Court Throws Out Emotional Distress Lawsuit Brought by Jewish Student Over UNLV Anti-Israel Protests

From Gerwaski v. Nevada ex rel. Bd. of Regents, decided Monday by Chief Judge Andrew Gordon (D. Nev.):

Plaintiff Corey Gerwaski sues the University of Nevada, Las Vegas (UNLV), its president, and several advocacy organizations. Gerwaski alleges that demonstrations on the UNLV campus caused him mental anguish, violated his constitutional rights, and caused him to lose his job at the UNLV library. Gerwaski also sues AJP Educational Foundation, doing business as American Muslims for Palestine (AMP), and the UNLV chapter of Students for Justice in Palestine (SJP-UNLV) for aiding and abetting terrorism and for intentional infliction of emotional distress (IIED)….

AMP is a nonprofit organization incorporated in California and headquartered in Virginia. It is "dedicated to advancing the movement for justice in Palestine by educating the American public about Palestine and its rich cultural, historical and religious heritage through grassroots mobilization and advocacy."

Gerwaski alleges that AMP controls the National Students for Justice in Palestine (NSJP) group, of which SJP-UNLV is an affiliate. He further claims that AMP uses NSJP "to operate a propaganda machine for Hamas and its affiliates across American college campuses to influence, wreak havoc and intimidate Jewish students on university campuses across the Nation." According to Gerwaski, NSJP supports Hamas, justifies Hamas's terroristic activities through its rhetoric and messaging, and perceives itself as a part of the group. Hamas, in turn, allegedly welcomes support from NSJP and its affiliates and encourages them to be "part of this battle" in the United States.

The day after Hamas's October 7, 2023 terrorist attack in Israel, NSJP released a "Day of Resistance Toolkit" to students on American campuses and on the internet. The toolkit contained instructions and templates for users to create online announcements to organize protests. Some of the slogans in this toolkit mirror the messaging used by Hamas.

After this toolkit came out, SJP-UNLV organized several protests both on and off the UNLV campus, called for an economic boycott at UNLV, and called for UNLV to divest from investment in Israeli companies. At one of the demonstrations organized by SJP-UNLV, protestors chanted "[f]rom the river to the sea, Palestine will be free" and "[l]ong live the intifada." Gerwaski alleges that these chants call for eliminating the country of Israel and express support for terrorist campaigns.

Gerwaski is a Jewish student at UNLV who wears the Jewish skullcap, or kippah, at all times. Gerwaski serves in the UNLV student government and briefly worked at the UNLV Lied Library. He alleges that he has been exposed to verbal assaults by members of Nevada Palestine Liberation, another nonstudent group, who made hateful, antisemitic comments to him. Gerwaski has elected to cover his kippah with a baseball cap or other head covering due to the antisemitic chants and chaos on the UNLV campus. Due to the conditions on UNLV's campus, Gerwaski suffered "severe and extreme emotional distress manifested as great humiliation, embarrassment, shame, and other pain and suffering."

The court rejected the claim against AMP on the grounds that courts in Nevada lacked personal jurisdiction over AMP, and concluded that Gerwaski lacked standing to assert the Antiterrorism Act claims. It also rejected the IIED claims on the merits:

Gerwaski has not plausibly alleged conduct that was extreme and outrageous by either defendant. He points to a single social media post from SJP-UNLV that states "Zionist presence on our campus cannot go unchecked," which encourages support for Palestine by attending a counter-demonstration. He also alleges that the organizations encourage antisemitic vitriol by "globalizing the intifada."

Although Gerwaski may not like these messages, they do not rise to the level of extreme and outrageous behavior. Further, neither of these messages was directed at Gerwaski or made in a way that intends or recklessly disregards the risk of emotional distress for Gerwaski. The only specific allegation of conduct directed at Gerwaski that might meet the extreme and outrageous standard was offensive comments allegedly made by members of non-party organization Nevada Palestine Liberation.

Gerwaski also has not alleged that he suffered severe emotional distress that is recoverable under Nevada law. His allegation that he felt emotional distress through "great humiliation, embarrassment, shame, and other pain and suffering" is wholly subjective. He has not plausibly alleged any objectively verifiable indicia of emotional distress….

And it concluded that the IIED claim was in any event precluded by the First Amendment:

Gerwaski argues that the conduct of AMP and SJP-UNLV falls outside First Amendment protections because it constitutes material support for terrorism, and, for SJP-UNLV, true threats. Gerwaski notes that Holder v. Humanitarian Law Project (2010) rejected a First Amendment challenge to a law that criminalized providing material support to foreign terrorist organizations. In holding that the law was constitutional as applied, the Supreme Court noted that "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control." Similarly, "service" does not apply to independent advocacy but only "providing service to a foreign terrorist organization." With these caveats, the Court upheld the statute because it "reaches only material support coordinated with or under the direction of a designated foreign terrorist organization" of which speech may be included.

"True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." "Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric." …

As pleaded, AMP and SJP-UNLV's conduct alleged in the [Complaint] is protected by the First Amendment. All the conduct alleged appears to take place in public areas and involves speech on the conflict between Israel and Palestine and UNLV's response to that conflict. This is a matter of public, rather than private concern. Gerwaski does not allege any conduct by either of these organizations that is directed at him in a private setting. None of the speech described could be interpreted as likely to incite imminent lawless action or as a serious expression of intent to harm any particular individual.

Gerwaski alleges that AMP has "knowingly used or permitted the use of funds … to provide support to terrorists, terrorist organizations, terrorist activities, or family members of terrorists" and that "[d]efendants identify themselves as not just aligned with Hamas's terrorist activities, but 'PART of' them …." But these conclusory statements are not plausibly supported by the factual allegations in the [Complaint]. Gerwaski relies on the fact that NSJP claims to be part of the "Unity Intifada" movement and allegedly puts forth its messages in response to Hamas's rhetoric or vice versa. And Hamas has expressed that it is pleased and reinvigorated by the protests on American college campuses. Even taking these allegations as true, they do not plausibly show that AMP and SJP-UNLV are providing personnel or service to Hamas rather than independent advocacy.

Seems generally correct to me.