by Mark Susselman, J.D., M.P.H.

I am writing this in honor of Dr. Miriam Brysk, who passed away on May 28, 2022, at the age of 87. Miriam was born in Warsaw in 1935. When the Nazis invaded Poland, she and her family escaped to the Lida ghetto in Belarus, where Miriam, at the age of 7, witnessed the execution of Lida’s Jews on May 8, 1942.  Miriam’s family was spared because her father was a physician, and the Nazis conscripted her father into treating wounded Nazi soldiers. In November, 1942, Jews in the Russian partisans rescued Miriam’s family from the ghetto and brought them to the nearby Lipiczany forest, where the Russian partisans were hiding from the Nazis and conducting raids on the Nazi forces. Her father established a surgical hospital in the forest to treat Jewish and Russian partisans alike. Miriam’s head was shaved, she wore a boy’s clothing and was given a pistol to protect herself from being raped.

After the war, her family emigrated to the United States in February 1947, as she turned 12-years-old. She came to America with no knowledge of English or previous schooling and had a lot of catching up to do. She finished high school at 17 years of age, obtained a Bachelor of Science in biology and chemistry from N.Y.U., a Master of Science from the University of Michigan in Microbiology, and then a Ph.D. in Biological and Biomedical Sciences from Columbia University. 

I had the honor of representing Miriam, in conjunction with Marvin Gerber, in a lawsuit filed in the United States District Court in Detroit, seeking to obtain an injunction to curtail the weekly protests of anti-Semitic protesters who have been plaguing Beth Israel every Shabbat morning for now 18 years.  As a Holocaust survivor, who had witnessed the depredations caused by the Nazis, fueled by their anti-Semitism, and a fervent supporter of Israel, Miriam was incensed at seeing the anti-Semitic and anti-Israel signs in front of Beth Israel whenever she attended services at Pardes Hannah, signs bearing such messages as “Jewish Power Corrupts”; “Resist Jewish Power”; “No More Holocaust Movies”; “Boycott Israel”; and “Stop U.S. Aid To Israel.” 

At the end of the affidavit which Miriam signed and which was filed with the federal court in support of the lawsuit, Miriam wrote: “The protesters try to compare Israel to Nazi Germany, but they do not know what they are talking about. I have visited Israel many times.  As a Holocaust survivor, as a person who saw with my own eyes what the Nazis did, for the protesters to compare Israel with Nazi Germany sickens and angers me.  They were not there.  I was.”

In the lawsuit which I filed on behalf of Miriam and Mr. Gerber, we were seeking, first and foremost, a limited injunction to place reasonable time, place and manner distance and temporal restrictions on the protesters’ conduct, a form of relief which is frequently granted in numerous lawsuits, including lawsuits involving protests at abortion clinics. Were not a synagogue and its congregants entitled to the same degree of protection of their constitutional right of freedom of worship, not to be harassed and stalked, as women asserting their, then, constitutional right to obtain an abortion?

To my deepest disappointment and consternation, we lost the lawsuit. 

Judge Victoria Roberts dismissed the case, ruling that the emotional distress which Miriam and Mr. Gerber indicated they experienced upon seeing the signs in front of the synagogue, did not constitute a “concrete” injury sufficient to afford them “standing” to sue in the context of the First Amendment right of free speech. On appeal, the Sixth Circuit Court of Appeals, in a 2-1 decision, reversed Judge Roberts’ ruling, stating, “[T]he congregants have standing to sue because they have credibly pleaded an injury – extreme emotional distress – that has stamped a plaintiff’s ticket into court for centuries.”

The Court went further, however, and addressed an issue which was not legitimately addressed by Judge Roberts, an issue which she was precluded from addressing once she ruled that the plaintiffs did not have standing, because in the absence of standing she did not have jurisdiction to address the merits of the free speech issue. Notwithstanding, the 6^th Circuit held that the protesters’ right of free speech precluded granting the injunctive relief which the plaintiffs were seeking, stating that because the protesters were engaging in speech which addressed matters of public concern – the Israeli-Palestinian conflict – and were doing so in a traditional public forum – a street in a residential area in front of the synagogue – the use of the signs was absolutely protected by the 1^st Amendment. Thus, any injunction which placed reasonable time, place and manner limitations on their conduct would violate their freedom of speech. 

In the subsequent petition for certiorari which I filed in the Supreme Court, I argued that the signs which display anti-Semitic hate speech do not relate to matters of public concern, and the fact that they were commingled with signs which addressed matters of public concern did not clothe the hate speech with the mantle of 1^st Amendment protection. I argued that this was not just true of a Jewish house of worship. It was true of the houses of worship of every religion – hate speech in proximity to any house of worship, be it a Protestant or Catholic church, a predominantly African-American church, a Moslem mosque, or a Hindu or Sikh temple, does not constitute protected free speech, and such speech can be curtailed to protect the right of worship, just as the speech of anti-abortion protesters – even without the presence of what is legally referred to as “state action” – can be curtailed to protect what, prior to this year, was a constitutional right of women.

