Ann Arbor congregants appeal ruling that they must pay anti-Jewish protesters $159,000


Stewart Ain, The Forward

This story was originally published on Feb. 9 by the Forward. Sign up here to get the latest stories from the Forward delivered to you each morning.

Two congregants who worship at a Michigan synagogue targeted every Shabbat by anti-Jewish and anti-Israel protesters are planning to appeal a court ruling requiring them to pay the protesters $159,000 in attorneys fees.

The congregants had sued the protesters, who have been showing up weekly for 18 years across the street from Beth Israel Congregation in Ann Arbor, Michigan, holding signs that say “Resist Jewish Power,” “America First, Not Israel” and “No More Holocaust Movies,” among other slogans.

A U.S. District Court judge tossed out Marvin Gerber and Miriam Brysk’s 2019 lawsuit, saying the congregants had no standing. A three-judge appeals court panel then decided that they did, but concluded that the case had no merit. Last month, the District Court judge, Victoria Roberts, ruled that the congregants must cover the protesters’ attorney fees.

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Brysk’s pro bono attorney, Marc Susselman, filed an appeal to stay that ruling Tuesday with the U.S. Court of Appeals for the Sixth Circuit, noting that though Roberts had ruled that the plaintiffs’ claims were “frivolous,” entitling them to recover attorney fees, the appeals court had found “none of the claims” frivolous.

Both Gerber and Brysk, a Holocaust survivor who belongs to a different congregation that rents space in the synagogue, are now hoping the U.S. Supreme Court hears their case. Susselman on Jan. 19 filed a petition asking the high court to consider the appeal. Nathan Lewin, a federal trial lawyer who has argued dozens of cases before the Supreme Court and is representing Gerber pro bono, said he plans to do the same.

Lewin said he will argue that the lower courts failed to protect the congregants’ First Amendment right to the free exercise of religion. Protesting around a synagogue, church or mosque, he said, is different from doing the same elsewhere.

“You can have free speech in all places, but you can’t intimidate or harass people around their place of worship. This is a freedom of religion case.”

Lewin added that congregants as well as the synagogue’s rabbi, Nadav Caine, have been quoted as saying the protesters have dissuaded congregants from coming to worship, even though they do not physically block them.

Before agreeing to take the case to the U.S. Supreme Court, both Susselman and Lewin asked the three-judge Court of Appeals panel to allow the full court to rehear their case. That request was denied on Nov. 2.

The Supreme Court agrees to hear only about 2% of the cases filed to it each year, according to its website.

Last month, three days after a rabbi and his congregants were taken hostage during services by a gunman in Texas, the city council of Ann Arbor for the first time issued a formal resolution condemning the continuing protests as antisemitic. The resolution answered the pleas of many members of Beth Israel, a Conservative synagogue just a few blocks from the University of Michigan’s Hillel center, as well as the synagogue’s neighbors.

The protesters’ stated purpose is to critique Israel policy, but members of the group frequently bring antisemitic signs and chant antisemitic slogans. The group’s de facto leader, Henry Herskovitz, identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts.