Masuku Hate Speech Conviction Reversed On Appeal

Long-time readers of the blog might recall the saga of Bongani Masuku, a top COSATU official who back in 2009 was found to have engaged in hate speech for a variety of statements about Jews and Zionists. Highlights included:

• Referring to Zionists as "belong[ing] to the era of their Friend Hitler"
• Contending that "every Zionist must be made to drink the bitter medicine they are feeding our broathers (sic) and sisters in Palestine," and
• Expressing his view that "Jews are arrogant, not from being told by any Palestinian, but from what I saw myself."

Lest there be any mistake on the audience for his remarks, Masuku expressly said he was seeking to "convey a message to the Jews of [South Africa]."

Anyway, the South African Human Rights Commission found that Masuku had engaged in hate speech, and (eight years later) the Equality Court upheld that ruling in 2017. But earlier this month, the Supreme Court of Appeals (an intermediate court -- don't let the name deceive you) reversed that decision and concluded that Masuku's comments were protected speech.

Commenting on foreign legal decisions is always a fraught exercise -- needless to say, I'm not familiar with the particularities of South African law, procedure, or precedents that are germane to correctly deciding the case. That's compounded by the fact that I oppose hate speech laws on principle -- none of what Masuku said would be actionable in America, and I'm content with that arrangement. That said, in states which have such laws I don't think Jews should be cast out from their blanket of protection -- something that does sometimes seem to happen. There's a big difference between a court generally adopting a narrow view of what hate speech prohibits, and a ticket good for this ride only that says Jews -- and only Jews -- have to suck it up and learn how to grow thicker skins.

In any event, the opinion itself seems generally skeptical about the strictures hate speech laws place on free speech -- again, a position I'm broadly sympathetic to, albeit one whose application to this case I'm poorly positioned to evaluate vis-a-vis other South African hate speech precedents. The tenor of the opinion also gave the distinct impression that the court believed that Masuku had been provoked, and was simply responding emotionally in an emotional context -- a position I'm considerably less sympathetic to.

In the main, though, the appellate court concluded that none of the statements identified as "hate speech" by the lower court were targeted at Jews (as opposed to at Zionists). Hence, they could not be deemed to hatred directed at a protected group (religion or ethnicity).

Way back in 2009, I suggested that this was going to be the core issue of the case and suggested some arguments establishing why it was proper to view Masuku as targeting Jews (I also expressed skepticism that Jews would ultimately win in South African courts, so, hurrah for vindication?). I won't rehash those here, but I am curious about the status of those statements from Masuku which did seem to make evident that he was referring to Jews-qua-Jews, not "just" Zionists. The appellate court alluded to other statements "included in the complaint", but did not identify them -- focusing only on those statements which were ultimately adjudged to have been hate speech.

This seems odd. A statement to the effect that one is "convey[ing] a message to the Jews of [South Africa]" may not be hate speech on its own, but it seems like pretty strong evidence regarding who Masuku is talking to and about elsewhere in his speech. If Masuku said he's sending a message to "the Jews", then believe him!

But -- as per my above caution regarding commenting on foreign legal rulings -- I don't know the status of that statement or others where Masuku seems more explicitly antisemitic. Were they in the record of the case? If not, why not? There might be wholly justifiable legalistic reasons for why they were not considered -- I just am not positioned to know what they are. But the impression, from my knowledge of the facts as an observer, is that the court concluded that Masuku wasn't talking about Jews by scrupulously avoiding mention of all the parts where Masuku is very clearly talking about Jews.

The case may still yet go up to South Africa's highest court (I wouldn't hold my breath for a successful outcome). And if you want a taste of my terrible life -- here is the article which initially alerted me to the ruling. If you want to hear the court opinion defended in the most openly antisemitic way possible, click the link and prepare to be depressed.

On the Tablet Women's March Story

As you've no doubt seen, Tablet published a long investigative piece on the Women's March organization -- covering turmoil in the ranks, weird patterns of money moving around, how the current leadership rose to power and attempted to consolidate its position, and, of course, antisemitism.

