Legal team comes to aid of parent who criticized anti-Semitic comments, got sued

A parent’s criticism of a school teacher’s decision to spout anti-Semitic comments about Israel is protected by the Constitution as well as state law, a top-flight legal team is arguing in defense of the parent in a defamation claim by the teacher.

A report from the American Center and Law and Justice explained the fight is over comments by Michelle Bernstein, a parent in an Illinois school district, about the anti-Semitic claims from the local school theater director.

“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,” the ACLJ explained in its report.

“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.”

The ACLJ said the war erupted after the public employee posted a story on her personal Instagram account “that accused the Israeli military of ‘crimes against humanity’ and ‘ethnic cleansing.'”

In response Bernstein, a parent in the district, learned about the post and commented on social media about what the play director said.

She “shared her opinion that these statements were ‘slandering the IDF and Israel’ and ‘anti-Semitic.’ 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 anti-Semitic, slanderous of Israel, and inappropriate for a public employee who is shaping the young minds of students.”

The case then was brought by Britnee Kenyon, the play official.

“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,” the legal team said.

“Anti-Semitism 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 anti-Semitism on their campuses,” explained the ACLJ.

The teacher brought state-law claims of defamation, false light, and tortious interference with contractual relations and the ACLJ confirmed it is defending Bernstein in federal court.

“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,” the legal team said.

Then, too, 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 anti-Semitism are not actionable because they are inherently subjective and not provably false.”

The lawyers wrote, “This case is an example of such lawfare: A lawsuit is being used as a tactic to try to stifle pro-Israeli speech.”