The Supreme Court denied the petition, which would have required the vote of  4 of the 9 Justices to grant. The vote was is confidential and unavailable to the litigants or their attorneys. But the fact that the Supreme Court denied certiorari does not mean that the Court agreed with the 6^th Circuit’s decision. As the Supreme Court has stated in several decisions, denial of a petition for certiorari means nothing more than that it failed to garner four votes. It does not constitute an affirmance of the lower court’s decision.

I am now faced with an even more serious issue than whether the protesters’ anti-Semitic hate speech in proximity to a synagogue is protected by the First Amendment. And that issue is the distinct appearance of anti-Semitism in the rulings of a federal judge. 

While the petition for certiorari was pending in the Supreme Court, the protesters filed a motion before Judge Roberts requesting that she award attorney fees to their attorneys. Such a request, in the context of the kind of civil rights litigation which this lawsuit represented, is rarely granted to defendants. The policy, which has been expressed in numerous Supreme Court and 6^th Circuit decisions, is to encourage attorneys to take such cases in order to vindicate citizens’ constitutional and statutory rights, even where the facts present new and unique circumstances. Awarding attorney fees to defendants who prevail in such lawsuits would discourage citizens and attorneys from litigating such cases, to the detriment of the policy. Therefore, in order to discourage awarding attorney fees to defendants, the Supreme Court has held in several decisions that the defendants must demonstrate that the lawsuit was “frivolous,” and totally without merit. In this case, however, the 6^th Circuit, in its 2-1 decision, explicitly stated: “Plaintiffs’ claims may be wrong and ultimately unsuccessful, but the fourteen pages that the concurrence devotes to analyzing the constitutional issues belie the conclusion that they are frivolous.”

Yet, in the face of the Supreme Court’s precedents discouraging the award of attorney fees to prevailing defendants, and in the face of the 6^th Circuit majority’s express statement that the lawsuit was not frivolous, on January 25, 2022, Judge Roberts issued her decision, stating that the lawsuit was “frivolous” and awarding attorney fees to the protesters in the amount of $158,721.75, to be paid “jointly and severally” by myself, Miriam Brysk and Mr. Gerber, which means that the protesters are entitled to obtain the complete amount from any one of us.

I have filed an appeal of this outrageous decision, and have filed my appellate brief, in which I state the following:

“[W]hile the principle that the 1^st Amendment affords protection even to ‘the thought that we hate,’ Girouard v. United States, 328 U.S. 61, 68 (1946), quoting from United States v. Schwimmer, 279 U.S. 644, 655 (1929) (J. Holmes, dissenting), entails that we must tolerate hate speech, it does not entail that we must reward and champion hate speech by requiring that its purveyors’ attorney fees be paid by those who seek to limit – not entirely expunge, but limit – the contexts in which it may be purveyed, by requiring that an 87 year-old Holocaust survivor compensate a group of neo-Nazi anti-Semites their attorney fees.  And given the centuries of Antisemitism in which the use of such hate speech – speech claiming that ‘Jewish Power Corrupts’ and demanding ‘No More Holocaust Movies,’ because we have heard enough of Jewish whining – has resulted in the torture and murder of millions of Jews, to hold that plaintiffs’ legal claims filed in court in an effort to limit the use of such hate speech in proximity to their house of worship as they enter their sanctuary in order to exercise their freedom of religion, were ‘frivolous’ is a reprehensible affront and defilement of the Jewish people, and has the appearance of being anti-Semitic in light of the court’s disregard of the Supreme Court precedents cited above, and its contradiction of the majority’s holding that the claims were not frivolous.”

This is an issue that may not be avoided, minimized, or swept under the carpet. 

Judge Roberts’ decisions, beginning with her ruling that the plaintiffs’ emotional distress was not sufficiently concrete to afford them standing to sue, and ending with her legally unsustainable award of attorney fees to the protesters, and several other rulings in between which are too detailed to describe in this limited space, have the distinct appearance of being anti-Semitic. This is not an issue about which Jewish Americans can afford to be complacent. History has shown that complacency in the face of anti-Semitism–particularly when it seeps its way into the judicial system–results in dire consequences for Jews. 

I have no regrets for having filed the lawsuit against the protesters, notwithstanding the outcome.  If I had to do it over, I would do so. I continue to believe that the 6^th Circuit’s decision was erroneous, that hate speech expressed in proximity to the house of worship of any religion is not impregnably protected by the 1^st Amendment.  My only regret is that I did not find more support for the lawsuit in the Jewish community, that only two Jews, Miriam Brysk and Marvin Gerber, had the fortitude, the self-respect, and the demand for dignity to stand up and be counted. American Jews are always ready to stand up for the rights of others. It is about time that Jewish Americans start standing up for their own rights.

The specter of a federal judge making rulings motivated by a racial, ethnic or religious bias cannot be tolerated; it must be called out and sanctioned. I maintain, and have made this argument in my appellate brief, that Judge Roberts’ rulings, taken together in their entirety, have the distinct appearance of being anti-Semitic and violate the United States Code of Judicial Conduct. I fully intend to make this argument at the oral argument, yet to be scheduled, in Miriam’s memory; in the memory of the Nazi atrocities she witnessed, and to state, forthrightly and firmly, “J’Accuse.”