What does the 1964 Mississippi Burning case that occurred at the height of the civil rights struggle have in common with the plight of besieged Jewish and Israeli university students today? More than university administrators or the faculty and student tormentors of the Jewish students may realize.
While prosecutors can use RICO statutes to press the case against Students for Justice in Palestine (SJP) for their efforts to harass and intimidate Jewish and Israeli students on college campuses, the same law that prosecutors used to litigate the 1964 murder of three civil rights workers in Mississippi might also apply.
SJP and allied organizations have engaged in a pattern of conduct amounting to illegal harassment, intimidation, and discrimination targeting Jewish and pro-Israel students
In “United States v. Price,” better known as the Mississippi Burning case, prosecutors successfully argued that they could apply the Anti-Klan Act of 1871 (42 U.S.C. §§ 1985-1986) not only to the direct perpetrators of the murders, which were committed by members of the Ku Klux Klan, but also to those who were part of the broader conspiracy to deprive individuals of their civil rights or, importantly, knew of the conspiracies but failed to take action to prevent them.
Section 1985(3), for example, allows federal civil claims against individuals who conspire to deprive others of constitutionally protected rights. Section 1986 goes a step further, establishing an affirmative duty and bystander liability upon those who have knowledge that a Section 1985 conspiracy is about to be committed but neglect or refuse to use their power to prevent it.
This Mississippi Burning precedent is directly applicable to the SJP conspiracy to harass Jewish students. SJP and allied organizations have engaged in a pattern of conduct amounting to illegal harassment, intimidation, and discrimination targeting Jewish and pro-Israel students in violation of students’ Section 1985(3) rights.
Online forums also reflect the conspiracy. SJP plans and recruits for activities targeting Jewish students through various communications platforms such as online forums, encrypted messaging apps, and similar tools to shield activities from public view. This shift to online organizing by hate groups creates both challenges and opportunities for law enforcement and university administrators seeking to detect and disrupt unlawful conspiracies. However, while these online communications may be hidden from external view, they are likely visible to a significant number of insiders and sympathizers who participate in the same digital networks, as well as university information technology managers.
This is where Section 1986 liability comes into play. To the extent that SJP members and supporters become aware, through online communications, of unlawful conspiracies to harass and intimidate Jewish students but fail to act to report and prevent them, they face civil liability under Section 1986, even if they did not participate in or even agree with the aims of the conspiracy.
It is critical that university administrators, law enforcement, and the public take action to hold SJP and its supporters accountable and protect the rights of Jewish and Israeli students.
In this way, Section 1986 could serve to incentivize individuals within SJP’s online ecosystem who observe the planning of activities that cross the line into illegal infringement of Jewish students’ rights to take affirmative steps to report and disrupt them. The prospect of civil liability and monetary damages may motivate more conscientious objectors and whistleblowers to come forward.
Those accused of Section 1986 violations for failing to report based on online information would raise legal defenses, including potential First Amendment arguments that the statute impermissibly compels speech. However, precedent suggests that requiring disclosure of purely factual information regarding an imminent conspiracy to violate civil rights would not unconstitutionally compel endorsement of any ideology or run afoul of rights to anonymous speech and association.
Exposing the full scope of SJP’s online activities is essential to shine a light on the injustices faced by Jewish students on college campuses today. The visible protests are just the tip of the iceberg. It is critical that university administrators, law enforcement, and the public take action to hold SJP and its supporters accountable and protect the rights of Jewish and Israeli students. The Anti-Klan Act provides a powerful tool to do so, just as it did in the fight for civil rights over half a century ago.
