Christopher Owens ðŸŽ¥ Scala!!! or, The Incredibly Strange Rise and Fall of the World's Wildest Cinema and How It Influenced a Mixed-up Generation of Weirdos and Misfits.

Despite the dominance of streaming services, there’s an indefinable magic about the cinema.

Be it a full house or a select few gatherers, devoting time to watching a film in a dark theatre with strangers can be a transcendent experience as one experiences the joys and sorrows of whatever is on the screen at that particular moment.

And the more underground movies can attract a certain…clientele. People who you would normally cross the road to avoid but none of that matters when you’re all lumped in the same space watching a double bill of Salo and Caligula,

And that was the Scala Cinema.

Opening in 1978 off Tottenham Court Road in London before moving to Kings Cross in 1981, the latter already had rock n roll pedigree thanks to two photographs taken there being used for iconic albums covers (Transformer by Lou Reed and Raw Power by the Stooges). The initial Scala featured gigs from Throbbing Gristle, 23 Skidoo and…er… Spandau Ballet, but would also screen cult underground films from the likes of David Lynch and Derek Jarman.

Once the move to Kings Cross happened the audience went with them and unsurprisingly given the state of the area at that time, added alcos, drug addicts, rent boys and people wanting somewhere to sleep started piling in.

Witing about similar setups in New York, Bill Landis summed them up perfectly:

Grind houses were opulent, old-style movie palaces with chandeliers, opera seats and huge screens. They seated several hundred people and played all kinds of films, across genres. A shoebox theatre catered to the adult audience, seated eighty to 200, usually on one floor, and was shaped like a rectangular shoebox…. It was a very egalitarian form of entertainment that attracted all sorts — kids cutting school, people on dates, inner-city people escaping the cold or heat. The biggest hits cost five dollars.

By all account it was a magical period, and this documentary does a wonderful job of highlighting it. Filled with anecdotes from famous attendees (Stewart Lee, Adam Buxton, Matt Johnston, Jah Wobble, Barry Adamson) and staff, Scala!!! rightfully places the cinema as being somewhere in-between grindhouse and art house (quite a feat) and also being a centre for radical action (due to the various benefits for the miners’ strike and gay rights).

Quite a few humourous tales from the staff involving dead bodies, dislocated arms and LSD give the viewer a hearty chuckle and make them a tad jealous that they did not experience such events! But there are moments of solemness, making you realise that hosting an assortment of misfits and weirdos may seem like fun, but the more ‘on edge’ characters can make life a misery for you.

One area that is hinted at, but not discussed, is the gentrification of Kings Cross. Starting in the early 90’s, the drug dealers and sex workers were pushed out as construction for the Eurostar began (although it is worth noting that violence in the area had increased as well). Around this time, a secret screening of A Clockwork Orange (banned in Britain since 1974). A court case ensued and this, combined with the end of the lease, spelled the end of the cinema. It is hinted at that the cinema had riled the establishment, but this seems like wish fulfilment thinking especially when the above is taken into consideration.

Nonetheless, this not just an excellent look at a long-lost part of London night life but also a reminder of the power that cinema still has.

 

⏩ Christopher Owens was a reviewer for Metal Ireland and finds time to study the history and inherent contradictions of Ireland. He is currently the TPQ Friday columnist.

Scala

Lynx By Ten To The Power Of One Thousand And Seventy Nine

 

A Morning Thought @ 2188

Enda Craig The Irish Government’s introduction of grant schemes for homeowners affected by defective concrete was primarily aimed at preventing a potential financial crisis. 

This defective concrete, containing high levels of the reactive iron sulphide minerals, caused walls to crack and crumble, leaving thousands of homes in dire straits. However, a closer examination reveals that the true beneficiaries of these schemes were not the homeowners but the financial institutions.

Here’s what transpired:

Initial Legal Challenges

When legal action against the suppliers of the defective concrete proved unsuccessful, homeowners turned to their political representatives for help. The issue was raised in the Dáil multiple times, with politicians acknowledging the problem. Many homeowners faced a grim choice: continue paying substantial mortgages for homes that were slowly deteriorating or take drastic measures like returning their house keys and stopping repayments.

Government Grant Schemes

The government introduced grant schemes, stating at the time, they meant to rebuild or repair affected homes. These schemes provided a glimmer of hope for homeowners, convincing them to continue mortgage payments. The underlying strategy was to prevent a mass wave of defaults, which would have severely impacted banks and building societies. In essence, the government’s staunch defense of the schemes suggests that their primary goal was to protect the banks rather than the homeowners

Anti-Homeowner Reality

However, when affected homeowners attempted to use the schemes, they discovered their anti-homeowner nature. Only those with substantial additional funding could cover the shortfall between the grant and actual rebuild costs. Consequently, only a small number of houses were fixed, creating the illusion of viability while minimizing the government’s expenditure. This intentional propaganda misled the wider public into believing that most homeowners were receiving genuine assistance. This was blatantly untrue and is still going on from government, media and politicians to this day.

Dire Situation

Before the schemes, many homeowners received no support from banks, mortgage companies, or the government. Faced with rapidly deteriorating and failing properties, some returned their keys to the bank and others stopped mortgage repayments, leaving financial institutions with non-performing loans.

True Objective

The government and senior civil servants recognised this could only be the beginning and needed to act quickly. The primary objective was to prevent a financial crisis triggered by mass loan defaults. The potential billions in unrecovered loans would have had severe repercussions. This clearly shows the grant schemes were introduced to give homeowners hope which would ensure continued loan payments. However, the reality was different: the grants were designed to safeguard financial institutions’ bottom lines.

In summary, while presented as benevolence, these schemes primarily served the interests of banks and building societies. The plight of homeowners took a backseat, leaving many still struggling with crumbling homes and inadequate support.

⏩ Enda Craig is a Donegal resident and community activist.

Defective Concrete Schemes Created To Protect Banks - Never To Help Home Owners -----

Lynx By Ten To The Power Of One Thousand And Seventy Eight

Caoimhin O’Muraile ☭ Ever since life first emerged on Earth about 3.5 – 4 billion years ago as microscopic (Microbes) living orgasms nature has introduced climatic changes. 

These climate changes have been hitherto a natural process to meet the changing conditions and life forms inhabiting the planet. The last Ice-Age ended between 11 and 10 thousand years ago when life, including modern humans emerged from the icy waste. It is the rapidity of these changes in our climate which is more concerning in relatively modern times, since the outset of industrialisation.


The first Industrial Revolution began around the mid to late 18th century and as it gathered momentum, harnessing the new machinery to motive power using coal as its driver thus spewing huge amounts of pollutants into the atmosphere climate changes have increased in both rapidity and severity. Karl Marx warned of flooding if the seas rose particularly for countries low lying like Ireland. Marx stated “of Irelands 32,509 English square miles, 13,243 lie between sea level and 250 feet”. Marx could see the pollutants being spewed out of factory chimneys and these increased with the introduction of capital goods industries like the Railways powered be coal. Along with the factories of industrial cities like Manchester and Birmingham these steam engines poured huge amounts of damaging pollutants through their smoke into the atmosphere. The new powered machinery advanced after about 1870 with Britain now exporting many new inventions and coal abroad, in what is often termed; ‘the second Industrial Revolution’ and with the First World War, which was an industrially powered conflict, in 1914 the amounts of damaging toxins, including Mustard Gas, were regularly pumped into our environment.

With the introduction of aviation and aviation travel the pollutant risk has increased ten-fold. Today air travel accounts for the lions’s share of travelling to foreign parts as people move to and from different countries either on business or pleasure. This naturally increases the volume of aircraft flying across our skies.


Perhaps the one educational aspect of the Covid Lockdown was the noticeable difference in the atmosphere. With less or even no air travel the skies did look much clearer than in normal times. Our politicians talk bull-shit and speak in contradictions when it comes to aviation and the effects the airplane has on our planet. One minute they speak of the need to clean up the planet and the atmosphere and the need to reduce the amount of air travel, then they speak of building a third runway at Dubin Airport. The British Government speak similar anomalies when they too voice concern about the amount of aviation travel and then speak of extending Heathrow Airport! Obviously with an increase in the size of airports an increase in capacity of travellers and, therefore, aircraft accompanies these extensions. This means more take offs and more high-octane aviation fuel emissions into the atmosphere. Michael O’Leary, the head of Ryan Air’, is demanding the yearly passenger seal at Dublin Airport be raised to allow more passengers and thus more of his aircraft and profit. So much for concern about the environment.

What happens down here on earth is regulated in many ways by what is happening hundreds of miles above our heads. The earth’s five atmospheric layers each has a specific purpose and governs much of what happens down here. Rainfall for example is to a great extent governed by the troposphere which contains about 85% of the atmospheres total mass. Tropospheric processes such as the water or hydrologic cycle – the formation of clouds and rain – have a great influence on meteorological (the weather) conditions on earth. In recent decades space travel has increased hugely, and today people like Elon Musk, Richard Branson and many others are in competition in the race to commercialise space travel for the very wealthy. Musk is even talking about “recolonising Mars” as if the planet has been colonised in previous times which is highly unlikely. This thinly veiled disguise is to cover up the real intentions of these damaging excursions into space. Those intentions being, apart from amassing even greater profits, are to find another compatible planet for a few of the world’s wealthiest to live on once this planet finally blows up or floods. Either way there may not be long left for the earth’s fauna, including humans, and flora if this sort of greedy behaviour continues, which I expect it will!

Each time one of these rocket powered space craft takes off it is the equivalent of 28 Jumbo Jets or 747s taking off simultaneously. As Musk, Branson and the other space cowboys increase the volume of space travel it could mean possibly twenty of these rocket powered machines taking off on a weekly basis. This would mean, on the craft’s present size, an increase of 560 Jumbo Jets taking off weekly simultaneously, which would be 29,129 per year. That is at the present size of the crafts which will increase in size, making that figure redundant in the near future. The amount of rocket fuel, even higher in octane than domestic aviation fuel, and emissions given off into the atmosphere, will increase greatly and with this increase the amount of damage to the climate will increase. As these huge projectiles blast through our very delicate atmospheres five layers each time causing some more damage how long can the delicate ecological balance be maintained? We must remember that people like Branson and Musk place profits over and above all other considerations including, it appears, the planet! What is more annoying is the amount of people applauding these space cadets for their brilliant minds. That is tantamount to an arsonist calling to your home with a gallon of unleaded, asking you to evacuate your home while they burn it down and you, the occupier applauding them for doing so!

The icecaps are melting at an alarming rate with chunks of ice the size of Wales falling away into the seas regularly. The sea levels are rising at an alarming rate and have been with global warming over the last 200 years or more. Take for example the North West Passage which is a sea lane linking the Atlantic and Pacific Oceans via the Arctic Ocean. During the 19th century this route was unnavigable due to thick ice packs but by 1903 a route had been found, albeit very difficult still to navigate. As the 20th century matured navigating this passage became increasingly possible due to the ice melting. Since 2009 this melting of the ice has increased dramatically making the North West Passage easily now navigable and these changes in the rapidity of the melting is down to global warming. Man made climate change! So much change in such a short space of time is alarming and should be of major concerns for governments around the globe. Unfortunately the likes of Musk and Branson have more economic power than all these so-called governments combined. This once again proves governments are not the real power, the international capitalist class is and it is in its interests which governments govern. As Ken Livingstone, the former Lord Mayor of London once said; “if voting changed anything they’d abolish it”. Very true Ken.

How much longer does our planet have left? The scientists, if they know, dare not tell us as such information would not be in the economic interests of the international bourgeoisie. My own unqualified estimation at the present rate, about 50-60 years of reasonably comfortable habitable conditions left. After then, I would not like to guess and what is more, I will be long gone and will be unaffected. It is not for my generation and those older we should be concerned for it is the younger layers of society who will suffer. Before the Covid crisis school students across the globe mobilised in large numbers around the world. The initiative was led by a Swedish school student, Greta Thunberg. Since the end of Covid restrictions these teen demonstrations are seldom heard of and as for Greta? Who knows, perhaps she has been bought off? One thing is for certain governments around the planet as a result of Covid banned public meetings and demonstrations such as those organised by the planet’s youth. I bet these governments breathed a sigh of relief especially when the protests did not reemerge!

Caoimhin O’Muraile is Independent Socialist Republican and Marxist.

Climate Change ☀ A Man-Made Disaster

Lynx By Ten To The Power Of One Thousand And Seventy Seven

 

A Morning Thought @ 2187

Stanley Cohen writing in Counterpunch.


Ramapo, New York is per capita one of the most ultra-Orthodox Jewish communities in the United States. Split between an ardent pro-Israeli/Zionist community and the Satmar’s -one of the largest and most vocal Hasidic dynasties that recognizes neither the state of Israel nor Zionism as representative of Jewish faith or history- until recently Ramapo tried to walk a fine petty political line between those that see Israel as the democratic land of the chosen, and those that see it as little more than the “devil’s cape.” Not long after the events of Oct 7, the Supervisor of Ramapo Township elected to paste the Israeli flag on the side of its municipal building asserting it was a sign of solidarity, notwithstanding settled law that no such foreign flag could be displayed on municipal property save for rare and limited circumstances and requirements not present at the time or since. For months by letters, phone calls and demonstrations many in the local Hassidic community petitioned the Ramapo Supervisor to remove the flag. He refused. Eventually, a group of Satmar Jews including an elderly rabbi tore the flag down and ripped it up.

The offspring of parents who met as teens in the Auschwitz-Birkenau concentration camp and who lost almost all their family to the Holocaust, the rabbi’s position was simple: remove the Israeli symbol of religious heresy or we will… and did. Arrested and charged with a felony hate crime, that charge was dismissed under First Amendment grounds in which I pointed out the paradox of my representing the rabbi in court on a hate crime for destroying the Israeli flag, but at his arraignment, I could constitutionally take the US flag out of my own pocket and lawfully do the same.

After dismissal, we made a number of requests of Ramapo to remove the Israeli flag as in clear violation of a century-old NY statute that prohibited exalting foreign states on government property and, further, that the display violates the Establishment Clause of the Constitutions of both the United States and New York. With fair warning of what was to come and ignoring our multiple requests, we filed a lawsuit against Ramapo to remove the flag.

With more than 1500 attorneys in the United States, Europe and Asia, the Law Firm of Ropes and Gray was brought in by Ramapo to defend against our lawsuit. Noted most recently for its public statement decrying “the demonization of Jews pervading the press, social media and streets of this country” among others Ropes and Gray has exalted the efforts of the ADL in combatting “anti-Semitism” and has a partner recognized by ADL for his “deep and longstanding commitment to the ADL mission: to stop the defamation of the Jewish people.” Need I say more?

The following novella of sorts is our answer to the motion by Ropes and Gray to dismiss the suit. 
Stanley L. Cohen

Screenshot from video on Lohud

The Declaration of Leibish Iliovits

I am the Plaintiff in the instant matter in which I seek an order of this Court requiring the Town of Ramapo (hereinafter at times “Ramapo”) to remove and to cease and desist from continuing to fly the Israeli flag on or in front of Town Hall.

Although I spent my early years in both Brooklyn and upstate, I live in Airmont, in the Town of Ramapo with my wife and children and have for some twelve years. Over the years I have attended a number of different schools, including four years spent in local Yeshivas in Ramapo.

I am a member of the worldwide Hasidic Ultra-Orthodox community which above all else stands for emphasizing certain tenets of Judaism, such as unity, humility, and helping others, tracing its roots back hundreds of years.

Although my great grandparents which included renowned Rabbis with congregations of their own were Holocaust survivors, like millions of others–Jews and non-Jews alike–they lost most of their respective families during World War II.

From that experience our surviving community has continued in its age-old effort to practice and live-out with absolute consistency our faith having as some of its essential principles to facilitate peace, justice and humanity among all peoples including Palestinians long attacked and suppressed at the hands of Israel–a place that we do not recognize as a legitimate state, let alone as the voice of Judaism.

Having resided in multiple places and attended multiple schools, I have met and known a colorful array of friends, rabbis, and scholars, and I have established friendships as well as family relationships with numerous people from different Hasidic sects and communities, covering a wide range of backgrounds and opinions.

Yet, despite the diversity of thought, at times disagreement, within our community there is near uniform consensus that Israel is a Zionist entity not rooted in the teachings of Judaism nor committed to the practice of its traditions and humanity. It is in this light and other related concerns that I filed this lawsuit seeking the removal of the Israeli flag from any and all municipal properties of Ramapo.

Although I am the sole named plaintiff in this lawsuit, as a local Rabbi and active participant in ensuring that my community’s needs and aspirations are addressed within it and with the local government and politicians, I spend endless time meeting with and talking to my community which numbers in the thousands.

I have no doubt there are at least 1000 adult residents within the Hasidic Ultra-Orthodox community Ramapo who strongly oppose the municipal government flying/displaying the Israeli flag and fully support my lawsuit. Moreover, based upon my personal interactions and observations there are at least 2 to 3000 people within the local Hasidic community who feel entirely uncomfortable having this flag and what it stands for posted by the Ramapo government whether on its town hall, or now flying it on a flag pole in front of it. In addition, there are thousands of others–perhaps as many 15,000 or more local Jews–who don’t identify themselves in general as supportive of Israel, and would rather stay away from Middle East politics.

Although volumes have been written of why hundreds of thousands, perhaps more, of Jews worldwide do not recognize let alone support Israel in general, and likely millions who do not countenance what it has done and is currently doing to Palestinians, in brief let me provide the Court context for this opposition.

In terms of the Hasidic Ultra-Orthodox community, the most influential rabbi in the last century in the United States, specifically in New York, was the great Grand Rabbi Joel Teitelbaum of Satmar. Not only was he the most influential rabbi, but most other rabbis and members of the Hasidic community considered him as the most superior rabbinical leader in New York–as well as of the US. Some even regarded him as the master great rabbi of the generation.

This is why his followership grew up to be the largest of all Hasidic sects worldwide. The Grounds and Fundamentals Rabbi Joel Teitelbaum settled for a wide range of different religious matters, most specifically the religious educational systems, and his Torah-based approach to Zionism and Israel, were used and were seen by other Rabbis as grounds on what to rely on, and to accordingly establish policies and guidance for their own congregations and educational systems, here in the United States as well as abroad. Rabbi Teitelbaum’s teachings and rulings are well documented in his writings, as well as in his countless speeches, most of which are printed and easily accessible, and they serve as a basis for guidance on how to deal with the Zionist ideas and their state of Israel in light of the Torah teachings.

Rabbi Joel Teitelbaum was a known anti-Zionist, perhaps the most renowned anti-Zionist, anti-Israel religious leader of the century, his anti-Zionist positions followed track with the positions held by almost all Orthodox rabbinical leaders back before WW2, and Rabbi Teitelbaum’s anti- Zionist teachings and rulings were almost unanimously accepted and concurred by most of the ultra-Orthodox Hasidic as well as non-Hasidic rabbis from European descent here in the US, albeit with some minor divergences.

His writings and teachings were cherished by all of them. And his position on time-sensitive issues were commonly referred to as the final ones to be followed. As noted, my great-grandparents included respected Rabbis with numerous followers who all adhered to the pathway of Rabbi Teitelbaum and his anti-Zionist positions, sometimes paying a price for that, i.e. by losing some members of their congregation and their financial support. But they still stood steadfast for what they saw – in their rabbinical authoritative capacity – as their compulsory religious duty. Nothing has changed all these years later among our community.

While the Zionist presence and control in Israel has swept some rabbis there into getting on track with the Zionist agenda – partially or fully, the old settled frum (devout Torah observant) community there, whose opposition to the Zionist movement tracks back to the very first appearance of Zionists in Israel, have formed the oldest and at times the only strictly orthodox organized union of congregations ni Jerusalem – namely the Eideh Hachareidis, and for that same reason appointed Rabbi Teitelbaum as their great Grand Rabbi and rabbinical leader of the time (even though he didn’t live there).

Rabbi Teitelbaum was the one who first organized anti-Zionist and anti-Israel demonstrations in the United States some 70 years ago. At his first anti-Zionist demonstration, most prominent Orthodox rabbis in New York took part. Rabbi Joel Teitelbaum also founded the Central Rabbinical Congress of the United States and Canada, which includes hundreds of rabbis, most of them from European descent. This Rabbinical Congress was also founded with the same purpose, to have an established Rabbinical organization stand strong against the Zionist control and influence on Jewish masses and Israel.

As noted, since its beginning in the mid-nineteenth century, almost all Orthodox rabbis unanimously and vocally rejected the idea of Zionism and fought the Zionist movement at every step of the way. Indeed, as Zionism tried to expand its followership, or to spread their dangerous philosophies, the rabbinical leadership stood up against them and tried to restrain and stop its efforts to usurp Judaism and eventually to further its non-faith through the artificial creation of the state of Israel. This approach has continued up until today, with most ultra-orthodox leaders opposed to Zionism and to the state of Israel in various degrees.’

