond simple abstract advocacy to pleading for specific material support for Hamas.

I am wondering, however, if the District Judge here is being a little too strict. The defendants knew Alijamal was a Hamas official. It’s not clear to me that they had to know specifically that he was personally holding the plaintiff hostage in his own home for their payments to him to constitute material support to Hamas. It seems to me that simply knowing he was a Hamas official might be enough here. It strikes me that knowing a person is an actual Hamas official is enough evidence to get beyond mere negligence and is closer to something like recklessness.

I also think this case is different from the Twitter case because the defendants weren’t simply supplying a general service to Alijamal that they supply to every member of the public, as Twitter did. Nor were they employing him in a general job like distributing relief supplies for which membership in a terrorist organization would be irrelevant to the job. Rather, I think the plaintiff here could plausibly allege thay they employed him specifically because of his knowledge of and expertise in Hamas and its viewpoint, that is, specifically BECAUSE he was a Hamas spokesperson. So it strikes me that this case runs far less risk of sweeping in innocent bystanders than Twitter did.

[Frank Drackman]

In my book, you pay a Terror-ist, you're a Terror-ist, with all of the consequences that entrails (HT T. Soprano)

[David Nieporent]

I am wondering, however, if the District Judge here is being a little too strict. The defendants knew Alijamal was a Hamas official. It’s not clear to me that they had to know specifically that he was personally holding the plaintiff hostage in his own home for their payments to him to constitute material support to Hamas. It seems to me that simply knowing he was a Hamas official might be enough here. It strikes me that knowing a person is an actual Hamas official is enough evidence to get beyond mere negligence and is closer to something like recklessness.

First, he didn't plead that they knew the guy was a Hamas official. Second, this is not a 'material support' case. This is a case where the former hostage is claiming that the defendants aided and abetting his kidnapping. That means he needs to plead some knowing connection between their actions and his kidnapping (before or after the fact); the mere fact that they knew the guy was in Hamas — which, again, they didn't plead — would not be sufficient.