Plaintiffs take issue with judges dismissal of Ann Arbor synagogue protest lawsuit

ANN ARBOR, MI Disagreeing with a federal judges ruling in a lawsuit over anti-Israel protests outside an Ann Arbor synagogue, the plaintiffs are seeking reconsideration.

Marc Susselman, lead counsel to the plaintiffs, called the judges dismissal of the case this week a minor setback.

The court did not rule on the merits of the case or address any of the First Amendment issues, he argued. This was a technical ruling on the matter of whether the plaintiffs have standing to sue. The plaintiffs clearly have standing based on the emotional distress caused by the presence of anti-Semitic signs outside their place of worship.

Additionally, the fact that the plaintiffs allege the protesters violated several federal statutes also gives them standing to sue, Susselman maintained.

In an 11-page order Wednesday, Aug. 19, U.S. District Judge Victoria Roberts said the First Amendment more than protects the expressions by defendants.

Peaceful protest speech such as this on sidewalks and streets is entitled to the highest level of constitutional protection, even if it disturbs, is offensive, and causes emotional distress, the judge wrote.

The judge also found the plaintiffs failed to assert a concrete injury and lacked standing to sue.

The lawsuit was filed last year by Marvin Gerber, a member of the Beth Israel Congregation at 2000 Washtenaw Ave., where Henry Herskovitz and his anti-Israel protest group have demonstrated on Saturday mornings for more than 16 years.

Miriam Brysk, identified in court records as a Holocaust survivor and member of the Pardes Hannah Congregation located in an annex next to the synagogue, joined as a co-plaintiff.

Bitter conflict breeds unlikely friendships in Ann Arbor synagogue protests

Gerbers attorney argued in court filings the protests amount to hateful, anti-Semitic speech and the lawsuit named as defendants both the protesters and city officials for allowing the demonstrations to continue without restrictions.

Protest signs have carried messages such as Resist Jewish Power, Jewish Power Corrupts, No More Holocaust Movies, Boycott Israel, Stop U.S. Aid to Israel and End the Palestinian holocaust.

Ziporah Reich, litigation director at the The Lawfare Project and co-counsel to the plaintiffs, said the judges decision this week is contrary to federal case law and precedent.

In granting the defendants motions to dismiss, the court is effectively saying that the emotional distress experienced by Jews, in reaction to the anti-Semitic slurs hurled at them every week for 16 years in front of their house of worship, is insufficient injury to grant them access to federal court, she said. We will be filing a motion for reconsideration and, if it is denied, we will file an appeal with the 6th Circuit Court of Appeals.

Roberts discussed in detail the actions of the protesters in her 11-page order.

They do nothing that falls outside the protections of the First Amendment, since a function of free speech under our system of government is to invite dispute, the judge wrote, citing the 1949 case of Terminiello v. City of Chicago.

In public debate, we must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment, " the judge added, citing the 1988 case of Boos v. Barry.

If the plaintiffs motion for reconsideration is not granted, Reich said shes confident theyll find justice in the Court of Appeals.

Were prepared to take this as far as necessary to enforce the rights of the Jewish community, she said.