In such an environment, slowly but surely all Zionist symbols including the Israeli flag as well as the all-time sacred Star of David, have vanished and disappeared from almost all public ultra-orthodox congregational settings. Up until today, it’s still uncommon to find those symbols on public Jewish religious structures in heavily populated ultra-orthodox communities such as Ramapo.

For other immediate practical reasons, the politically convenient display of the Israeli flag as so much a symbolic spokesperson for Ramapo politicians has not just offended the fundamental faith beliefs of thousands of its Hasidic Ultra-Orthodox citizens, but created the real possibility of triggering danger and violence directed at them.

Putting aside that since its creation Israel has sought to promote and exploit false dangers to world Jewry as a whole? In Israel itself, the Zionist government is actually all about eroding Jewish religious practices and beliefs from wherever they can. Pretending to the world that it is a free country and society ensuring the very essential freedoms expected and accepted in the Western world, the Zionist government there has long legislated restraints upon religious Jews from freely adhering to Torah law.

The reality is the only way religious freedoms in Israel can remain protected is through the outspoken opposition from Jews around the world rejecting its representation and calling out Israel for religious persecution.

This tension between the crafted face of Israel and the reality of its existence and its practices is not at all limited to the Middle East. To be sure, as much of the world watches with pained expression over the level of Israeli depravity rained down daily on Palestinians having the Israeli flag fly over Ramapo’s municipal offices effectively and falsely declares that all Jews everywhere including in Ramapo support the Israeli slaughters in Palestine. Something which is both insulting and endangering us.

To a large segment of the Ramapo Ultra-Orthodox community this flag symbolizes our stolen identity. It hurts thousands of us to see the flag which, on so many levels, bespeaks the destruction of our age-old faith from what was once an ancient holy religious nation dedicated to God and his commandments into a newly founded nationalist project that cares only for violent expansion and not the fundamental tenets of age-old Judaism. It symbolizes a colonial project and government which in reality has become among the biggest enemy of age-old Judaism.

Because we of the Ramapo Ultra-Orthodox community oppose the bloody policies and actions of Israel, with the killings and torture it imposes on the Palestinians, both, from a religious Torah point of view and from a human point of view, we wholeheartedly reject those actions as not justified and entirely at odds with the practices demanded by Torah teachings. Yet, no matter what its stated purpose, flaunting the Israeli flag tells the public exactly the opposite.

Our community feels threatened by this flag. Brandishing the Israeli flag in what some pundits and politicians have described as a growing anti-Semitic environment may very well invite retaliation of strangers angry about Israeli policies and Zionist politics to take revenge upon our community by little more than misconception and appearance. This flag invites hate and takes an unnecessary and one-sided position in an overseas fight which invites unnecessary and disruptive rhetoric by angered outsiders and local faith-based and political disagreement.

Finally, I would note that the presence of the Zionist Israeli flag on municipal property restrains some of our community from entering the Ramapo government building, and for many others makes passing by or under it an uncomfortable travel at odds with the teaching of legendary Rabbi Teitelbaum. In one of his speeches, he noted that Torah Jews must refrain from entering a building where the Zionist flag is posted. Under these circumstances, obedient members of our community are or may be deprived from obtaining their benefits and rights as residents of the town of Ramapo.

For more than six months now members of the Ramapo Hasidic Ultra-Orthodox community have asked the town government to stop taking sides and exacerbating tensions and risks to our community and others within Ramapo by displaying the Israeli/Zionist flag on government property. At times by phone calls, at others by letters and demonstrations, we have implored civic leaders to represent our interests and concerns along with those of others. In the absence of any responsible reply from the local government, on multiple occasions members of our community have taken down and damaged the flag being charged with crimes including hate speech. Among those arrested for a hate crime has been a rabbi who lost most of his family to the Holocaust and whose parents met as childhood prisoners in the Auschwitz concentration camp.

This entirely partisan political display of the Israeli flag by Ramapo should be stopped. The friction, tension and danger arising from it are obvious. I implore this Court under state and federal law and respect for the diversity of beliefs of the many to order the Ramapo government to take down the Israeli flag.

A Memo of Law

Preliminary Statement

Famed Israeli scholar Yeshayahu Leibowitz,[1] who at age 90 renounced his nomination for the Israel Prize for Life Achievement[2] was an “ultra-Orthodox Jew who insisted that the state and religion must be separated completely to avoid corrupting each other.”[3] He argued vehemently for two positions: “that holding any state as a value in itself was inherently fascist and that sanctifying any piece of land, including Israel, was a form of idolatry.”[4] An ardent opponent of Israel’s occupation of the West Bank and Gaza, Leibowitz often spoke of the “dehumanizing effect of the occupation on the victims and the oppressors” and warned “that if the occupation continues, Israeli Jews are going to turn into what he called, Judeo-Nazis.”[5] More than thirty years ago Leibowitz wrote “most Israeli Jews have no content for their Judaism other than a piece of colored rag attached to the end of a pole and a military uniform.”[6]

All these years later the words of Yeshayahu Leibowitz have proven prophetic. And while Ramapo pays tribute to what has been exposed many times over to be little more than a lethal colored rag attached to the end of a pole,[7]Rabbi Iliovits and his community of Ultra-Orthodox cohorts refuse to do so.[8]

Try as Ramapo may, the issue before this court is necessarily not narrow. It is after all not simply about a small town and a small flag in a small upstate county in the midst of New York’s large diversity. No, unfortunately the issue at hand like the times in which we live is all about conflict. Large and small, but yet defining, these are moments in which a one-sided “war” which rages abroad has unleashed domestic turmoil not seen in the United States for generations. From coast to coast, this discord has galvanized a country pitting beliefs and rights against partisan cheer and political power; age old dogma against the chase of justice; principle against the willing sacrifice that can come from its exercise.

Leibish Iliovits is a solitary man: a Rabbi, a Satmar Jew, a husband and father who has spent a life in study, reflection and adherence to his religious faith. To him and thousands of others Jews who reside in Ramapo and its surrounding communities above all else there is nothing more purposeful than maintaining their place in an age-old devotion to a well-defined spiritual journey that rejects Zionism and the state of Israel and any of its shallow symbols as being entirely inconsistent with the foundational tenets of Judaism dating back thousands of years.[9]

These are times where large segments of the American community, including Leibish Iliovits and many tens of thousands of Hasidic Ultra-Orthodox Jews, disapprove of what Israel is doing to Palestinians in Gaza.[10] Yet, as so much indifference or rank denial stands the talismanic cheer of the local Ramapo government which despite significant national and local disapproval of Israel has elected to fly its flag and thereby honor a state which many millions throughout the United States and worldwide consider to be actively engaged in genocide.

It would be far too easy to frame the controversy before this Court simply in the light of Section141, Chapter 44, Article 5 of the New York Public Buildings (PBB) law and the constitutions of the United States and New York. Yet often context must serve as the appropriate and necessary launch for consideration of any judicial challenge to government conduct. Indeed, that is precisely what Ramapo has endeavored to do in its motion to dismiss, albeit in an entirely scripted self-serving light.

To be sure, some might conclude that in its preliminary statement in support of its Motion to Dismiss, Ramapo consciously dances around the core issue before this court: namely, whether it is lawful let alone constitutional for Ramapo to fly the flag of a foreign state on municipal property now going on some eight months as if the township was a “settlement” in occupied Palestine and not a New York state village with New York state residents which includes thousands of citizens who do not recognize, let alone support Israel. Moving quickly to a factual rewrite of the events of October 7, 2023 (hereinafter “October 7”), Ramapo seeks to entice the Court into this narrow, admittedly hurtful, journey though rumor built of propaganda buttressed by conscious Israeli disinformation. Yet, Petitioner has no problem with Ramapo’s effort to deflect, as its account not only invites an objective historical counter-narrative but, ultimately, frames the precise kind of tension long ago deemed unnecessary, if not dangerous, and thus prohibited under Section141, Chapter 44, Article 5 of the New York Public Buildings (PBB) law.

I. Ramapo Misleads the Court

While Rabbi Iliovits mourns for the loss of all lives, Israeli and Palestinian alike, as to October 7 because there has been no trial with evidence, examination and findings of fact by a jury or a neutral and independent court, the tragedy of that day remains very much a partisan cherry pick of what happened and, to a significant degree, by whom.

Thus, while initial statements crafted by the Israeli government, and embraced by others, lays the loss of life and destruction of property that day solely at the hands of Hamas, independent investigation shows those claims to be misleading if not false. For example, while a high-ranking Israeli Officer claimed that “eight infants were murdered in [a] communal nursery, and that an Auschwitz survivor called Genia was also murdered … these incidents … never happened.” See Haaretz, Israeli Army Officer Makes Incorrect Claims on Oct. 7 Massacre; IDF: ‘We’ll Set the Record Straight’, January 21, 2024. That same article goes on to point out that a claim that “pregnant women were sliced open” during the attack was “incorrect” and that a video recording purportedly “depicting the murder of a pregnant woman… was not filmed in Israel.” Elsewhere an Israeli claim that Hamas alone had killed numerous attendees at the Nova music festival was proven false with evidence that an IDF helicopter had opened fire on its celebrants. See Haaretz, Israeli Security Establishment: Hamas Likely Didn’t Have Advance Knowledge of Nova Festival (November 18,2023)(“According to a police source, the investigation also indicates that an IDF combat helicopter that arrived to the scene and fired at terrorists there apparently also hit some festival participants”). Apparently not all that unusual, most recently “Five soldiers [were] killed by mistaken tank fire in Gaza.” See. The Times of Israel, Diverse backgrounds give way to shared fate as Gaza friendly-fire victims eulogized, May 17, 2024.[11]

A. As to Claims of Baby Beheadings.

Of all the baseless Israeli government claims as to the tragedy of October 7 the ones most blindly echoed by partisan political players, parochial media outlets and, here, repeated by Respondents, two are standouts: allegations of baby beheadings and rape during that fateful day. To be sure, all these months later, there is simply no evidence to support the outrageous claim of “beheaded babies” on that day. As noted, just days after the attack an “Israeli army spokesperson [told] Anadolu [news service] over the phone that they have no information confirming allegations that Hamas beheaded babies.”[12] This was repeated to CNN News when an Israeli official advised that they could not confirm that babies were beheaded during the attack.[13] And while the assertion of baby beheadings was repeated by President Biden who, at the time, stated “I have been doing this a long time, I never really thought that I would see… have confirmed pictures of terrorist beheading children” the White House later backed away from that baseless allegation “telling CNN that neither Biden nor his aides had seen pictures or had received confirmed reports of children or infants having been beheaded by Hamas. The official clarified that Biden was referring to public comments from media outlets and Israeli officials.”[14] That this assertion was based solely upon self-serving Israeli claims has been established by numerous other respected and independent news outlets and news monitors which have confirmed the absence of any credible evidence of baby beheadings.[15]

B. As to Claims of Mass Rapes

Soo, too, claims of Hamas using mass rape as a weapon of war on October 7 have been debunked by journalists and Israelis as little more than state propaganda or biased, incompetent “journalism.” Anyone can allege anything they want; but is it credible, authenticated, and corroborated? The mass rape claims are not yet so proven. First, as uncovered by independent Electronic Intifada, The New York Times reported in December 2023[16] , in Screams Without Words, that an “Israeli military paramedic” attested that he found two bodies of teenage girls in a room in Kibbutz Be’eri, and that “[o]ne was lying on her side the [the paramedic] said, boxer shorts ripped, bruises by her groin. The other was sprawled on the floor face down, he said, pajama pants pulled to her knees, bottom exposed, semen smeared on her back.”[17] The New York Times debunked its own reporting by March 25, 2024 and conceded that “[n]ew video has surfaced that undercuts the account” of that Israeli military paramedic and that the Israeli medic declined to confirm his initial account.[18] This allegation was also debunked by Mondoweiss, The Intercept, residents of Kibbutz Be’eri,[19] by the grandparents of these two teenagers, and by the Kibbutz Be’eri’s Spokesperson.[20]

Second, the New York Times also reported in Screams Without Words that a “woman in the black dress”, Gal Abdush, was raped.[21] Like the allegations of the two teenage girls, this allegation was from only one source –the same Israeli military paramedic.[22] Some of Gal’s family members have denied she was raped and claimed that the New York Times manipulated them into interviewing.[23] Third, Hamas-massacre [dot] net posted an unnamed charred woman alleging she was raped; no evidence from the photo suggests rape according to factcheckers.[24]

Beyond journalists dismissing the New York Time’s negligently sourced piece Screams Without Words, a UN Special Representative, independent factcheckers with transparent methodology, and civil societies have not found evidence to fully corroborate these claims. The U.N. Special Representative of the Secretary-General on Sexual Violence in Conflict visited Israel for two weeks in early 2024.[25] The Representative concluded that there are “reasonable grounds to believe that conflict-related sexual violence occurred in the Nova festival site, Route 232, and kibbutz Re’eim” but that “reported incidents of rape could not be verified in other locations and that “at least two allegations of sexual violence in kibbutz Be’eri—widely reported in the media—were unfounded.”[26] What the report did not say – as many Western outlets negligently misreport—is that there is reasonable grounds “Hamas” committed sexual violence.

The October 7 Factcheck site has been analyzing the claim that that Hamas used mass rape as a weapon of war on October 7.[27] As of March 9, 2024 the only eyewitness accounts so far stem from “unreliable eyewitnesses” that Israeli Police themselves have been unable to corroborate.[28] No released hostages have claimed they were sexually assaulted, but some have claimed others still captive may have suffered sexual assault.[29] In sum, the claim of Hamas using mass rape as a tool of war is not currently supported by corroboration of eyewitness accounts to body descriptions; forensic evidence; or survivor interviews.[30]

Additionally, Civil societies have critiqued these mass rape claims and attempts by the Israeli government to broadcast confessions of such rape. The Israeli Physicians for Human Rights (IPHR) dismissed the interrogation video Israel posted on March 28, 2024–where it claims an “Islamic Jihad Terrorist” admitted to rape on October 7.[31] IPHR found the video uncredible because of the use of torture in the interrogation.[32] The Israel and Palestine Director at Human Rights Watch (HRW), Omar Shakir stated that HRW “does not rely on, nor consider credible, accounts recorded in videos of interrogations of detained Palestinians they say participated in the October 7 assault.”[33]

Finally, HRW investigated for evidence of sexual violence in Israel; less being permitted to interview people at kibbutz Be’eri, the Israeli authorities did not permit HRW to go to other communities or to speak with Israeli law enforcement or military who were at the scene.[34] HRW also confirmed that some videos and photos posted online “were genuine, some spread false news, doctored content, or repeated unverified information[.]”[35] In sum, HRW concluded they were unable to corroborate claims of sexual violence with forensic evidence or interviews with survivors from October 7.[36]

C. As to the Hostage Narrative

Unfortunately, we live in times where captives of combat are seized with regularity to be used as security not of arms, but political exchange. Yes, Palestinians fighters took hostages[37] during the fighting on October 7 in violation of international law.[38] But in this particular sphere of conflict, they are not alone. For decades, Israel has seized, tortured and murdered Palestinians of all age, gender, identity, politics. Ranging from toddlers to children to the frail to the elderly, the one unifying factor among these many thousands of women and men, boys and girls held hostage to the brutality and double standard of Israeli geopolitics is their Palestinian identity and little else.[39]

As noted by B’Tselem [40] before Israel’s most recent, by now, seven-month old attack on Gaza, over the years Israel has seized and detained many thousands of Palestinian civilians in the occupied territories, holding them indefinitely under “administrative detention orders”.[41] As of the eve of the October 7 attack there were “146 Palestinian minors in detention or in prison on what it defined ‘security” grounds.”[42] At that time, the IPS was also holding 34 Palestinian minors (mainly those from Gaza) for being in Israel illegally.[43] According to the Israeli human rights organization HaMoked as of November 1, 2023 the overall number of Palestinians held in various forms of detention was “nearly 7,000 Palestinians from the occupied territory in detention for alleged security offenses … [a]mong those being held are dozens of women and scores of children.”[44]

Since Israel’s invasion of Gaza there are copious reports of thousands of civilians that have disappeared with many taken into custody and removed to Israeli military bases and camps where there are numerous reports of widespread torture, sexual abuse and execution. Several months after the invasion the New York Times reported:

[S]ince the beginning of the Israeli bombardment and ground invasion in Gaza, the Israeli Army arrested hundreds of Palestinians in a barbaric and unprecedented manner and has published pictures and videos showing the inhumane treatment of detainees… A spokesman for the International Committee of the Red Cross, Hisham Mhanna, said his organization received daily reports from families in Gaza about detained family members. The organization is working on some 4,000 cases of Palestinians from Gaza who had vanished, nearly half believed to be detained by the Israeli military.[45]

Not long thereafter The New Yorker reported

We’re currently looking at almost ten thousand Palestinian detainees from the West Bank and Gaza. Of those, we are looking at two groups of concern. The first one consists of more than nine thousand “security” detainees, mostly from the West Bank, who are being held in regular Israeli prisons—not a new phenomenon but one that has changed since the start of the war. That’s an increase of roughly a hundred per cent from normal years. It’s a result of mass-arrest campaigns related to the war.[46]

Additionally, several weeks ago the Middle East Monitor wrote:

Israeli whistleblowers who worked at the Sde Teiman detention facility in the Negev desert [reported] Israeli forces and authorities have been committing numerous human rights violations against Palestinian detainees including physical and psychological torture, the withholding of rights, and medical malpractice such as amputations for injuries caused by constant zip-tying of wrists.[47]

Citing a New York Times story, the Times of Israel recently published news of a finding that some detainees were “beaten, stripped, robbed, blindfolded, sexually abused, and denied access to lawyers and doctors, often for more than a month.”[48] Le Monde reported “[r]esidents of neighborhoods occupied by Israeli troops are subjected to mass arrest campaigns … [where] beatings, bullying and degrading treatment are the norm.” [49] And just days ago Haaretz published that the head of orthopedics at Al-Shifa hospital “Dr. Adnan Al-Bursh [who] was arrested … in the Gaza City [hospital] last December [died] at an Israeli prison four months later. Palestinian detainees who saw him say it was clear he had gone through hell, but the Israeli army and prison service have declined to disclose any details.”[50]

Under settled international law it is clear that those being detained in military or civilian custody, other than designated combatants or those charged with crimes and prosecuted under civilian process, are considered hostages and must be released.[51] Though Ramapo, once again, hand-picks its narrative over who has been victimized, how and why since October 7,[52] others do not:

1,000 Israeli protesters gathered … near the defence headquarters in Tel Aviv, and 100 protesters marched towards Prime Minister Benjamin Netanyahu’s residence with banners reading, “The blood is in your hands.” … Einav Zangauker, whose son is being held captive in Gaza, protested outside the home of a close Netanyahu ally, stating … “If my son Matan pays for the Rafah adventure with his life, Matan’s blood will be on your hands.[53]


D. As to Ignoring Palestinians as Victims

Like boundless Israeli propaganda and Zionist talisman, Ramapo ask this court to consider the events of October 7 in a sculpted vacuum as if Israel, the proverbial victim, is to be mourned and Palestinians who have known nothing but victimization before and since ignored. October 7 was a tragedy to be sure. Yet for generations of Palestinians, it is a heartbreak they have all lived, and died, each and every day for seventy-five plus years. And while it posits no excuse for October 7, this undeniable reality must be considered when determining whether Ramapo’s Israeli flag cheer is the precise kind of controversy to avoid as contemplated more than a hundred years ago when the New York Legislature passed a still binding law prohibiting such partisan spectacles.

If a flag is a symbol, and the town hall is the physical locus of the political unit, then surely the flag flown over the building must abstractly symbolize the polity, the expression of the political community: its shared values, culture and a generally shared narrative of history. The object symbolizes abstract ideas, and operates more or less on community consensus. This may be a straightforward proposition when the flag displayed is the one representing the political unit itself—the county or the state, for example, or the tribe or the nation. The symbol is the reification—to borrow a term from philosophy—of complex vectors of belonging, allegiance and service (both the citizens to the political unit, and vice versa). But when the flag flying belongs to a far-away foreign power, on a different continent, in a land where they speak a different language, its presence on the flagpole of the municipal center of a small New York town now becomes a problem of cognitive dissonance for members of the polity. In the matter at bar, local officials affirm that the Israeli flag flying over the town hall is a gesture of solidarity with and perhaps even “celebration” of Israel. But the events following October 7 make it clear that there is nothing to celebrate—rather, the violent deeds of the nation symbolized by the flag are a matter of profound mourning and dread for many, and even a threat to our life as Americans, and to the communities we live in.

