Witness for Peace protester
A Witness for Peace protester readies his signs for the weekly Shabbat protest that started in 2003 outside Beth Israel Congregation in Ann Arbor. (Alex Sherman)

The plaintiffs did not demonstrate that the protests caused them injury, a U.S. judge decided.

A judge has dismissed the lawsuit against anti-Israel protesters who stand outside Beth Israel Congregation in Ann Arbor each week.

The decision, made by U.S. District Judge Victoria Roberts on Aug. 19, says the plaintiffs did not prove they suffered concrete injury as a result of the protests.

“Plaintiffs fail to allege a concrete injury, and thus fail to allege an injury in fact. This is fatal to their lawsuit since they cannot satisfy an essential element of Article III standing,” the decision reads.

Ann Arbor resident Henry Herskovitz, who formerly identified as Jewish, began picketing outside of the synagogue more than 16 years ago. The protests continue to this day, with a small group of people protesting outside Beth Israel every Saturday morning, holding signs with messages including “Jewish Power Corrupts” and “Resist Jewish Power.”

Israel Supporter
An Israel supporter, shows up sometime to counter the protesters. Alex Sherman

In December 2019, a lawsuit was filed by Marvin Gerber, a Beth Israel member. Dr. Miriam Brysk, a Holocaust survivor and member of Pardes Hannah Congregation, which is located in an annex next to Beth Israel, joined the suit as a co-plaintiff.

The suit argued that the protesters violated the First Amendment by hampering congregants’ right to practice their religion. It also listed several Ann Arbor city officials, including Mayor Christopher Taylor, contending that the protests violate city code but that officials have neglected to enforce their rules.

Herskovitz and his fellow protesters later filed a motion to dismiss the case, which the judge has now agreed to grant.

“Indeed, the First Amendment more than protects the expressions by Defendants of what Plaintiffs describe as ‘anti-Israeli, anti-Zionist, an 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,” the judge’s motion to grant dismissal reads.

The plaintiffs’ lawyers will file a motion for reconsideration as early as next week, according to Ziporah Reich, director of litigation at The Lawfare Project and co-counsel to the plaintiffs. The Lawfare Project, a legal network aimed at defending the Jewish and pro-Israel community, joined the lawsuit as a co-counsel and to provide financial assistance in February.

If the motion for reconsideration is denied, the plaintiff’s counsel will file an appeal with the Sixth Circuit Court of Appeals.

“Yesterday’s ruling was a minor setback,” said Marc Susselman, the plaintiff’s lead counsel. “The court did not rule on the merits of the case or address any of the First Amendment issues. This was a technical ruling on the matter of whether the plaintiffs have standing to sue. The plaintiffs clearly have standing based on the emotional distress caused by the presence of antisemitic signs outside their place of worship.”

Herskovitz told the Jewish News he was grateful for the ruling, and thankful to his lawyers and the ACLU, which filed an amicus brief on behalf of his group in March.  

“To me, it’s clear Jewish power still exists, it’s still strong, and [Susselman is] right, he’s got a set-back on this one because the judge ruled that the first amendment is strong and what we do is free speech.”  

This story has been updated with a quote from Henry Herskovitz, a defendant in the lawsuit.