Others will no doubt offer more in-depth commentary, but I wanted to give some quick blush reactions to the main themes:

• This was, on the whole, a well-reported and professional piece. It was not a drive-by, and it was not a hit job. Kudos to the authors on that.
• I know the antisemitism portions of the article are the sexiest, but I think some are over-extending from the evidence presented. The claims of explicit, overt antisemitism by WM leaders tended to be thinly sourced -- either relying on inference or on accounts by persons unwilling to go on the record. The claims of implicit or negligent antisemitism -- or simple indifference to the needs and concerns of Jewish stakeholders -- were by contrast very well-supported. The latter, of course, is on its own well-worth criticizing.
• Despite diligent efforts by the authors, it was hard to follow the parts of the article focusing on where money was and wasn't going, or suggestions of improper organizational structures designed to benefit certain insiders. On the whole, the conduct described was the sort where I couldn't really get a bead on how abnormal it was vis-a-vis other like organizations. Were these the sorts of claims you'd could dig up on any decent-sized non-profit if you dug around long enough, or is WM a uniquely bad actor? I couldn't tell.
• The evidence that the Women's March was linked to Nation of Islam personnel for use in their personal security was relatively well-established. This linkage, of course, casts new light on why the Women's March was so markedly reluctant to condemn Farrakhan. And it is also striking given the conversations occurring on the left critiquing increased police presence in, e.g., synagogues, because of how such presence impacts communities targeted by police violence. The same argument, of course, applies to how queer or Jewish persons must feel knowing that Women's March security relies on a group like NoI. Either Women's March leaders thought about that parallel, or they didn't -- and neither option is all that great.
• We already knew about serious tension between Women's March national leadership and regional or "rank-and-file" operatives, and this article definitely provides additional support for those who think that some in the former category are really running the ship ego-first, if you will. It definitely seems that some of the leadership viewed Women's March more as their personal fiefdom and launching pad to greater personal glory than as a grassroots, member-led women's organization that wasn't About Them, per se.

Finally, this wasn't in the article, but the response of the Women's March PR flacks -- offering to send journalists a "fact-check", but only if they wouldn't publish it(!?!), while demanding that journalists take down tweets referencing the Tablet story -- has to be one of the biggest own-goals in crisis management we've seen in contemporary journalism. It is the laughing-stock of journalistic Twitter, and -- to the extent the Tablet story suggests the Women's March organization is in disarray and deeply unprofessional -- has done massive work buttressing that narrative.

The Latest Anti-Vaxx Congressman

Newly elected Tennessee GOP congressman Mark Green is a doctor. He's also dipping his toes into the conspiracy theory that vaccines cause autism.

A soon-to-be congressman from Tennessee told constituents Tuesday he believed vaccines may be causing autism, denying data from the Centers for Disease Control and other institutions disproving such a theory. 

Not only did Republican Mark Green, a Congressman-elect from Clarksville who is also a medical doctor, express hesitation about the CDC's stance on vaccines, Green said he believed the federal health agency has "fraudulently managed" the data. 

His remarks came in response to an audience question at a town hall meeting in Franklin from a woman identifying herself as the parent of a young adult with autism. The woman was concerned about possible cuts to Medicaid funding. 

"Let me say this about autism," Green said. "I have committed to people in my community, up in Montgomery County, to stand on the CDC’s desk and get the real data on vaccines. Because there is some concern that the rise in autism is the result of the preservatives that are in our vaccines.

Anti-vaxx conspiracies are actually tend to cross ideological borders, though the precise vectors are a little different. On the left, the conspiracies generally focus on greedy pharmaceutical companies selling a bogus product (or worse, infecting children so they can sell yet more bogus products). On the right, the tale usually is one of malicious government bureaucrats or sneaky elites -- this, obviously, is the approach that Green takes.