As of this writing, Israel military bombardments have killed more than 35,000 Gazans, with another 77,000 wounded or injured—an astonishing figure of more than 110,000 casualties, which continues to grow daily. Of these, more than seventy percent are women and children. It is estimated that over 13,000 children have been killed in Gaza[54] since October 8, 2023—a figure which is equal to ALL the children killed in conflicts globally over the course of the past four years.[55] It is not known how many thousands more lay buried under rubble and debris[56]—no heavy equipment, machinery, fuel or rescue capacity exists in Gaza presently in order to conduct recovery operations to find the missing, who likely number in the thousands.

More than 10,000 adult women have been killed since the start of the conflict, most of them mothers with dependent children, leaving behind 20,000 orphaned children amid growing, present famine and the destruction of Gaza’s ruined system of relief, a “safety net” funded by western and OPEC nations for decades. At its peak this month, eighty percent (80%) of Gazans were displaced from home, an amount representing 1.8 million people.[57]

United States Secretary of State Blinken indicates[58] that “the entire population” of Gaza now faces “acute” food insecurity, and United Nations General Secretary Antonio Guterres estimates the number of Gazans in “catastrophic” food insecurity at 1.1 million people, or about half of all Gazans.[59] It is estimated that approximately eighty percent (80%) of Gaza’s buildings, roads and infrastructure is destroyed or damaged, including all of its electrical power generation capacity, its drinking water and water treatment (sewage) system, rendering it unlivable for many years to come. Over 350 schools have been destroyed or damaged beyond use since last fall—including 280 government schools and 65 UNRWA schools; fifty-six schools are completely destroyed with nothing left standing. 625,000 children are now out school and will not return to classes anytime in the foreseeable future—this represents 100% of Gaza’s school-age children and teens. Over these past 7 months all of Gaza’s twelve universities have been systematically destroyed by Israeli aerial bombardment and artillery. At least ninety-four university professors (adjuncts, assistant professors and professors) have been killed. Some 231 teachers and university administrators are now dead, with hundreds more wounded. Prevailing analysis now speaks of an entire generation of Palestinian youth who will be “skipped over” in basic education from grammar school through primary and high school, and will have no universities to attend at all.

More than two dozen hospitals have been targeted and bombed by Israeli forces since October, killing over 484 health care workers—doctors, nurses and hospital administrators. The crisis in health care extends from the overwhelming, daily need for emergency triage of people suffering from massive trauma and internal injuries as a result of high explosives and collapsing buildings, to obstetrics for newborns. Only twelve of thirty-six hospitals in Gaza remain partially functioning at all; there are almost 80,000 injured people without care;[60] thirty percent of primary health care facilities of any kind are functional; 761,327 cases of acute respiratory disease are reported, stemming from explosions, fire and dust; half a million cases of diarrhea and bacterial dysenteric infection are reported from lack of drinking water; 90,982 persons are reported with scabies and lice; 54,799 cases of persons with skin rashes (not including burns), probably from chemical exposures in bombed areas; a chickenpox outbreak has swept through temporary camps infecting 8,103 persons; acute jaundice syndrome affects over 61,000 persons and rising.[61] UN reporting notes that psychological help is stressed to the breaking point, in a crisis of psycho-social catastrophe of epic proportions, with 167,000 persons presenting for psychosocial support sessions or intervention in temporary UN camps for internally-displaced persons.[62]

It is estimated by international agencies that the relentless Israeli heavy bombardment and onslaught has destroyed more than 220,000 units of housing, from entire apartment blocks in Gaza City to single homes in more rural areas of the south leaving some 37 million tons of dangerous rubble which will take fourteen years to remove,[63] with 300 kg of rubble per square meter of land in Gaza. Basic infrastructure of drinking water and sanitation have been obliterated by Israeli attacks, too, with Gaza’s main sewage treatment facilities damaged or completely destroyed. An analysis of satellite data of more than 600 water and sanitation facilities—working from a list of locations provided by Gaza’s Coastal Municipalities Water Utility—reveals that more than half of all the facilities are destroyed or off-line and no longer functioning due to bombardment, fire or attacks by Israeli forces.[64] Desalination plants for drinking water are damaged or destroyed, while Israeli supply of piped in drinking water to the north has been blockaded. Electrical supply, too, has completely ceased in Gaza. The Gaza Energy Authority plant has been off-line, with its fuel tanks empty since October 11, due to the Israeli blockade of all deliveries.[65]

In sum a report by the U.S. Department of State presented to Congress on May 10 indicated that it had examined “reasonable” evidence to conclude that its ally had breached international law in its conduct of the war in Gaza and US-supplied arms were used in ways “inconsistent” with Israel’s obligations. The report indicated further “Given Israel’s significant reliance on US-made defense articles, it is reasonable to assess that [they] have been used by Israeli security forces since October 7 in instances inconsistent with its international humanitarian law obligations or with established best practices for mitigating civilian harm.”[66]

ARGUMENT

I. Section 141, Chapter 44 Article 5, § 141 of NY PBB Law

Municipalities are supposed to build bridges, not burn them. Nor is generally protected government speech intended to serve as a surreptitious megaphone to promote private opinion. In Matal v. Tam, Justice Alito famously stated: “[t]his Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” Matal v. Tam, 582 U.S. 218, 219 (2017) (Alito, J.).[67] Recently the Second Circuit noted that “the government speech doctrine [is] susceptible to dangerous misuse.” Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226,239-240(2d Cir. 2019).[68] A lesson Ramapo has apparently missed.[69]

Of course, municipalities have a voice …. A voice that can at times craft tension. Yet tension is a fine line between state opinion and state instigation.[70] And that is a line that Ramapo has crossed here by exalting a foreign flag on municipal property. A line that more than a hundred years ago caused the New York State legislature to pass a law to tamp down on government incitement. A line ignored by Ramapo that has taken a narrowly circumscribed opportunity to officially welcome a state official by a brief show of support and converted it to a long-term and proscribed provocation. What petitioner calls an “esoteric” law[71] has proven to be very much a prescient view long ago of the very kind of municipal incitement that is framed here and now for this court.

To the Hasidic Ultra-Orthodox community, the flag of Israel is the devil’s cape. It represents a 150-year-old secular Zionist movement in its brazen theft of age-old Judaism and its torah tradition, and bespeaks the brutality carried out in its name. Long before the most recent Israeli onslaught against Palestinians, Hasidic Jews have torn down, ripped up and burned that flag. In that display of anger came not the voice of hatred for people, but a principled show of disgust and anguish for that cloth and all the heresy which it represents.[72] As noted by Rabbi Yisroel Dovid Weiss,[73] “By burning the Israeli flag we are symbolically declaring that the Israeli state, contrary to its absurd claims, is not representative of the Jewish people. In fact, its denial of our faith and its brutalization of the Palestinian people, renders it antithetical to Judaism.”[74]

Enmity to the public display of the Israeli flag knows not the limits of place, time or purpose. Recently, in Jerusalem despite facing prison and a costly fine a group of ultra-orthodox Jews marked Israel’s anniversary day by tearing down and burning the flag.[75] Not at all unusual, on another occasion in Jerusalem in 2021 “Ultra-Orthodox Jews, or Haredi’s, burned Israeli flags … while unfurling the Palestinian flag to protest the establishment of Israel.”[76] In Tel Aviv “Ultra-Orthodox Israeli Jews burned flags as they protested attempts to introduce new laws forcing them to enlist in the occupation army against their biblical teachings”.[77] In Antwerp Belgium, “dozens of haredi Orthodox schoolchildren participated in a Lag b’Omer bonfire … that featured the burning of an Israeli flag.”[78] In April of this year an “Orthodox Rabbi was arrested at the annual Al-Quds Day march in London for burning the Israeli flag.[79] Two other Rabbis were arrested for “inciting anti-Semitism.”[80] Recently, “The Montreal police hate-crimes unit … arrested a 16-year-old boy in connection with the burning of Israeli flags taken from a West Island school.”[81]In Spain “an Israeli flag was burned by people taking part in this carnival in the north of Spain, where the government has been openly critical of Israel’s war on Gaza.[82] During argument before the International Court of Justice (ICJ) at the Hague concerning “the legal consequences arising from policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem” a group of protestors burned the flag before the courthouse.[83] Days ago Northwestern University threatened to take action against those who “vandalized” the Israeli and American flags.[84]

While Ramapo apparently sees itself sitting in an isolated doctrinaire bubble unfazed by nationwide anti-Israel protests, members of its Ultra-Orthodox community do not possess any such detachment—having on multiple occasions torn down, taken or shredded the Israeli flag so prominently displayed on local municipal property.[85] Several times a protestor was arrested and charged with a “hate crime.”[86] Yet despite this protest, as well as peaceful demonstrations and a letter and phone campaign by many members of the local Jewish community, Ramapo continues to display the flag entirely indifferent to the will of many of its community members.

Although the Hasidic Ultra-Orthodox community of Ramapo presents a “diversity of thought, at times disagreement … there is near uniform consensus that Israel is a Zionist entity not rooted in the teachings of Judaism nor committed to the practice of its traditions and humanity.”[87] As for the local community, Plaintiff Rabbi Iliovits notes in his declaration:

I have no doubt there are at least 1000 adult residents within the Hasidic Ultra-Orthodox community Ramapo who strongly oppose the municipal government flying/displaying the Israeli flag and fully support my lawsuit. Moreover, based upon my personal interactions and observations there are at least 2 to 3000 people within the local Hasidic community who feel entirely uncomfortable having this flag and what it stands for posted by the Ramapo government whether on its town hall, or now flying it on a flag pole in front of it.[88] In addition, there are thousands of others– perhaps as many 15,000 or more local Jews– who don’t identify themselves in general as supportive of Israel, and would rather stay away from Middle East politics.[89]

The Ultra-Orthodox protestors in Ramapo and its surrounding communities do not stand alone in their well and long-established opposition to the state of Israel and for what it stands.[90] To be sure, condemnation of Israeli policies has multiplied dramatically over these past seven plus months as it has unleashed unprecedented vengeance and violence against a population of more than two million impoverished civilians in Gaza.[91] Indeed, one need not be a soothsayer to understand how age-old tension between Ultra-Orthodox populations and Zionism and Israel has exploded among others of all faiths and polities in communities across the globe, large and small, due to the nationalist savagery unleashed on Gaza.

