First Amendment Twist: Federal Judge Awards Local Hate Group $159K in Legal Fees

by P.D. Lesko

Note: Our family belonged to Congregation Beth Israel from 1992-2004. I served on the Board in the early-90s. When the protests by Witness for Peace began, we were members of the synagogue. We joined Temple Beth Emeth (TBE) in 2006. Our sons attended religious school, and their Bar Mitzvahs were held at TBE. In 2017 our family rejoined Beth Israel, and we are presently members. The Ann Arbor group Witness for Peace should not be confused with the non-profit Witness for Peace in Washington, D.C. That non-profit, founded in 1986, works to combat poverty in Latin America.

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A federal judge recently awarded $159,000 in legal fees to a local Ann Arbor protest group that, in 2019, the Anti-Defamation League labelled a hate group. Prior to her Jan. 2022 award of fees, on Aug. 19, 2020 Judge Victoria Roberts dismissed a suit against five Witness for Peace protesters (Gerber v. Herskovitz, et. al.). In her opinion, Judge Roberts wrote, “Indeed, the First Amendment more than protects the expressions by Defendants of what Plaintiffs describe as ‘anti-Israel, anti-Zionist, an [sic] antisemitic.’ 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 McCullen v. Coakley, 2014. The Defendants do nothing that falls outside of the protections of the First Amendment, since ‘a function of free speech under our system of government is to invite dispute’ Terminillo vs. City of Chicago, 1988.”

Canton-based attorney Marc Susselman told The Detroit Jewish News in Apr. 2020 that he “did some legal research, which led him to believe the protesters’ actions were not protected by the First Amendment. On Dec. 19, 2019, after finding a Beth Israel member named Marvin Gerber willing to be a plaintiff,” Susselman filed a complaint against the protesters in the U.S. Eastern District Court. Miriam Brysk, a Holocaust survivor, joined the suit as a plaintiff in Jan. 2020.

In Mar. 2020, the Michigan ACLU filed a brief on behalf of the defendants, arguing that Witness for Peace’s actions are indeed protected under the First Amendment. “The offensive, distressing, and even outrageous nature of their demonstration cannot justify any of the relief the plaintiffs seek here,” the ACLU brief said, citing landmark free-speech cases.

The federal judge’s award of legal fees is the latest twist in this long-running local saga. U.S. District Court Judge Victoria Roberts ruled on Jan. 25 that the two plaintiffs — including one who is a Holocaust survivor — and their lead attorney who had sued a group of five protesters in 2019 had filed a frivolous lawsuit against “peaceful protesters.” Therefore, Roberts ruled, the defendants were entitled to compensation to cover the cost of their legal defense.

Ann Arbor resident Henry Herskovitz is the founder and leader of Witness for Peace. Of the $159,000 award, Herskovitz said in an email, “From receiving [Plaintiff] Marvin Gerber’s letter (November 2019)…we have felt this case frivolous, and are happy the judge agreed.”

The Judge’s opinion (below) states that the Plaintiffs had no standing to sue and could “demonstrate no injury in fact.” In her opinion, Judge Roberts writes that “the Supreme Court repeatedly makes clear that ‘an injury in fact must be both concrete and particularized.'”

Around the same time that the federal judge upheld the First Amendment right of peaceful protest, and awarded Henry Herskovitz, et. al. legal fees in the amount of $159,000, Ann Arbor City Council members, all of whom take an oath to uphold the U.S. Constitution, passed a non-binding (symbolic) resolution that condemned as antisemitic hate speech the protests Herskovitz’s group (Witness for Peace ) has held in front of Congregation Beth Israel for the past 18 years.

The Plaintiffs’ attorney Mark Susselman said the Council’s January 2022 non-binding resolution was “too little, too late,” and had “no legal impact.”

Herskovitz says, “Council is free to issue their own opinions, but in my view they abdicate their responsibility to uphold the Constitution when they condemn open exercise of free speech.”

A spokesman for the Michigan Attorney General, Dana Nessel, said, “Elected Officials in Michigan swear an Oath to uphold the Constitution of the United States and the Constitution of the State of Michigan.” Local elected officials who violate their oath of office can be removed by the Governor. The Michigan Constitution allows any individual to submit a complaint to the Governor concerning a local official or officials who have allegedly violated the oath of office.

Members of Beth Israel have sharply criticized Ann Arbor officials whom they allege fail to enforce a local sign ordinance that would curtail the protesters’ ability to demonstrate in front of the synagogue. Former Mayor John Hieftje told the media in 2013 that, “Without overstepping our bounds on the freedom of speech rights of those who protest, there’s nothing we can do about it legally.” He added, “I think it’ll [the protests will] only stop when the people who are out on the street become sensible and agree to be reasonable about the issue.” 

The Ann Arbor Independent interviewed Henry Herskovitz via email about the protests and the award of $159,000 in legal fees. Herskovitz, 76, began protesting in front of Beth Israel synagogue when he was 58-years-old. The Pittsburgh native is Jewish; he had his Bar Mitzvah in 1959. Prior to protesting, Herskovitz attended services at Beth Israel, but was never a member of the congregation.