There's something else interesting about this story, though. You'll note that while Green was responding to a question from a woman whose child has autism, her query did not (at least as reported) mention vaccines at all. She was worried about cuts to Medicaid funding.

Needless to say, "cuts to Medicaid funding threaten the health of my child" is not terrain Republican congressmen particularly like to stand on. Green's pivot to vaccines is not just a random grasp at a conspiracy theory. It is a deliberate political move -- an attempt to change the conversation away from Green's own policy positions (which, of course, are brazen efforts to strip health care from vulnerable populations) and onto something else. Don't blame my votes on Medicaid for threatening your child's health -- blame those sneaky, untrustworthy government bureaucrats!

Anti-vaccine politics, in short, are by no means the exclusive redoubt of the right. But at the moment they have a particular tactical benefit for conservative politicians: they are a ready-made narrative, which unfortunately has attraction for a lot of people, that distracts attention from their own unpopular policies and instead diverts attention elsewhere. That it also (in its conservative iteration) helps spread suspicion of "government" and "elites" in the process is a bonus.

Of course, the raw political benefit of relying on anti-vaccine conspiracies has to be balanced against the Republican Party's commitment to truth, the common good, and adherence to basic moral principles over transient political advantage. In other words, expect right-wing Republicans to begin embracing anti-vaccine politics completely and without any hesitation whatsoever.

What Naftali Bennett Teaches Us About "One State" Politics

Batya Ungar-Sargon has a stellar interview with right-wing Israeli politician (and Minister of Diaspora Affairs) Naftali Bennett. I highly recommend you read the whole thing: it is testament to what can be accomplished when an interviewer doesn't shy from the hard questions and doesn't let up until she gets an answer.

Perhaps the most striking revelation Ungar-Sargon manages to extract from Bennett is that his proposed ideal solution to the Israeli/Palestinian conflict is one where many Palestinians are denied full civil rights in perpetuity.

So you’re saying that the security issues, the threat posed by a potential Palestinian state is such that it’s impossible to grant them full civil rights. 

Yeah. And another element is that we just have one tiny home — the land of Israel. They have I believe 200 times the size, the Arab world, the Muslim nation, the Arab nation, has 200 times the size. We don’t have another land. This is our tiny tract of land and I’m not about to sever it or divide Jerusalem, and 90% of Israelis would never do that.

Bennett's proposed solution (leaving aside Gaza) is for Israel to annex "Area C" of the West Bank and grant citizenship to everyone (Israeli or Palestinian) who lives there (Area C encompasses most of the land in the West Bank, and most of the settlements, but not most of the Palestinian population. Basically, it comprises primarily Israeli settlements and empty space, including -- most critically -- the empty space between Palestinian population centers. Areas A and B are not territorially-contiguous with one another, Area C bisects them into many small chunks). In the rest of the West Bank, and for the remaining Palestinians (the majority of them), Bennett proposes limited self-government but not statehood -- in particular, he does not support granting the Palestinian Authority control over immigration or an independent armed force. Israel would remain the ultimate sovereign authority, but most West Bank Palestinians would be barred from citizenship or voting.

As you might recall from the Marc Lamont Hill debacle, much of the controversy over his UN speech was his call for a single state "from the river to the sea." Hill nominally backs such a one state solution only insofar as it promises equal rights and citizenship for all its denizens; there are quite a few reasons to be skeptical about the vitality of those commitments.

But Bennett's proposal is for a one-state solution, from the river to the sea, which does not even purport to provide for equal rights and citizenship. And here we have a problem that I think demands serious attention and reckoning: it cannot be the case that the call for one state from the river-to-the-sea is more controversial if it (however nominally) carries a promise of equal rights compared to calling for a one state solution without even the patina of equality. If Marc Lamont Hill is beyond the pale, then far more so must be Naftali Bennett.