A. Ramapo’s Adulation of Israel is Impermissible Government Incitement

As of the time of this submission, the Chief Prosecutor of the International Criminal Court (ICC) Karim A. A. Khan has reported that following investigations he asked the ICC to issue arrest warrants for various individuals including Israeli Prime Minister Netanyahu and Defense Minister Yoav Gallant for war crimes and crimes against humanity.[92] Additionally, just days ago in its most recent ruling relating to genocide claims, the ICJ ordered Israel to end its assault on Rafah.[93] Ramapo, no doubt, will ignore this damning application and unless this court intervenes it will continue to pay blind tribute to a state already found “plausibly” responsible for genocide in Gaza by one international tribunal and, most recently, according to the chief prosecutor of another, is led by war criminals.

With utter provocative contempt for reality, throughout its motion to dismiss, Ramapo likes to make use of bold engineered expressions of fact or law. Nowhere are these claims more vulnerable to the parse of reality than with its assertion that as of April 22,2024 “governments and individuals throughout the world [94] and the United States have expressed their solidarity with Israel.”[95] Yet anyone can plainly see the direct opposite has occurred: the popular uprising of activism against Israel’s un-checked mass murder of civilians has been steady, broad, global and local, while support for Israel’s bloody militarism has irrevocably eroded, leading people of conscience to repudiate its narrative around the world. From millions of pro-Palestinian protestors marching every week in the streets of Europe, Asia and America, to a swift and explosive U.S. campus movement that has swept from coast to coast, to everyday New Yorkers throughout the state urging their local officials to oppose Israel’s violence, the story has changed, and no matter how long Ramapo flies the Israeli flag or distorts its support no American will ever look at Israel the same again.

While Ramapo urges business as usual on U.S. campuses, what began with teach-ins and demonstrations has moved on to occupations of campus buildings and greens, and student hunger strikes with thousands of students and faculty arrested during mass police raids accompanied by violent police tactics. All across America demonstrations have led to the suspension of students and faculty, with campuses shuttered, classrooms closed, and graduations cancelled. From America’s top, elite universities—Columbia, Harvard, Yale, the University of Chicago—to the public, state-run and land-grant institutions of the University of California, the Universities of Wisconsin, Michigan, Massachusetts, the response has been an organized student movement gathering momentum, even in the face of violent repression. Police violence has not only been directed at student protestors, but faculty participants or observers as well.[96]

For many months now we have seen tens of thousands of pro-Palestinian anti-Israel protesters students and faculty of all faiths[97] and backgrounds in streets and universities from coast to coast.[98] Nowhere is opposition to Israeli policies more diverse and widespread than it is in New York State. Not surprisingly, although Ramapo has apparently missed the news, what began months ago at Columbia University but thirty miles from Ramapo has since spread throughout the state and across the globe. Although precise figures are still unknown, hundreds of students and faculty have been suspended and arrested throughout New York for demonstrations against Israel including at Columbia, NYU, CUNY, Cornell, and SUNY Purchase and Binghamton and spread to NYC public schools.[99] Many of those arrested reported they were beaten with some taken to local hospitals, and others and denied water and food[100] Others reported that police ripped pro-Palestinian student protesters linking arms away from each other, with reports of police flinging chairs and trash cans and one protester thrown down a stairway.[101] Not long ago at a rally, which drew hundreds of demonstrators, “at least two officers wearing the white shirts of commanders were filmed punching three protesters who were prone in the middle of a crosswalk. One officer had pinned a man to the ground and repeatedly punched him in the ribs.”[102] During one campus raid an officer’s weapon was discharged.[103]

If the Town of Ramapo is now in the business of showing “solidarity” in current events, it has misread the true meaning of Gaza and everything that has happened there, and fails to see that Ramapo is on the wrong side of a movement for justice, and lends its “solidarity” to tyranny, showing contempt to Israel’s victims and to everyone of conscience who opposes this mass murder, such as the Petitioners in the matter at bar.

B. The Court Must Consider All the Surrounding Circumstances

In litigation, because setting is everything “words must be read and interpreted in their context, not in isolation.” Southwest Airlines Co. v. Saxon, 142 S. Ct. 1783, 1788 (2022). Like the courtroom, in life, situation speaks volumes about ultimate decisions. And when as here this Court is faced with construing statutory intent and application to real-time and real-place, one cannot ignore profound circumstances here and now which mirror concerns raised well more than a hundred years ago in Section141, Chapter 44, Article 5 of the New York Public Buildings (PBB) law. Then it was fear of partisan instigation …. now domestic upheaval arising from outrage over genocide abroad.[104] Understandably, of necessity, Ramapo sees the issue before this Court as but a tapered debate, one entirely removed from the essential “context” of the overall controversy. Arguing a narrow almost suffocated interpretation of the applicable law, Ramapo posits it has generally met, albeit belatedly,[105] the exception requirements of the New York law that otherwise clearly bans flying a foreign flag on municipal property. It has not.

No less important, in this deflection Ramapo ignores the reality of just what touting the Israeli flag in the midst of domestic upheaval, against Israel, already well past explosive throughout New York state, adds to that nearly unprecedented disorder, and in particular to the very local community it is sworn to represent. As so much “flipping the bird,” at the very moment when the United Nations General Assembly held a vote on admitting Palestine to the General Assembly as a fully recognized state, Ramapo says to thousands of its local Ultra-Orthodox Jewish community, and others, we do not care what you say or how you feel… we have chosen to take sides with Israel over Palestine no matter what the law or what the costs, or what the pain to you or to others. Indeed, in its thirst to score cheap, but clearly divisive, political points by flying the Israeli flag, Ramapo has missed what so many in and outside the United States including Israelis have not.

No matter how well posited or rationalized away, flying the Israeli flag violates Section141, Chapter 44, Article 5 of the New York Public Buildings (PBB) law and constitutes a flagrant fundamental breach of Ramapo’s obligation to fulfill its side of the social compact under which “the whole people covenant with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”[106]

II. Under New York State Law the Flag Must be Removed.

It is glaringly obvious what happened here. With the zeal of Pope Urban II and the first crusaders, Ramapo jumped to show solidarity with the State of Israel post October 7 by displaying an Israeli flag on a public building, oblivious to the prohibition of such practice in New York’ s Public Buildings Law. When the prohibition was brought to the Town’s attention, rather than follow the law and take the flag down like other municipalities did,[107] Ramapo embarked on a journey down a tortured pathway of obfuscation and 11th hour remediation finally reaching the farcical justification that only high-powered legal talent can provide. But, notwithstanding all of the legal legerdemain on display in the town’s papers the nettle of their position remains: the Town of Ramapo is going to display the Israeli flag on Town property and no “small percentage of the population”[108] will stand in the way; no “19th century, esoteric” statute passed in Albany will stop it; and no court will be given the opportunity to scrutinize the Town’s decision.

A. Ramapo’s Violation of The NY PBB Law Is Not Cured

The Town says the case is moot because the violation of section 141 has been cured and Plaintiff asks only for prospective relief. Of course, one obvious answer to remedy the Town’s mootness claim is for Plaintiff to demand money damages. This case has never been about money but if the Town persists in claiming that seeking only prospective relief renders the case moot, Plaintiff will oblige and seek money damages.

Of course, that should not be necessary because the case is not moot. Plaintiff maintains that displaying the Israeli flag on municipal property violates Public Buildings Law section 141. If the court agrees with Plaintiff’s plain reading of the statute, Ramapo has violated and is violating State law. If the court agrees with the Town’s narrow construction that a flag displayed on the building is prohibited but a flag displayed on the pole in front of that same building is not or if the court agrees with the Town’s expansive read of the proclamation exception, the Town will prevail. But none of that can or should be done on a motion to dismiss based on mootness. Plaintiff wants the Israeli flag taken down and is asking this court to order the Town to do so. The Town refuses. Depending on how the court rules, there will be real consequences for the litigants. Clearly, there is a live controversy here.[109]

Ramapo maintains that the Plaintiff is not the intended beneficiary of Public Buildings Law, section 141 and is therefore unworthy of its protection. The Town says the Plaintiff is the wrong person to seek a court ruling requiring Ramapo to comply with the law. If not Plaintiff; who? Who will hold the Town to account? Law enforcement, the Town Attorney, the supposed majority the Town is placating? Not bloody likely. There is no one else. So, when Ramapo says private citizen constituents cannot sue to enforce the statute, what they are really saying is the courts have no business second guessing the Town’s decisions. Like all other citizens, Plaintiff has the right to a government that follows the law; that does not place itself above the law. But a right without a remedy is no right at all. No less a jurist than Chief Justice John Marshall said it in the seminal case interpreting our Constitution. “It is a settled and invariable principle that every right, when withheld, must have a remedy.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803)(citing 3 WILLIAM BLACKSTONE, COMMENTARIES *109).[110]

We hear and read a lot about the ‘rule of law’ these days. How we are a nation of laws, not “men”. How no person or institution is above the law. These enduring principles become mere platitudes if the Town of Ramapo is allowed to act without the check of the judiciary. If the court house door is closed to Plaintiff, that is exactly what will happen. As Justice Felix Frankfurter reminded us in United Mine Workers, “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” United States v. United Mine Workers, 330 U.S. 258 (1947).[111]

B. The NY PBB Law Was Not Intended to Promote Patriotism

As is true with most of its argument, the Town starts from a faulty premise. Ramapo claims the statute was intended to promote patriotism and that the Plaintiff can point to no particular harm caused by Ramapo’s alleged failure to comply with the law. This is nonsense. Plaintiff is specifically harmed by Ramapo’s display of the Israeli flag.[112]The law was not intended to promote American patriotism; it was intended to prevent the State and its municipalities from stirring the passions of the citizenry by choosing sides in foreign disputes. This is precisely what Ramapo has done for months now and Plaintiff, who holds a firm but minority position on the legitimacy of the State of Israel, but is not in the minority when it comes to protesting Israel’s merciless attacks on Gaza since October,[113] is the exact person who deserves and needs the statute’s protection.

