Case Explained: How Support for Palestine Became a Hate Crime – Legal Perspective

Such decisions are influenced by a well-funded ecosystem of Israel advocacy groups that amplify alleged antisemitic incidents in the media and appeal to institutions to punish the accused. “The immediate, default media framing is to give credence to the allegation that speech critical of Israel or critical of Zionism is antisemitism,” said Lara Friedman, president of the Foundation for Middle East Peace. “This has everybody on the defensive. Nobody wants to be accused of supporting or enabling antisemitism.” DA offices have received significant pressure from local pro-Israel groups to apply hate crime charges to protest-related incidents—and police and prosecutors have expended significant resources on such cases, even when they involve relatively minor allegations.

Despite this, DAs have had trouble actually securing hate crimes convictions: Judges and grand juries have mostly tossed out charges, or juries have voted to acquit defendants. But by that point, those facing charges have already been significantly impacted. They have been identified as perpetrators of hate across multiple media sources—including, at times, in official DA or Department of Justice press releases—and have lost jobs, been suspended from school, or used significant resources to pay bail or legal fees. “Part of the lawfare repression strategy is that the legal process itself is the punishment,” said Jackson. “A criminal defendant who’s totally innocent can still be dragged through a terrifying, miserable process that can ruin their life.”

To be sure, hate crime charges since October 7th have not been reserved for pro-Palestine protesters. A Chicago man who stabbed a six-year-old Palestinian American boy the week after the Hamas-led attacks was convicted of murder as a hate crime in February. And, as in the past, defendants continue to be charged with clearly antisemitic hate crimes unrelated to Palestine, like sending Nazi-coded threats to Jewish clergy or attacking congregants outside of synagogues. But the ease with which the laws have been mobilized to menace those associated with a popular anti-war movement raises questions about the value of hate crime statutes as a tool for justice.

Indeed, progressive critics have warned for decades that such statutes were at least as likely to be used against marginalized people as to protect them. This did not deter diverse coalitions of activists from enshrining criminal penalties for hate crimes in state law across the country—a push led by the Anti-Defamation League (ADL), which is responsible for drafting model hate crimes legislation that has been widely adopted. Though the organization originally pursued this work separately from its Israel advocacy, the statutes have now become useful in its current project of repressing anti-Zionism. As the right increasingly cloaks its racist, authoritarian aims in anti-discrimination discourse—claiming that the dismantling of the liberal university and even the deportation of immigrants is necessary for the safety of a Jewish minority—it is becoming clear that the laws are an effective tool with which to throttle the left. “There is a concerted movement to criminalize activism for Palestinian rights, and in that context hate crime charges are often a way of intensifying and escalating punishment,” said Shirin Sinnar, a law professor at Stanford University who has extensively studied hate crimes. With the Trump administration pledging in February to pursue more federal hate crime charges against pro-Palestine activists, and more states adopting a definition of antisemitism that equates anti-Zionism with anti-Jewish animus, these recent prosecutions may mark the beginning of a chilling new legal paradigm.

In 1981, in response to a documented rise in anti-Jewish vandalism, the ADL drafted a model statute for what would come to be called hate crimes legislation. The law, designed for adoption in state legislatures, specified that perpetrators who targeted victims for “personal characteristics” like race, religion, or national origin, or who went after religious institutions or community centers, would face more serious charges and harsher penalties, in recognition of the way these crimes intimidated a broader community. While the issue of hate crimes would eventually became associated with shocking murders and brutal assaults—like the 1998 killing of Matthew Shephard, a gay man, in Laramie, Wyoming—the ADL’s initial goal was to draw attention to more modest incidents, like swastika graffiti or the desecration of Jewish tombstones, according to the scholar Clara Lewis, author of Tough on Hate? The Cultural Politics of Hate Crimes. “None of the more serious crimes were in there,” David Raim, the ADL lawyer who drafted the model legislation, told Lewis. “The thought was those activities were punished enough by the law as is. This was trying to make low-level offenses, misdemeanors, into felonies.”

The ADL’s campaign against antisemitic vandalism emerged at a time when other communities were also seeking policy remedies for pervasive attacks and harassment, as the scholar Emmaia Gelman writes in the forthcoming book The Anti-Defamation League and the Racial State. Throughout the 1980s and ’90s, amid threats from increasingly organized white power groups, organizations like the NAACP, the National Gay and Lesbian Task Force, and the National Asian Pacific American Legal Consortium joined the hate crime legislation movement. (By the mid-’90s, the coalition added sexual orientation and gender to the list of protected characteristics they hoped to enshrine in the statutes.) But the ADL remained the driving force, organizing the coalition and setting its top-line agenda. The effort quickly saw enormous success: By 1990, 23 states added hate crime statutes; today, all but two states have adopted them. The coalition also succeeded in passing significant legislation at the federal level, like the 2009 Matthew Shephard and James Byrd, Jr., Act, which allows the federal government to step in and prosecute an offense as a hate crime in any state.

The success of hate crimes legislation was especially striking in an era defined by right-wing backlash to social movements, and reflected the laws’ contradictory character. As legal scholar Terry Maroney wrote in a 1998 article, the hate crimes strategy relied on a fusion of two traditionally opposed political tendencies: the civil rights movement, which sought to expand the legal rights of minorities, and the crime victims’ advocacy movement, a conservative effort that sought to restrict the rights of defendants in court for the sake of victims—itself a reaction against expanded due process protections from the civil rights movement. “[Hate crime laws] allowed politicians to simultaneously appear tough on crime and pro-civil rights,” said Sinnar.