ACLJ Defends Parent Sued for Defamation Over Criticism of Public School Teacher’s Anti-Israel Speech

The ACLJ is standing against antisemitism in all its forms across the country and around the world. We now are representing a parent in support of her right to criticize antisemitic posts by a public school teacher, Britnee Kenyon, who filed a defamation lawsuit against our client for calling out her speech as antisemitic. We are now defending this parent in federal court.

This case is not only important for defending free speech and stopping anti-Israel lawfare, but also for defending the right of parents to advocate for appropriate action in their local schools.

Antisemitism is on the rise around the world. The problem is everywhere, from attacks on Jews in Amsterdam, where a mob attacked Jews with knives and bats, chasing them and shouting anti-Israel slogans, to college campuses that “overwhelmingly failed” to address antisemitism on their campuses.

In the face of these attacks, it is crucial to safeguard the fundamental liberties enshrined in the First Amendment that shield ordinary citizens, activists, and journalists from the chilling effects of Strategic Lawsuits Against Public Participation, known as SLAPP suits. We must preserve the marketplace of ideas, ensuring that public discourse is not hijacked by those seeking to punish anyone who calls out antisemitic speech.

A public employee, a theater director at a high school in Illinois, posted a story on her personal Instagram account that accused the Israeli military of “crimes against humanity” and “ethnic cleansing.” Our client Michelle Bernstein, a parent of students in the school, learned about the post, made several social media comments that highlighted what this theater director said, and shared her opinion that these statements were “slandering the IDF and Israel” and “antisemitic.” In other words, Bernstein learned about this teacher’s post, which was circulating the social media of the high school community and was disseminated to many students, and viewed the teacher’s statements to be antisemitic, slanderous of Israel, and inappropriate for a public employee who is shaping the young minds of students. Accordingly, she called the teacher out on social media, expressing her opinion and exposing the public school teacher’s disturbing comments.

In response, the teacher filed a lawsuit against Bernstein, bringing state-law claims of defamation, false light, and tortious interference with contractual relations. We are now defending Bernstein in federal court, where we will be standing for her right to speak and to criticize what she views as antisemitism.

Our client’s case is straightforward. First, our client is protected by the Illinois Citizen Participation Act (ICPA), which immunizes a citizen’s acts in furtherance of the constitutional rights of speech, petition, and participation in government. Bernstein’s statements on social media criticizing this post and urging the community to contact the school board fall squarely within the ICPA’s protections. Further, Bernstein’s statements were opinions, not statements of fact, and thus cannot be the basis for defamation liability under Illinois law.

Moreover, even if the ICPA did not apply, the First Amendment bars Kenyon’s claims. Bernstein’s speech, which constitutes an opinion, is protected. The First Amendment prohibits liability for such expressions of opinion, even if they are “harsh, critical, or even abusive.” Courts have routinely held that accusations of racism, fascism, or antisemitism are not actionable because they are inherently subjective and not provably false.

Moreover, Kenyon, as a public figure commenting on a matter of public concern, must prove Bernstein acted with actual malice. Her complaint fails to allege any facts supporting such a high standard of fault.

This case highlights the clash between the First Amendment’s protection of free speech, especially on matters of public concern, and tort law claims that can chill such speech. As defenders of the First Amendment, the ACLJ has long fought against attempts to silence free speech through meritless lawsuits.  The case against our client is an example of the pernicious threat to the robust public discourse that is the lifeblood of a free society.

Our Founders recognized the paramount importance of free speech and a free press when they enshrined those liberties in the First Amendment. They understood that unfettered debate on public issues is essential for self-governance and that the free exchange of ideas is the best antidote to the darkness of censorship and tyranny.

Yet today we see troubling efforts to undermine these fundamental freedoms. Powerful interests, whether in government, business, or elsewhere, are increasingly turning to the courts in a cynical attempt to punish, bankrupt, and silence those who support Israel. By filing meritless lawsuits, they seek to exploit the time and expense of litigation to censor opposing viewpoints. This “lawfare” tactic is a direct assault on the First Amendment. Instead of engaging in the arena of public debate, these bad actors weaponize the legal system to intimidate and oppress those who dare to challenge the status quo.

This case is an example of such lawfare: A lawsuit is being used as a tactic to try to stifle pro-Israeli speech. Our client didn’t have the resources to hire a lawyer to represent her. With your support, we are able to stand in the gap on her behalf and defend her First Amendment rights.

UPDATE 11.18.2024: Today, we filed our Motion to Dismiss. That motion urges the court to dismiss the case in light of the First Amendment rights at stake and to recognize Bernstein’s constitutional right to express an opinion in support of Israel. As a matter of law, statements of opinion are simply not actionable for defamation. It is this principle at stake: Bernstein is being sued because she shared Kenyon’s social media post and gave her opinion about Kenyon’s views. She has a right to do so.