C. The NY PBB Law Was Meant To Keep Official From Selecting Viewpoints For The Public On Foreign Affairs

The Town does not attempt to parse the New York Public Buildings Law. Nor does it offer any legislative history of the New York law. Instead, the Town relies on tertiary treatment of statutes from other states. Out of this thin gruel Ramapo concocts the rich stew that section 141 was enacted to “promote patriotism” and “respect for the U.S. flag”. Nowhere is this speculative fantasy borne out- not in the text of section 141 which never mentions the U.S. flag nor in the legislative debate attendant to the law’s passage. Section 141 says nothing about flying the U.S. flag; it prohibits flying foreign flags. The genesis of the law was not to promote American patriotism but to prohibit the New York City Mayor from flying the Irish flag over City Hall on Saint Patrick’s Day. Ex-Speaker George Roland Malby, the main proponent of the legislation, is reported to have “denounced in most emphatic language the display of foreign flags on public buildings. He said the exhibition of the Irish flag on the New York City Hall on Saint Patrick’s Day and the exclusion of all other foreign flags in anniversary celebrations was a disgrace to the State and the county.”[114]

So, the Town and its attorneys have it all wrong. The Legislature prohibited the flying of all foreign flags not only because the New York City Mayor flew the Irish flag and thereby stirred the enmity of the City’s newest Irish arrivals for their British overlords; but he compounded the insult, by refusing to fly the Union Jack on Saint George’s Day.[115] To be sure, the law was intended to keep the Mayor and the Irish in their place,[116] but it also was intended to keep New York’s mayors and other local officials from choosing sides in foreign disputes thereby bringing that strife to American shores.

The characterization of the law as 19th century and esoteric smacks of, but does not quite say, that Ramapo should be free to ignore this 1895 statute because it has not been regularly enforced or construed in its long life. This line of reasoning, however subtle, must be roundly rejected as it violates the desuetude canon.[117]

It shall not be lawful to display the flag or emblem of any foreign country upon any state, county or municipal building; provided, however, that whenever any foreigner shall become the guest of the United States, the state or any city, upon public proclamation by the governor or mayor of such city, the flag of the country of which such public guest shall be a citizen may be displayed upon such public buildings. N.Y. Public Buildings Law, section 141.

Five simple, straightforward lines. First, the Town denigrates the statute as “19th century and esoteric.” Next, Ramapo construes Section 141’s general prohibition so narrowly it almost disappears. Then, the Town finishes the decimation by reading the proclamation exception so broadly it easily swallows what is left of the general prohibition in a single bite. Only mystic word-slingers could twist these five simple lines into the absurdity the Town posits. Namely, that the State Legislature went to the trouble of passing a law prohibiting the display of a foreign flag on a municipal building, but it did not intend to prohibit displaying the same flag on a flagpole in front of the building. In their mangling of the text and avoidance of the law’s obvious intent, Ramapo violates at least three canons of statutory construction and hint at running afoul of a fourth.

The Town is guilty of ignoring the most basic canon of statutory construction. It does not read the statute as a whole. The cardinal rule of construction is that the whole statute should be drawn upon as necessary, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes. Statutory construction … is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.[118] Ramapo takes out of context a single word in the statute to justify their continued display of the Israeli flag. The statute prohibits the display of foreign flags upon municipal buildings. Ramapo seizes on the word ‘upon’; wrests it from its natural context; and, voila, we get the following conclusion: foreign flags may not be displayed on or upon a municipal building, but those same flags can be displayed on a municipal flagpole adjacent to the building. Not only does this absurd result fail to further the statute’s overall purpose; it actually undermines that purpose. This is not a flag protocol rule like the law that says the U.S. flag must be elevated above all others. This is a statute prohibiting display. It is the display of the foreign flag on municipal property that is prohibited not the method of display. In common experience, are not flags flown on or above buildings on poles? As the town would have it, a foreign flag flown on a flagpole attached to a municipal building would be prohibited but the same flag flown on the same flagpole which is adjacent to the building would escape the statute’s reach. The law does not deal with such trifles.[119]

As an exception to the statute’s general prohibition, the proclamation proviso must be read narrowly. Where “a general statement of policy is qualified by an exception,” the Supreme Court “usually read[s] the exception narrowly in order to preserve the primary operation of the provision.” Comm’r v. Clark, 489 U.S. 726, 739 (1989).[120] Instead, the Town interprets the exception so broadly it devours the general rule. The statute specifies that a foreign flag can be flown only when the Governor or Mayor issues a proclamation to honor a foreign guest of the State or a city. Ramapo claims that the Town Supervisor’s proclamation recognizing distant relatives of Israeli hostages who happen to reside or are visiting others in Ramapo satisfies the exception and justifies the flying of the Israeli flag, not for a day or two, but for months. The absurdity of the Town’s interpretation is manifest. Saying that the Town Supervisor is the same as the Governor or a Mayor is like saying a dog is a mule because they both have four legs. If in 1895, or anytime thereafter, the Legislature wanted to grant a Town Supervisor the authority to issue a proclamation to fly a foreign flag it could have done so. The Legislature has had 129years to include Town Supervisors; it has not. It is beyond audacious, for the Town to expect this court to do what the Legislature has chosen not to. Moreover, the 11th hour, slipshod proclamation issued by the Supervisor does not satisfy the statutory exception in any event. The statute clearly states that the honored person must be a guest of the State or city; not, as the Town would have it, guests in the State or city. The person must be a “public guest” not merely a guest of a private person who happens to live in Ramapo. It takes little imagination to see where the Town’s interpretation leads -any municipal ‘executive’ could issue a proclamation honoring any foreign person who happens to be residing or visiting the municipality. Thus, the exception swallows the rule.

II. Flying the Israeli Flag Violates the US and NY Constitutions

A. The Standard of Review for Defendant’s Motion to Dismiss Plaintiff’s Constitutional Claims

In considering Ramapo’s application to dismiss the constitutional[121] claims of Rabbi Iliovits, this court must proceed from the settled judicial premise that “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). Under this standard of review Defendants’ motion to dismiss Plaintiff’s constitutional claims must be denied.

B. Plaintiff’s Constitutional Claims Should Survive the Motion to Dismiss

The defendants’ purported motion to dismiss actually asks this Court to resolve disputed fact issues in their favor—then relies purely on hearsay evidence to do so. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Rupp v. City of Buffalo, 91 F.4th 623, 634 (2d Cir. 2024) ; Francis v. Keane, 888 F. Supp. 568, 575 (S.D.N.Y. 1995) (A “fact issue with respect to whether the defendants used the least restrictive means precluded summary judgement on inmate’s free exercise claim under RFRA”); Ruggiero v. City of Cortland, No. 5:17-CV-790, 2019 U.S. Dist. LEXIS 74936, at *17 (N.D.N.Y. May 3, 2019) (“Ruggiero’s First Amendment retaliation claim and his related Fourteenth Amendment Equal Protection selective enforcement claim will remain for discovery”).

Defendants’ submission on their motion of hearsay documents such as unauthenticated letters and newspaper articles confirms this inappropriate strategy. “Under these circumstances, the defendants were not entitled to dismissal pursuant to CPLR 3211 (a) (1) since the documentary evidence submitted by them failed to utterly refute the plaintiff’s factual allegations and conclusively establish a defense as a matter of law.” Gordon v. Boyd, 945 N.Y.S.2d 741, 743 (1st Dept. 2012); Fontanetta v. John Doe 1, 898 N.Y.S.2d 569, 575 (2nd Dept. 2010) (“[L]etters did not constitute documentary evidence under CPLR 3211 (a) (1)”); Commissioners of the State v. Perfect Courier, Ltd., 2016 NY Slip Op 30780(U), ¶ 5 (Sup. Ct. NY County 2016)(A “newspaper article [did not] constitute documentary evidence).

The relative sensibilities and disagreements of the town’s communities with regard to Israel, in particular its two most distinct Jewish communities,[122]and the defendants’ knowledge, are fact issues this Court should not resolve on a motion to dismiss, but which must be elucidated in discovery. “When knowledge of facts is necessary for a party to properly oppose a motion to dismiss, and those facts are within the sole knowledge or possession of the movant, discovery is sanctioned if it has been demonstrated that such facts may exist.” Cantor v. Levine, 495 N.Y.S.2d 690, 691 (2nd Dept. 1985); G.E. Capital Commercial Fin. Bus. Prop. v. Erba Food Prods., Inc., 836 N.Y.S.2d 498, 498 (Sup. Ct. Kings County 2007)(“It is axiomatic that the Court may hold a motion to dismiss in abeyance pending further discovery (see e.g. CPLR 3211 [d]”).

C. Plaintiff Has Demonstrated He Is A Member of The Affected Class

As another threshold matter, Defendants’ claim that Plaintiff as a Town resident and Satmar Hasidic Jew was not personally harmed by their actions is ill taken, as the Complaint clearly states that he is “a member of the affected class.” Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 335 (3d Cir. 1995).[123]

Similarly, Defendants’ gleaning of the Complaint for references to gatherings and discussions as proof that their freedom of association was not chilled is a non sequitur, analogous to claiming that the number of people arrested by police at a Black Lives Matter demonstration was not significant enough to prove a lack of harm to First Amendment rights. In re N.Y.C. Policing During Summer 2020 Demonstrations, 548 F. Supp. 3d 383, 392 (S.D.N.Y. 2021) (“On May 28, 2020, three days after George Floyd was killed by a police officer in Minneapolis, Minnesota, the first large-scale demonstration protesting police brutality erupted in New York City. Over 100 protesters gathered in Union Square in Manhattan, some of whom marched in the direction of City Hall. That day, over 70 protesters were arrested”).[124]

D. The Government Speech Doctrine Does Not Apply

The Defendants’ claim that the Israeli flag constituted protected “government speech” is ill taken. The “government speech” doctrine is typically used to defend the proposition that the speech need not be inclusive of all viewpoints; for example, a municipality flying an American flag may not be required by a resident to fly an Israeli flag. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015) (“How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary?”). A Town’s decision to fly a Nazi or KKK flag over town hall would not be immunized by the government speech doctrine; neither, given the known intense distress inflicted by this choice on the Satmar community, is the choice to fly an Israeli flag. Shurtleff v. City of Bos., 596 U.S. 243 (2022)(“Boston’s flag-raising program does not express government speech”); Pleasant Grove City v. Summum, 555 U.S. 460, 482 (2009) (“[R]ecognizing permanent displays on public property as government speech will not give the government free license to communicate offensive or partisan messages”); Wooley v. Maynard, 430 U.S. 705, 715 (1977) (“The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable”); Wandering Dago, Inc. v. Destito, 879 F.3d 20, 24 (2d Cir. 2018) (“[S]such an action amounts to viewpoint discrimination and is prohibited by the First Amendment”). To be sure, a flag communicating a hateful message can create a hostile and discriminatory environment. Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928, 931 (10th Cir. 2003)(“Caucasian males were allowed to wear T- shirts adorned with the confederate flag in violation of the dress code prohibiting offensive and disruptive clothing”).