Of course, the hypocrisy argument depends on the relevant forum: nobody considers Naftali Bennett to be a progressive in good standing. But, particularly in Jewish spaces, we have to be honest with ourselves: who gets policed harder, the Hill-type one-staters or the Bennett-types? We might "disagree" with both, but do we ostracize both? Do we say both violate our partnership guidelines? Do we call for firing both from their media perches?

Certainly, for many progressive Jews -- including many progressive Jewish critics of Hill -- the answer is yes, and kudos for that consistency. But for many more mainline Jews, the answer is not yes, and they'd do well to acknowledge how limp their objections to someone like Hill must sound as a result. They can't cry bloody murder ever implicitly inegalitarian overtones in the call for a secular state for all its citizens if our response to its explicitly inegalitarian cousin is a sort of limp "agree-to-disagree" shrug.

There's one more little tidbit about the interview that I think is clarifying in an interesting way. In his effort to duck and dive around the fundamental injustice of his position, Bennett at various points suggests that the refusal to grant Palestinians (outside Area C) Israeli citizenship is no big deal because they could receive Jordanian citizenship instead. A quick look at a map of where Areas A and B are in relation to Jordan provide some suggestion as to why that's not really a useful offer.

But let's suppose Bennett modified his proposal just slightly. Let's say that he proposed to not just give Palestinians in Areas A and B Jordanian citizenship, but outright agreed to cede those territories back to Jordan outright. We can gerrymander the borders so they're territorially-contiguous with Jordan and each other. The result would be that most settlers (and some West Bank Palestinians) are annexed into Israel, with everyone becoming Israeli citizens; while most West Bank Palestinians become Jordanians.

My bare minimum requirement for a just Israel/Palestine solution is "every permanent resident gets full citizenship and voting rights in the state exercising sovereignty over where they reside." A two-state solution satisfies that criteria, as does a single secular river-to-the-sea state.

Some go further and suggest that this minimalist criteria is, more or less, all that matters -- and in particular, that if this criteria is satisfied, that there are no non-racist or ethnosupremacist justifications for caring about the demographic distribution of the new state. This is the claim that "pro-Palestinian" one-staters often level against two-staters -- that they are exhibiting nothing more than illiberal tribalism insofar as they think it is important and preferable that a Palestinian state have a Palestinian majority and Israel retain a Jewish majority. They are ever-so-nonchalant over the fact that their preferred solution would result in a Palestinian majority over the whole territory and state. Oh it does? Well that's democracy for you. Anybody who has a problem with that might as well back apartheid.

But here's the thing: the hypothetical "divide the West Bank between Israel and Jordan" solution would also satisfy this minimal equal-citizenship criteria (putting aside, for the moment, Jordan's decidedly-less-than-fully-democratic character). In that proposal, everyone gets full citizenship in the state that exercises sovereign jurisdiction over its territory. It happens to result in an arrangement where Palestinians are likely not the governing majority anywhere -- but hey, we're not supposed to care about that, right?

In my experience, Is/Pal "one-state" backers divide into two groups:
1) Those who do not purport to care about equal rights;
2) Those who purport to care, but are exceedingly confident that their preferred side will effectively control the politics/demographics of the "one state"

— David Schraub (@schraubd) December 8, 2018

The first group are basically explicit fascists, but the second group are very big on sanctimonious lectures praising formal equality while fighting tooth and nail against any solution where their favored group ISN'T de facto dominant from the river-to-sea .

— David Schraub (@schraubd) December 8, 2018

Wrong, obviously. I think most of those who purport to care only of establishing a basically liberal order between the river-and-the-sea would not be keen on a gerrymandered solution where the West Bank and Gaza are divvied up between Israel and its neighbors, even if all the governing jurisdictions were appropriately liberal in character. Insofar as such a state would result in Palestinians getting citizenship but nowhere being Palestine, would it really count as respecting Palestinian self-determination?

