Does Denying Hamas Committed Sexual Violence on 10/7 Constitute "Criticism of Israel's Treatment of Palestinians?"

Federal judge Timothy Savage seems to think so.

I just read Judge Timothy Savage's opinion dismissing Professor Amy Wax's discrimination counts in her lawsuit against the University of Pennsylvania. One of Professor Wax's arguments was that Penn applied different disciplinary standards to her speech, which the university deemed racist, than to antisemitic speech by other Penn faculty and employees.

Judge Savage rejects this aspect of her claim for a variety of reasons, one of which I found pretty shocking, to wit: Judge Savage argues that the professors and other Penn employees Wax compares herself to "were not antisemitic; they were critical of Israel's treatment of Palestinians."

Put aside the issue of whether these statements were in fact antisemitic in a way comparable to the racism charges leveled against Wax. Most of them had nothing to do with criticism of "Israel's treatment of the Palestinians."

Professor Wax's complaint alleged:

(1) Professor Ann Norton faced no discipline after denying that Hamas committed sexual violence against Israelis on October 7, and also after tweeting that "Young Jews" are persuaded that "they are always already victims."

(2) Professor Huda Fakhreddin endorsed the view that Israelis [civilians] are "legitimate military targets", and brought antisemitic speakers to campus, and not only faced no discipline, but was assigned to teach a class "Resistance from PreIslamic Arabia to Palestine."

(3) Professor Ahmad Almallah, a Palestinian poet and artist in residence and lecturer at Penn, led a rally in Philadelphia where he chanted "There is only one solution: intifada revolution," and faced no discipline.

(4) Penn declined to sanction employee Dwayne Booth, an employee of Penn for posting cartoons depicting Jews as Nazis drinking the blood of Palestinians.

(5) A Penn librarian received no discipline for posting "I love Hamas."

(6) Penn Health employee Ibrahim Kobeissi faced no discipline after denying sexual assault by Hamas on October 7, suggesting Netanyahu orchestrated October 7, and referring to members of Congress as "retards" for supporting Israel.

Federal judges are not in an especially good position to be referees as to whether such sentiments reflect antisemitism or not, though, like the comments that led to Wax's discipline, they certainly are offensive to a large body of Penn constituents. On the other hand, they did not directly concern internal Penn matters or Penn students, as Wax's comments did.

But my point is not whether the parallels alleged by Wax are valid in a legal sense in a discrimination claim.

Rather, I want to emphasize the oddity of Judge Savage's blanket description of these comments as merely "critical of Israel's treatment of the Palestinians." That's just wrong.

I suppose of few of the items above could, interpreted generously, be seen in that light, even if, e.g.,  depicting Israelis as drinking Palestinian blood isn't exactly either contributing to rational debate nor showing concern for reusing traditional antisemitic imagery.

But saying that young Jews are brainwashed into thinking they are victims, denying  undeniable (!) sexual violence by Hamas on October 7, expressing support for Hamas, expressing approval of targeting Israeli civilians… none of those constitute criticism of Israel's actions vis a vis Palestinians.

I find this particularly interesting, because it reflects something I see on social media all the time.

Person A: Malevolent Jews, playing their traditional role of undermining all humane values, are supporting the modern child-sacrificing Moloch, the State of Israel.

Person B: That's well-beyond the realm of reasonable debate and into blatant antisemitism.

Person C: Stop trying to censor Person A for criticizing Israeli treatment of Palestinians.

In other words, it's not that much criticism of Israel is not antisemitic, it's that any claim that a statement that is in any way related to Israel is antisemitic is immediately dismissed, i.e., that no statement that is at least indirectly targeted at Israel can be antisemitic.

So it's not that Judge Norton's bizarre dismissal of Wax's allegations as only being about Israel's treatment of Palestinians, despite in some cases neither Israel nor Palestinians being mentioned, is unusual, it's that I expect more from a federal judge than from Twitter trolls.

Comments

[Martinned]

For the record, while the six examples you give are often difficult to assess without more context, most of them strike me as referring directly to the Israel/Palestine conflict, and therefore as (arguably) critical of Israel, not antisemitic. That doesn't mean they're not stupid, it just means they don't appear to be antisemitic.

Example 4 is of course an exception, if it does in fact show what you claim it shows.

[David Bernstein]

The judge didn't say that relate in some way to the Israel/Palestine conflict, which is true of most of them, he said that they are merely criticism of Israel's treatment of Palestinians, which is not true of most of them. To take an extreme example, if I say that the Rothschilds control the banks of the world, and this ensures that Israel gets support from world elites dependent on the Rothschilds, that would "relate" to the Israel/Palestine, but is not, in fact, criticism of Israel's treatment of the Palestinians but instead a wildly counterfactual and antisemitic conspiracy theory. The notion that Israel made up sexual violence on 10/7 that has been voluminously document is in the same league, albeit without the historical pedigree of Rothschild conspiracy theories. That said, and as I noted, federal judges are not in a great position to determine what constitutes, eg, intentionally antisemitic conspiracy theory as opposed to conspiracy theory that happens to involve Jews, but that's a separate issue from making the leap that any statement in any way critical of Israel is specifically about Israel's treatment of Palestinians.

