On the Jewish calendar, today is Taanit Esther (the Fast of Esther), a religious observance immediately preceding the Jewish holiday of Purim, on which it is particularly appropriate to offer prayers for Jews in danger.
Last year on this holiday, Rabbi Shmuel Herzfeld went to the Israeli embassy in Washington to offer prayers for the release of hostages who had been held by Hamas in Gaza since Oct. 7, 2023.
When Herzfeld arrived at the embassy, he was confronted by a group of anti-Israel protesters who had been demonstrating outside the embassy for months. When Herzfeld began to pray, he was subjected to a sound attack that was personally ordered by the leader of the protesters, who said: “Now it’s time for the sirens.”
The protesters close to Herzfeld then blasted their sirens at decibel levels 1,000 times greater than that allowed by D.C. law. The protesters also taunted Herzfeld, telling him that he and his colleagues “looked like Nazis”, that they were “celebrating terror” and asked if they were “proud of terrorizing children.”
On May 1, I filed a lawsuit on behalf of Herzfeld, alleging claims for assault and battery arising from the sound attack, which had caused the rabbi acute acoustic trauma. Within days of the filing of that suit, two leaders of the anti-Israel protests (including the person who had said “now it’s time for the sirens”) filed petitions for “anti-stalking” orders against Herzfeld in the Domestic Violence Division of the D.C. Superior Court.
They alleged that Herzfeld had stalked them in part by appearing at the embassy on Taanit Esther (which was March 21 last year) and in part by coming to the embassy on two subsequent occasions when they claimed that Herzfeld knew that the anti-Israel protesters would be present.
Under D.C.’s Anti-Stalking Law, Herzfeld was immediately subject to a temporary anti-stalking orders (TASOs) until the petitions could be resolved. The TASOs prohibited Herzfeld from engaging in various activities in certain sections of Washington, including the neighborhood surrounding his own yeshiva.
These “anti-stalking” petitions and the TASOs caused Herzfeld considerable distress.
The Domestic Violence Division of the D.C. Superior Court, as its name implies, handles serious matters involving threats to the safety of (mostly) women who are being threatened by husbands, ex-husbands, boyfriends or real stalkers. The act of stalking is a crime under D.C. law, so judges in that court are understandably quite careful to make sure that the people seeking the court’s help get it.
As a consequence, the judge assigned to the petitions against Herzfeld, Judge John McCabe, was unwilling to dismiss the case in response to our motion to dismiss, in which we argued that Herzfeld’s visits to the embassy and his prayers and statements were all constitutionally-protected activity and could not constitute stalking.
In order to fully understand the matter, the court held a three-day trial last summer. At the end of the trial, the judge dismissed the anti-stalking petitions, holding that Herzfeld’s activities were all constitutionally protected under the First Amendment and that there had been no act of stalking.
On Feb. 18, McCabe issued a second order, this one concluding that the petitions seeking anti-stalking orders against Herzfeld were “frivolous” and had been filed in “bad faith” because “the filing and maintaining of the petitions in these two cases was brought for ‘coercive purposes’ — to interfere with [Herzfeld’s] constitutionally protected right to go to the site of protests at the Israeli Embassy.”
McCabe then granted Herzfeld’s request that the court order the two protest leaders who had filed the petitions against Herzfeld to pay the sum of $181,526 in attorneys’ fees and costs. The court held that none of the incidents set forth in the petitions “comes close to stating a basis that [Herzfeld] committed the crime of stalking. The Petitioners are experienced protesters and were very much aware that the actions that [Herzfeld] at the embassy were constitutionally protected.”
In its ruling, the court relied on a special statute called the Anti-SLAPP Act, which is designed to discourage the use of frivolous legal proceedings to prevent citizens from exercising their constitutional rights.
The lesson to take away from this, is that no matter what tools the haters of Israel use to stop Jews from supporting Israel, the American legal system will protect us. We have the constitutional right to express our support for Israel and to stand with Israel. Don’t let anyone tell you otherwise.
Lieberman is a partner at the Washington law firm of Rothwell Figg.
