Neuwirth v. Silverstein: Court Grants Anti-SLAPP Motion in Politically Charged Online Dispute

Last week, a California state court dismissed Rachel Neuwirth's libel claim against Washington-state blogger Richard Silverstein and university professor Joel Beinin pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. ยง 425.16). This is a tremendous victory for Silverstein and Beinin, and a great decision in terms of maintaining some breathing space for political debate and academic freedom. For better or worse, the kind of hyperbole and insult-slinging that features in this case goes on in academic and policy circles, especially when it comes to Middle East-related topics like Zionism, terrorism, torture, and neo-conservative "democracy" initiatives. (For other examples in our legal threats database, see Khalaji v. Derakhshan and CAIR v. Whitehead.) While calling someone a "Kahanist swine" might not be a model of reasoned debate, it's important that the courts erect some kind of obstacles to turning every heated dispute or case of hurt feelings into a libel claim.

Neuwirth, a journalist and political commentator who espouses staunchly pro-Israel views, sued the defendants over two allegedly defamatory statements, one made by Silverstein on his blog, Tikun Olam, and the other made by Beinin on a listserv and subsequently re-published by Silverstein. In the first statement, Silverstein called Neuwirth a "Kahanist swine." The term "Kahanist" refers to a form of right-wing, relgious Zionism, one of the central tenets of which is that all Arab Muslims are enemies of Israel. The Israeli Kahane Chai (Kach) party is barred from participating in Israeli elections and listed as a terrorist organization by Israel, the United States, Canada, and the European Union. Neuwirth argued that, by calling her a "Kahanist swine," Silverstein implied that she was a terrorist. The second statement was Beinin's, made on the "Alef" listserv, claiming that Neuwirth had made a death threat to him. Silverstein subsequently re-posted Beinin's statement on his blog.

In granting the motion to strike, the court determined that the anti-SLAPP statute applied because Silverstein and Beinin made their respective statements in a "public forum" and the statements were made in connection with "an issue of public interest."

As it was already abundantly clear in California that a blog is a public forum, Neuwirth tried to get around this by arguing that Silverstein's blog did not qualify because he "controls the content." The court rejected this argument out-of-hand, indicating that control over indivual blogs and websites is part of the nature of the Internet, and that those with opposing views can create competing sites and publish articles or letters through the same medium.

The court found that the postings related to an issue of public interest because they were part of a larger debate about the Israeli-Palestinian conflict. Not surprisingly, the court indicated that this conflict "is a concern to a substantial number of people and is more than a mere curiosity." The court also found that Silverstein and Beinin's statements had sufficient nexus with the public issue "because they characterize the views of an outspoken opponent," who was a "limited purpose public figure." Neuwirth became a public figure, according to the court, by voluntarily seeking to "influence the debate on the Israeli-Palestinian conflict by writing articles and commentaries."

The burden then shifted to Neuwirth to establish a probability of success on the merits of her claim. The court found that Neuwirth had not carried this burden for a number of reasons.

First, as a limited purpose public figure, Neuwirth was required to come forward with clear and convincing evidence of "actual malice" (knowledge or reckless disregard for the falsity of the statements), and she failed to do so.

Second, the court viewed Silverstein's "Kahanist swine" statement as a non-actionable statement of opinion, finding that, under a "totality of the circumstances test," no reasonable person would read the statement as asserting that Neuwirth was really a terrorist (or a pig, for that matter). Important to this finding was the fact that the statement was made as part of an ongoing political debate about a highly contentious issue:

The publication as a whole was intended by Silverstein to communicate his opinions regarding attacks that were made on him by individuals and on websites that disagree with his opinions on the Israeli-Palestinian conflict. It is clear that Silverstein often criticizes certain individuals, and he is criticized by them. In this context, the reader of the blog will construe the 'Kahanist swine' comment as Silvertein's opinion regarding Plaintiff's beliefs, and not a factual statement that she is in fact a Kahanist or a 'swine.'

Third, the court indicated that Silverstein could rely on truth as a defense because, despite submitting a declaration in opposition to the anti-SLAPP motion, Neuwirth had not actually denied being a Kahanist nor submitted any evidence to show that the statement was false.

Finally, the court held that Neuwirth's claim against Silverstein for re-publishing Beinin's statement was barred by CDA 230, which protects providers of interactive computer services from tort liability for publishing the statements or content of third parties.

The court awarded Beinin $1,840 in attorney's fees and indicated that Silverstein should make his claim for attorney's fees in a separate motion. Neuwirth's attorney announced her intent to appeal the ruling.

(NOTE: Joel Beinin is the Director of Middle East Studies at the American University in Cairo, where the author of this post attended graduate school.)