[Martinned]

if I say that the Rothschilds control the banks of the world, and this ensures that Israel gets support from world elites dependent on the Rothschilds, that would "relate" to the Israel/Palestine, but is not, in fact, criticism of Israel's treatment of the Palestinians but instead a wildly counterfactual and antisemitic conspiracy theory.

Agreed.

The notion that Israel made up sexual violence on 10/7 that has been voluminously document is in the same league, albeit without the historical pedigree of Rothschild conspiracy theories.

Quite possibly, but that doesn't change the fact that it's a conspiracy theory about Israel, not a conspiracy theory about the Jews.

That said, and as I noted, federal judges are not in a great position to determine what constitutes, eg, intentionally antisemitic conspiracy theory as opposed to conspiracy theory that happens to involve Jews

Agreed, but that doesn't change the fact that, in some circumstances, they are unavoidably the finders of fact. (And in other circumstances the finders of fact are the jury, who are even less able to do that job.)

[Krayt]

Israel, in this context, is a synonym for Jews. If it is the same old tropes with one word changed, and the exact same neurons light up for the exact same reasons, it's a duck.

[Michael P]

We sadly see it in the comments here, as well. At least unless we mute the half-dozen or so vigorous antisemites who regularly pretend that their hatred is merely "criticizing Israeli treatment of Palestinians."

[jb]

The example in the headline is an odd one to highlight. On the one hand, I agree it's not really about Israel's treatment of the Palestinians; on the other hand, it seems like a stretch to lump it in as anti-semitic, either. Overly tolerant/defensive of Hamas's behavior, sure, but it doesn't seem to be making statements about Israel or Jewish people's behavior at all.

And this example seems particularly strawman-y:

Person A: Malevolent Jews, playing their traditional role of undermining all humane values, are supporting the modern child-sacrificing Moloch, the State of Israel.

Person B: That's well-beyond the realm of reasonable debate and into blatant antisemitism.

Person C: Stop trying to censor Person A for criticizing Israeli treatment of Palestinians.

The discussions I see are a lot more like:

Person A: Israel shouldn't bomb all of those civilians. We're well past the point where Hamas is a meaningful threat to Israel.

Person B: You are so antisemitic!

(I hesitate to wade into these discussions because it seems like there is no way to take a position that someone isn't going to describe as either anti-semitic or pro-genocide, so the debates aren't very constructive.)

[David Bernstein]

I thought I made it as clear as I possibly could that I'm not saying that the judge should have made the determination (and certainly not on a motion to dismiss!) that the statements Wax quotes are antisemitic, but rather that the judge can't dismiss claims of antisemitism by saying that statements that have nothing directly to do with Israel's treatment of the Palestinians are merely statements about Israel's treatment of the Palestinians.

[Social Justice is neither]

Well when you start your argument with the reaction and not the terrorist act that started this, you are taking a side in support of terrorism and all the horrors that entails both in the past and the future that your call to inaction would create.

[Martinned]

Yes, which is definitely problematic. The question is whether it is antisemitic.

[jb]

I'm not supporting the statement; I'm not even disagreeing with Professor Bernstein that it isn't about Israel's treatment of the Palestinians. I just thought it was a weird one to put in the headline on since it's also pretty obviously not antisemitic per se.

[Bored Lawyer]

We're well past the point where Hamas is a meaningful threat to Israel.

The word "meaningful" is doing a lot of work in that sentence. At one point is a threat "meaningful?" When it threatens to destroy the state (existential)? Or when some given number of civilians will be killed? How much Hamas terrorism must Israel suffer before the threat become "meaningful" in your estimation?

Was 9/11 a meaningful threat to the US? It certainly was not an existential threat. Yet the US projected a great deal of military force on the other side of the globe in reaction.

[Stupid Government Tricks]

And proportionally, per capita, October 7th was far more deadly than 9-11.

[jb]

Maybe you're right. Like I said, I try to avoid the substantive debates on this because the dialog is so toxic.

My point was that was much closer to the type of statement that routinely gets branded as antisemitic than Professor Bernstein's hypothetical. Which, yeah, is obviously antisemitic. But the only people I actually see making comments like that egregious are actually MAGAs like Lex.

[Darwinnie]

I wouldn’t want to be Black in Wax’s class, and I wouldn’t want to be a Jew in those other professors’ classes. I just struggle with the argument she made that somehow excusing the others’ assumed racism means hers should be excused too. It’s just whataboutism.

[Bored Lawyer]

When you are imposing discipline on someone, you need to have consistent standards. If a university punishes professors for one kind of racism but tolerates a different kind, there is something very wrong with the university. Legally wrong.

On this board, "whataboutism" is often a deflection from pointing out double standards.

[David Bernstein]

of course it's whataboutism, because it's a discrimination claim based on disparate treatment. The law allows such claims. Imagine a black employee gets fired for taking home a $10 package of pens, but white employees who took home similar or greater value office supplies received no discipline. Does that make it ok that the black employee took office supplies? No. Might the black employee still have a valid discrimination claim? Yes.

[Roger S]

I saw Netanyahu go into a rant about Jewish babies being burned alive on 10/7. Is there proof, or is that a made-up story? Just asking, I do not know.