I think they'd say no. And I think they're right to say no! Palestinians qua Palestinians deserve a state -- they deserve a Palestinian state, where they exercise self-determination and they get to determine their own destiny. Rigging the borders so that one can claim formal neutrality but Palestinians happen to be minorities in every state is not actually a desirable option. And if I'm write, what this demonstrates is that pretty much everyone cares about demographics to some extent -- they care about collective liberation, they want to ensure that Jews and/or Palestinians as peoples get to self-determine. When they pretend like they're content with a sort of atomized individualism, where so long as everyone gets the ballot nobody has the right to complain, they're almost certainly counting on the assumption that their preferred class -- Jews, or Palestinians -- will be electorally dominant.

Again, I don't think that caring about the collective self-determination rights of Jews or Palestinians makes you a bad liberal. I think it is wholly compatible with liberalism, so long as you respect the rights of both groups to self-determination and your account of self-determination still provides for adequate protections for any minority groups in the state.

But the reason I'm a committed two-stater is that it's very hard to think of another outcome that simultaneously respects the self-determination rights of Jews and Palestinians while also satisfying the minimum equal citizenship threshold. The "make Palestine Jordanian again" proposal does, I think, a good job illustrating why even supposedly "secular" one-staters haven't fully drunk their own kool-aid.

What Happens When BDS Stops "Singling Out" Israel?

One of the most common arguments against BDS is that it "singles out" Israel for special opprobrium, even in the face of far more risible human rights atrocities being conducted elsewhere. This isn't the only argument against BDS, of course, and it is not bullet-proof, but it certainly has a fair bit of purchase. I, for one, think it has considerable legs -- and I'm not particularly convinced by those who act as if they're utterly baffled by the concept that double-standards can be evidence of prejudice.

But what if BDS stops singling out Israel? What happens if the movement to boycott Israel (or -- perhaps more likely -- certain companies alleged to be implicated in human rights violations in Israel and Palestine) becomes just one element of a larger and more comprehensive human rights program, one that really does target other violators under similar rubrics and with similar measures?

It is often asserted that the BDS agenda is one of singling out and bringing about the downfall of Israel. If one looks at the statements and ambitions of BDS founders, and many of its core activists, that's a warranted assessment. At the same time, many anti-BDS activists have suggested that a goodly chunk of what we might call "casual" BDS supporters don't share these more extreme views. Consequently, one often hears that if these more casual supporters were educated on what BDS was "really" about, they wouldn't support it.

Maybe. But it strikes me as at least as likely that they'd react by (a) supporting only a narrower range of demanded remedies (short of "dismantling the state") and (b) widening the array of offending states and parties for whom they think boycotts, divestments, or sanctions are appropriate.

The fact is that "BDS-style" advocacy has become increasingly popular on the left over the past few years, on many matters that have nothing to do with Israel. Think of calls to divest from fossil fuels or private prisons, or boycott campaigns against companies who advertise on this or that racist Fox program. Such initiatives are utterly ordinary on the left these days, they are part of the normal toolkit of progressive activism which is rarely thought to be controversial. People who have participated in these campaigns will find it strange to hear that, when they apply these same sets of tactics to Israel, that they're suddenly "singling out" a solitary wrongdoer. To the extent they find "What about Morocco? What about Russia? What about Turkey? What about Myanmar?" compelling, their most likely response is to shrug and add Morocco, Russia, Turkey, and Myanmar to their list of countries which should also be subjected to these sorts of tactics.

To be clear: this would represent a shift in BDS' orientation. As radical social movements move more mainstream, they typically moderate in both rhetoric and tactics (much to the consternation of the founding activists). The hard core of BDS does want to assert that there is something fundamentally different about Israel that deserves a relatively unique form of opposition -- they don't want the campaign to be genericized or generalized, in part because the sort of BDS which can be universalized across a wide range of human rights violators is almost certainly more confined that the total ostracization that BDS often demands on Israel (a settlement boycott is feasibly universalizable, an academic boycott much less so). They will fulminate bitterly against the "taming" or "domestication" of BDS; lament how it has been "co-opted" by moderates or sell-outs.