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Comments

Thanks for writing up our case

Sam: Thanks for writing up this case & featuring it here. You did an excellent job of capturing the salient legal issues & even quoted fr. a portion of the judge's opinion I'd somehow missed when I read it myself.

Just as background, while I concede that my statement against Neuwirth was not the most refined, it should be put into the context of some pretty horrific vilification that preceded that statement. Neuwirth & many of her right-wing allies are especially known for calling Jewish peace activists "Kapos" (Jewish collaborators with the Nazis) which is the Jewish equivalent of the "N word."

Her allies have wished cancer on me, wished that I be raped by an Arab, threatening me with physical mutilation. Since the case was dismissed I've discovered that she also suggested to a woman that she kill her husband because he was an opponent of the Israeli Occupation.

We included some of this material in our filing & I think it allowed the judge to put my statement in a broader context.

This is completely wrong

Sam wrote: "The term 'Kahanist' refers to a form of right-wing, relgious Zionism, one of the central tenets of which is that all Arab Muslims are enemies of Israel."

No it doesn't. That is totally misleading.

The term "Kahanist" refers to a movement advocating the violent overthrow of Israeli democracy, murder of Jewish opponents and terrorist attacks against Arabs.

Baruch Goldstein and Yigal Amir were Kahanists. Rachel Neuwirth is not. Richard Silverstein had not the slightest factual basis for calling her a Kahanist. It was blatant dishonesty, nothing else.

Re: This is completely wrong

First, let me say that I'm no expert on the history of Kahanism or the beliefs of Kahanists. That's not really the point of this blog in general or this post in particular. In any event, I'm not sure that our definitions are mutually exclusive. See this Wikipedia article for my characterization, which alo contains elements of your characterization. After all, advocating terrorist attacks against Arabs and believing them to be enemies seems pretty consistent. You're technically right that Kahanists believe (or believed, I'm not sure how relevant this all is nowadays) that Arabs are enemies of the Kahanists' own hypothetical version of the Jewish state, rather than the current incarnation of Israel (which, as you say, they advocate(d) the violent overthrow of).

The more important point is that it would be wrong for a court to impose liability on Silverstein for using the term "Kahanist" in a figurative sense to criticize Neuwirth's intellectual and political views. As the court rightly concluded, no reasonable person reading his statement would actually believe that he was accusing Neuwirth of being a part of the Kahanist movement -- rather, he was making a critical point about the flavor of her arguments. The First Amendment protects this kind of speech.

Re: This is completely wrong

With respect I do wonder what's happening to research standards when people go to Wikipedia for information relevant to discussion of a legal case.

Labeling a Jew as a Kahanist is like labeling a Muslim as a bin Ladenist. Both have specific meanings, i.e., support for illegal terrorist organizations preaching religious hate, holy war and the destruction of democracy. Nobody pretends that Silverstein had any factual basis saying that about Neuwirth.

A reasonable person reading Silverstein's statement and knowing nothing about Neuwirth certainly would assume she was a Kahanist. As a result she could have been added to a government watch list, questioned by the FBI or banned from entering Israel. The statement was undoubtedly malicious.

Read Neuwirth's website

Here are a few samplings from memory of the things she proclaims in her website (have you read through it btw? if not, you really must, it's quite entertaining):

1. Israelis who support peace with Arabs should be tried in "Nuremberg-like tribunals" for crimes against the Jewish people. All their assets should be seized by the State.

2. Israeli Arabs and Palestinians should be resettled (viz. expelled) in Saudi Arabia. She neglects to say what should happen if they don't find this an offer too good to pass up.

3. Jews who support peace like Rabbi Chaim Seidler Feller are "kapos," that is Jews who aided and abetted the Nazis.

I think I'll let a reasonable reader be the judge of whether this qualifies as "Kahanist" or not. If I wanted to I could go back to her site & provide more relevant citations, but the idea of doing so makes me cringe.

As for Wikipedia, Sam was using it for a proper definition of "Kahanist," for which it is entirely adequate as a resource.

Kahanist Quibbles

The term "Kahanist" refers to a movement advocating the violent overthrow of Israeli democracy, murder of Jewish opponents and terrorist attacks against Arabs.

That's not quite true. Kahane's political party actually participated in the Knesset until it was expelled. I find it hard to believe a political movement seeking to overthrow its nation's government would participate in its democratic system. As for murdering Jewish opponents, I'm not aware of any Jews murdered by Kahanists though certainly their rants espouse deep hatred of Jewish opponents. Which reminds me of precisely the lang. Neuwirth used in attacking Rabbi Chaim Seidler Feller...calling him a "kapo") & of the death threat she phoned to Prof. Joel Beinin reported to the Stanford Police Dept.