Last week the once-proud ACLU sent a letter to 650 colleges and universities defending the “rights” of student groups to provide material support for anti-Semitic genocidal terror. The letter was legally and factually wrong on its face, and belied a laziness bordering on negligence. It is sad, but not surprising given the organization’s recent track record when it comes to protecting Jews.
The ACLU’s missive was ostensibly written in response to a letter sent by the Anti-Defamation League and the Louis D. Brandeis Center for Human Rights Under Law last week, which urged university presidents to investigate the Students for Justice in Palestine (SJP) chapters on their campuses to see if they were in fact doing what they explicitly claimed to be doing, i.e. providing material support for U.S. designated terrorist groups. The ACLU claimed they “are aware of no evidence” supporting the claims made in that letter, or in similar statements made by Florida Governor Ron DeSantis when his administration actually defunded SJP for those same reasons. But if the ACLU is truly unaware, they are either incompetent or willfully ignorant.
SJP is a radical activist organization that regularly engages in blatant anti-Semitism. As far back as 2016, Congress heard testimony from Jonathan Schanzer, a former terrorism finance analyst at the U.S. Department of the Treasury, about the links between SJP leadership, Hamas and other terrorist groups. Until recently, however, there was no evidence of SJP providing material support back to those organizations. Now there is.
In the wake of the October 7th atrocities committed in Israel, SJP chapters across the country held a ‘National Day of Resistance’ to support the US designated terrorist organization Hamas, which had just killed 1,400+ innocent men, women, and children in the worst massacre of Jews since the Holocaust. Hamas’ cause is the worldwide genocide of Jewry, everywhere, including on campuses in America. It is spelled out in their charter, separate and in addition to the clauses vowing the obliteration of the State of Israel. In advance of their ‘Day of Resistance,’ the National SJP group released a toolkit for their chapters to use and coordinate their efforts. In doing so, SJP kindly provided law enforcement with some additional confirmation of their criminal activity.
As the ACLU acknowledges, the toolkit endorsed “the brutal mass murder of civilians,” and exhorted participants to be clear that they are “part of this movement,” and that “[a]ll of our efforts continue the work and resistance” — previously defined to include the rape, torture, and murder committed on October 7th — “of Palestinians on the ground.” But the toolkit also did more than that, as the ACLU is also well aware. Among other things, it included public relations materials, expert training materials, persuasion training materials, and other materials carefully crafted and designed to effectively teach people how to avoid pesky facts and replace them with “frameworks” that would normalize and spread Hamas’ message so they could influence public opinion and public policy. There were even some direct quotes from terrorist leaders themselves! The ACLU knows this, because they have the toolkit; they just chose not to mention it.
Under 18 U.S.C. §2339B, it is a federal crime to “knowingly provide material support or resources to a foreign terrorist organization.” In Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court held that material support, resources, or service can include even some forms of speech, if it was done “under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” Courts (including Florida courts) have been absolutely clear that the kinds of services SJP is offering on behalf of Hamas would count as material support. The ACLU knows this, and so the ACLU just ignores that aspect of the argument. They focus instead on the coordination part, writing that “We are aware of no evidence suggesting that the National SJP published the statements … in coordination with, or at the direction of, Hamas. If coordination and direction are absent, the National SJP’s independent advocacy is fully protected by the First Amendment.”
That abstract statement is true on its face, but incredibly awkward for the ACLU in context, because even a first-year law student could have shepardized the Holder case and found that missing link, let alone the National Directors of the ACLU. But I’ll do it for them: Since Holder, numerous courts have held that the government is not required to establish or even allege actual connection or direction with a terrorist organization, so long as the government presents evidence that defendant attempted to provide material support.
In this case, Hamas is known to be a foreign terrorist organization and SJP is open about the fact that they are holding their events specifically to answer Hamas’ call and to further their messaging efforts with expert materials and training as a part of Hamas’ greater movement. When someone tells you that they are trying to provide material support for terror, it is in everyone’s best interest to believe them.
Perhaps the most telling and embarrassing part of this story for the ACLU is that Palestine Legal, the law group which actually represents SJP, also sent a letter to the State University System of Florida decrying DeSantis’ action. But their letter, at least, did not blindly ignore the fact that SJP is clearly guilty. Palestine Legal had the decency to basically admit as much, and instead argued that the laws SJP had violated were themselves somehow unfair. Their letter said they would be challenging “the broad and vague ‘material support for terrorism’ regime, which criminalizes even nonviolent coordination with designated terrorist organizations,” claiming that the legal framework “has only survived constitutional challenge because of pervasive fearmongering and Islamophobia within our legal system.”
Memo to ACLU: When you don’t have the facts or the law, you pound the table, like Palestine Legal did, and say it isn’t fair. You don’t get to just casually lie and pretend the law is different.
It is sad that the ACLU has sunk to these new lows. The letter also shiftlessly conflates the Israel-Hamas war with the Israeli-Palestinian conflict. To be clear, if you believe that being pro-Palestinian requires being supportive of anti-Semitic genocidal terror, you are not pro-Palestinian, you are supportive of terror. The two are not the same, and it is this kind of lazy obfuscation that provides additional cover for groups like SJP to commit heinous acts of anti-Semitism and then pretend that they were just being ‘pro-Palestinian.’
Free speech on campus is important, but there are limits to what is covered, and school administrations, as well as law enforcement, must be vigilant to enforce those limits. If groups like ACLU cannot do better than blame the victims of anti-Semitism for trying to enforce the laws that protect them, they should simply do nothing at all because silence is better than stupidity.
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Dr. Mark Goldfeder, Esq. is the CEO and Director of the National Jewish Advocacy Center, Inc.
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.