But I tend to think that this is a battle they'll lose (indeed, already the more radical elements of this campaign have already regrouped around "anti-normalization", rather than BDS, as an organizing mantra for more extreme measures of anti-Zionist exclusions). Sooner rather than later we'll see "BDS" actions which are not about Israel at all. If Israel is included in these "BDS" campaigns, it will be only because it falls under a more generic rubric of misconduct -- one country among many.

We're already seeing some evidence of this. To give a few examples:

• AirBnb was criticized for "singling out" Israel when it delisted West Bank settlements from its hosting services. But apparently, the company had already made a similar decision regarding listings in Russian-occupied Crimea; and it announced it would explore similarly delisting properties in Moroccan-occupied Western Sahara. The most likely upshot of the "singled out" protest against AirBnb isn't that it will restore West Bank properties but that it will omit other occupied territories.
• United States Rep.-elect Ilhan Omar (D-MN) made waves a few weeks ago when she announced she supported BDS, flip-flopping on a statement she made a synagogue prior to the election. But a month before she came out favoring BDS against Israel, she had tweeted under the hashtag #BDSSaudi, indicating her support for BDS-style measures against Saudi Arabia for its involvement in atrocities in Yemen and the murder of journalist Jamal Khashoggi.
• Everyone knows of BDS activity targeting Israel on University of California campuses. But it's less common knowledge that UC student governments have also passed resolutions calling on their universities to divest from Turkey. Several groups which had backed BDS against Israel also were vocal in advocating for the Turkey resolution, saying that they stemmed from the same basic moral commitments.
• Twitter CEO Jack Dorsey is being sharply criticized for "tone-deaf" tweets stemming from his bucolic descriptions of a recent trip to Myanmar, which hardly seemed even aware of the genocidal campaign the government is waging against the Rohingya minority.

Now to be sure: for now, these sorts of more "universal" BDS practices are sporadic, haphazard, and less well organized than the Israel-focused campaign. Nonetheless, I think this sort of activism is the way the wind is blowing. Instead of resolutions that specifically single out Israel, we'll see resolutions drafted with general language that is designed to include certain Israeli violations alongside similar practices by other nations. Instead of a campaign to ostracize Israel as the worst-of-the-worst, we'll see Israel portrayed as one of many other human rights violators, treated no worse and no better, with certain BDS actions as part of a range of tactics -- carrots and sticks -- designed to entice it towards improvements.

The bad news, for BDS opponents, is that this makes it harder to cast BDS as the product of single-minded anti-Israel fanaticism. The good news is that -- precisely because its rank-and-file aren't single-minded anti-Israel fanatics, they're more likely to channel BDS energies away from its most uncompromising and extremist ambitions and tactics: less academic boycott, more settlement boycott; less "Jews are European colonizers", more "end the occupation".

This will not be a smooth transition, and it won't be without a fight. The fact that organizations like Human Rights Watch still do often announce initiatives calling for a boycott of Israeli settlements, rather than "settlements", generally, seem like obvious own-goals if the group is trying to portray itself as adopting a universal human rights mission -- the likely explanation, then, is that the particularist Israel-focus continues to be a powerful mobilizing, organizing, and fund-raising tool. Likewise, there will no doubt be some who try to smuggle in a distinctive Israel-focus under the guise of "universal" language, gerrymandering the terms of debate so that Israel is the only country included.

Still, I suspect that five or ten years from now -- assuming no drastic changes in the Israel/Palestine situation -- that descriptive accuracy of the "singles out" complaint will have shrunk considerably. And then ... what? What happens to anti-BDS advocacy when this crucial talking point goes away? I don't think this automatically makes BDS a good strategy -- it depends on the particular targets and the particular context its operating in (again, settlement boycotts are far more justifiable than inside-the-green-line campaigns, much less cultural or academic boycotts).

But the reflexive pointing at the roots of BDS -- for whom "singles out" absolutely is a fair charge -- has blinded much of the Jewish establishment to where BDS is going. And I don't think our community is prepared for that future.