Herskovitz says, “In 2003, I came to Rabbi Dobrusin and asked if I could share my slides and stories with members of the Congregation about the two trips I had made to Palestine in 2002. I suggested a Men’s Club meeting or something of the sort. When Dobrusin refused, I gathered some friends and started Jewish Witness for Peace and Friends (JWPF) on September 13, 2003.” According to Herskovitz, there are 17 members of Witness for Peace and “13 people who vigiled [sic] with us at least once….”

A2Indy asked Herskovitz whether the group’s protests were “ineffectual” and whether the group would “achieve more for Palestinians and all Muslims by protesting in front of the headquarters of ADL-identified anti-Muslim hate groups in Michigan, groups such as the Sharia Crime Stoppers or the Thomas More Law Center (in Ann Arbor).”

Herskovitz answered: “I do not agree we are ineffectual.” He based that statement on the fact that some drivers “indicate their approval with their thumbs in an upward position.”

As the protests march into their 18th year, what is clear is that the group’s ever-changing “goals” remain unmet. Indeed, Herskovitz’s comments to the media over the past decade about the group’s “goals” reveal that he has repeatedly moved the finish line in terms of what demands must be met in order to end the protests in front of Beth Israel:

• In 2009, Witness for Peace published a Letter to the Editor in the Ann Arbor News that said, “[We] will end the vigils if Beth Israel satisfies our three previously stated requests or if equivalent goals are achieved through negotiations with Beth Israel: committing to work for the equal rights for the Palestinian citizens of Israel; committing to work for the end of the occupation of the West Bank, Gaza, and East Jerusalem; and committing to work for the right of Palestinians to return to the homes from which they were forcibly removed in what was to become Israel.”
• In 2013, Herkovitz was quoted in the media as saying he’d “agree to stop the protests if the synagogue would take down the Israeli flag inside its sanctuary and go on record promoting full equal rights for Palestinians in the state of Israel.”
• in 2016, Al Jazeera reported, “According to Herskovitz, his withdrawal [from the protests] is contingent on the congregation denouncing the existence of Israel or dissociating itself from that country.” 
• In 2022, Herskovitz told A2Indy that the goals of the protests are “[t]o peacefully dismantle the state of Israel, and to expose how excessive applications of Jewish Power negatively affects interests of the United States.”

Herskovitz isn’t the only flip-flopper. In April 2020, Ann Arbor Mayor Taylor, a lawyer, told the Detroit Jewish News, “he and other government officials don’t have the right to restrict the protesters’ speech.” Taylor added, “The sidewalk is public space, and people in America have a right to occupy public space and to protest on public space,” he said. “They have the right to say wise things and they have the right to say unwise things, things which are admirable and things which are loathsome.” While Taylor’s 2022 City Council resolution condemning the Witness for Peace protests didn’t seek to restrict free speech, the resolution publicly condemned free speech.

When asked, Herskovitz could produce no evidence that the Beth Israel Board members, Rabbi Emeritus or current Rabbi Nadav Caine have ever publicly stated that they or Congregation Beth Israel are opposed to “full and equal rights for Palestinians in the state [sic] of Israel.” In response to a follow-up question from A2Indy, Herskovitz wrote, that in 2007, Beth Israel’s now Rabbi Emeritus Robert Dobrusin published an op-ed in the Ann Arbor News in which he wrote, “… there is one general statement which I can make on behalf of the congregation – Beth Israel Congregation affirms without any hesitation or equivocation the legitimacy of the existence of the State of Israel as a Jewish state….” In 2014, Rabbi Emeritus Dobrusin signed a public letter that called for the formation of a defined border for a Palestinian homeland.

In 2020 Beth Israel’s Rabbi Nadav Caine, and Rabbi Emeritus Robert Dobrusin joined 598 other religious leaders who signed a public letter of protest aimed at the Israeli government that stated a unilateral annexation of the West Bank would “violate human rights” (https://www.reconstructingjudaism.org/news/over-600-jewish-clergy-call-israeli-government-abandon-plans-annexing-west-bank); When the Rabbi of a small congregation in San Diego, Caine spoke publicly in favor of a candidate for public office who is the grandson of one of the Palestinian Munich terrorists who murdered 12 Jewish athletes at the 1972 Olympic Games: (https://www.haaretz.com/us-news/.premium-grandson-of-munich-massacre-terrorist-is-running-for-congress-1.5840690).

When asked about Caine’s public statements, Herskovitz answered via email, “If the rabbis supported our views, they’d be out there on the street with us.” Herskovitz did not answer directly when asked whether his targeting of a single synagogue “suggests your actions are more personal than political?”

According to Herskovitz, he and his group protest only in front of Beth Israel, one of Ann Arbor’s multiple Jewish congregations. When asked why Beth Israel is targeted, Herskovitz said, “As far as protesting elsewhere, we feel the synagogue is the proper place to protest.” When asked why WFP does not protest in front of any other synagogues, or in front of the offices of any other ADL-identified Michigan anti-Muslim groups, including the Thomas Moore Law Center in Ann Arbor, and the Proud Boys, Herskovitz did not answer the question.

In addition, though the protests are, ostensibly, on behalf of Palestinian equality and rights, Herskovitz identified no Palestinian rights groups he supports with either his time or money.

Susselman has said that he and the plaintiffs intend to appeal Judge Roberts’s award of $159,000 in legal fees to the defendants, Herskovitz, et. al. While such awards are reversed on appeal, the reversals are granted infrequently.