Plaintiff has sufficiently alleged harm in his Complaint, including the intense stress and distress caused the Satmar community by the sight of the Israeli flag, and the reluctance it caused to enter or congregate in sight of Town Hall. However, the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Agudath Isr. v. Cuomo, 983 F.3d 620, 636 (2d Cir. 2020), quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); Uhlfelder v. Weinshall, 810 N.Y.S.2d 275, 282 (Sup. Ct., NY County 2005), affirmed, 47 A.D.3d 169 (1st Dept. 2007) (“[V]iolations of First Amendment rights are commonly considered de facto irreparable injuries”).

Rabbi Iliovits is alleging that the Defendants are deliberately making the Satmar community feel unwelcome, which the First and Fourteenth Amendments do not permit. Floyd v. City of N.Y., 959 F. Supp. 2d 540, 557 (S.D.N.Y. 2013) (“Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders”); White-Ruiz v. City of N.Y., 983 F. Supp. 365, 386 (S.D.N.Y. 1997) (“[T]hroughout the plaintiff’s tenure at the 90th Precinct, at least until April 1994, she was isolated to a degree, [and] deliberately made to feel unwelcome”); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1111 (10th Cir. 2004)([S]everal African-American ministers wrote letters to the Mayor and the press suggesting that Mayor Baca had effectively alienated the African-American community and made them feel unwelcome”).

Defendants’ assertion that the Establishment Clause is not implicated here is directly belied by Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 418 (2d Cir. 2002), cert. den. 537 U.S. 1187 (2003) in which the Court found that an otherwise secular law, pertaining to butchering methods, actually privileged Orthodox Jewish ways over those of other Jewish groups (the complaint asserted that “the challenged laws violate the Establishment Clause of the First Amendment by defining kosher to mean food that is prepared in accordance with the orthodox Hebrew religious requirements”). Similarly (and again, this is a fact issue, not to be determined now), the Town’s willful display of an Israeli flag injuriously privileged another Jewish groups religious beliefs over the Satmars (both of whom derive their beliefs about Israel from tenets of their faith, the same source of the rules about butchering held by the two Jewish groups in Commack).

The motion to dismiss the First Amendment and Art. I claims should be denied.

This is the original memorandum which had to be reduced in size by use of exhibits/affidavits when the court agreeing with opposing counsel refused a request to expand the permissible word limit.

Notes.

[1] Son of a world-renowned biblical scholar, for almost sixty years Yeshayahu Leibowitz was a professor of biochemistry, organic chemistry, neurophysiology and philosophy at the Hebrew University of Jerusalem and a prolific writer on Jewish thought, western philosophy who authored numerous books on philosophy, human values, Jewish thought, and politics and the teachings of Maimonides. See generally, Yeshayahu Leibowitz, https://plato.stanford.edu/entries/leibowitz-yeshayahu/.

[2] Maverick Israeli Professor Gives Up State Prize amid Flap, Washington Post (Jan. 25, 1993), https://www.washingtonpost.com/archive/politics/1993/01/25/maverick-israeli-professor-gives-up-state-prize-amid-flap/f0890de2-e571-454d-b1e5-a835932e060e/.

[3] Yeshayahu Leibowitz: Prophet of Wrath, Harbinger of the Future, Haaretz (Mar. 13, 2023), https://www.haaretz.com/2013-03-13/ty-article/.premium/prophet-of-wrath-harbinger-of-the-future/0000017f-e371-d38f-a57f-e77353790000

[4] Id.

[5] Chomsky echoes prominent Israeli, warns of the rise of ‘Judeo-Nazi tendencies’ in Israel, Middle East Monitor (Nov. 12, 2018), https://www.middleeastmonitor.com/20181112-chomsky-echoes-prominent-israeli-warns-of-the-rise-of-judeo-nazi-tendencies-in-israel/.

[6] Op-Ed: Flags are great for holiday celebration, but hyper-patriotism is un-American, LA Times (July 1, 2016), https://www.latimes.com/opinion/op-ed/la-oe-oppenheimer-flags-july-4-20160701-snap-story.html. In his recent opinion piece Flags are great for holiday celebration, but hyper-patriotism is un-American, highly respected writer and philosopher Mark Oppenheimer, who holds a Ph.D. in religious studies from Yale, and has taught at Stanford, Wesleyan, Wellesley, NYU, Boston College, and Yale, and who has authored five books and numerous columns including about religion in The New York Times, The New Yorker, The Nation, GQ, Slate, The Wall Street Journal and created Unorthodox, a popular podcast about Jewish life and culture observed the Leibowitz “rag on a pole is often reworded, in a wonderful Yinglish (that’s Yiddish/English) saying, as ‘a schmatte on a stick’ — a phrase that really gets at the absurdity of venerating a piece of fabric.” Id.



[7] As noted, after being torn down several times from the face of its municipal building, the Israeli flag was moved to a flag pole sitting on municipal property. See Motion to Dismiss, p. 2 at ¶ 2.

[8] Understandably, flags of all voice are seen by many as a symbol of oppression. Some seventy years ago W. E. B. Du Bois wrote, “To me, naturally, the stars and bars of the Confederacy are more than insult, they are threat, because they signify the slavery of four million Negro slaves whose descendant’s number 15-million second class citizens today.” Confederate Flag Removed from South Carolina State House, EJI (July 15, 2015), https://eji.org/news/confederate-flag-removed-from-south-carolina-state-house/; Referring to the American flag Nebraska State Senator Ernie Chambers called it “a rag which he has done before at the unicameral. He said, Senator Groene wants to talk about the meaning of respect. What do white people mean by it and what do black people mean by it? White people mean we’ve gotta bow down to what they tell us as black people to bow down to. I don’t come here for this rag every day, and it’s a rag.” Emotional response at the unicameral after American flag referred to as “a rag”, KMTV (Feb. 21, 2019), https://www.3newsnow.com/news/local-news/emotional-response-at-the-unicameral-after-sen-chambers-refers-to-the-american-flag-as-a-rag.

[9] See, annexed hereto as Exhibit A, Declaration of Leibish Iliovits (“Iliovits Decl.) , at p. 4, fn. 1.

[10] As noted in his sworn-to declaration, Rabbi Iliovits and his ultra-Orthodox community is committed to facilitating “peace, justice and humanity among all peoples including Palestinians long attacked and suppressed at the hands of Israel- a place that [they] do not recognize as a legitimate state, let alone as the voice of Judaism.” Iliovits Decl., at p. 1 at ¶ 5.

[11] Diverse backgrounds give way to shared fate as Gaza friendly-fire victims eulogized, Times of Israel (May 17, 2024), https://www.timesofisrael.com/diverse-backgrounds-give-way-to-shared-fate-as-gaza-friendly-fire-victims-eulogized/; see also, Israeli Apache helicopters killed own soldiers, civilians on 7 October: Report, The Creadle (Nov. 9, 2023), https://thecradle.co/articles-id/11993 (citing a report by the Hebrew language Israeli newspaper Yedioth Ahronoth that after responding to the area of the Hamas attack “twenty-eight Israeli combat helicopters fired all of the ammunition they were holding, including hundreds of 30 mm cannon shells and Hellfire missiles, during the day… Later the Commander of the Israeli air squadron “instructed the other pilots “to shoot at everything they see in the fence area.” Reports further indicate that “the same commander at one point attacked an Israeli military post with besieged soldiers inside … and opened fire near houses in a kibbutz [and that] “in the first four hours from the start of the fighting, helicopters and fighter jets attacked about 300 targets, most of them in Israeli territory.”).

[12] See Israeli army says it does not have ‘confirmation’ about allegations that ‘Hamas beheaded babies’, AA.com (Oct. 10, 2023), https://www.aa.com.tr/en/middle-east/israeli-army-says-it-does-not-have-confirmation-about-allegations-that-hamas-beheaded-babies-/3014787#.

[13] See Israeli official says government cannot confirm babies were beheaded in Hamas attack, CNN (Oct. 12, 2023), https://www.cnn.com/2023/10/12/middleeast/israel-hamas-beheading-claims-intl/index.html.

[14] Id.

[15] See generally, Israel-Palestine war: How unverified reports of Hamas ‘beheading babies’ filled front pages, Middle East Eye, (Oct. 11, 2023), https://www.middleeasteye.net/news/israel-palestine-war-beheading-babies-how-unverified-reports-hamas-killings-filled-front-pages(referring to UK News Headlines about beheaded babies the Centre for Media Monitoring (CfMM) reported “The most shared article on the @MailOnline website is unverified and possibly fake news. Why is the most visited news website in the world acting as a proxy for #Israeli propaganda? #notjournalism.” Later in that same article it is noted that Oren Ziv, a journalist with +972 Magazine, an independent Israeli based news outlet that covers Israeli/Palestinian news and who visited the sites of the attack reported “During the tour, we didn’t see any evidence of this [beheaded babies] and the army spokesperson or commanders also didn’t mention any such incidents. He concluded by noting “Journalists were allowed to speak with hundreds of soldiers at the kibbutz without the supervision of the army’s spokesperson team, but none he spoke with mentioned beheaded babies.”)

[16] ‘Screams Without Words’: How Hamas Weaponized Sexual Violence on Oct. 7, NY Times (Dec. 28, 2023), https://www.nytimes.com/2023/12/28/world/middleeast/oct-7-attacks-hamas-israel-sexual-violence.html.

[17] Israeli “commission” on 7 October rape claims exposed as fraud, Electronic Intifada (Mar. 25, 2024), https://electronicintifada.net/content/israeli-commission-7-october-rape-claims-exposed-fraud/45401 (citing NY Times Screams Without Words piece). Note, the Associated Press, CNN, and the Washington Post all used the same “military paramedic” as their source.

[18] Id. See also Israeli Soldier’s Video Undercuts Medic’s Account of Sexual

Assault, NY Times (Mar. 25, 2024), https://www.nytimes.com/2024/03/25/world/middleeast/video-sexual- assault-israel-kibbutz-hamas.html.

[19] Id.

[20] Id.

[21] Kibbutz Be’eri Rejects Story in New York Times October 7 Expose:

“They were not sexually abused”, Intercept (March 4, 2024), https://theintercept.com/2024/03/04/nyt-

october-7-sexual-violence-kibbutz-beeri/.

[22] Id.

[23] Claim: Hamas used rape as a weapon of war on October 7, October 7 Factcheck, https://www.oct7factcheck.com/sexual-violence (last updated Mar. 9, 2024).

[24] Id.

[25] United Nations, Reasonable Grounds to Believe Conflict-Related Sexual Violence Occurred in Israel During 7 October Attacks, Senior UN Official Tells Security Council, (March 11, 2024), https://press.un.org/en/2024/sc15621.doc.htm.

[26] Id.

[27] October 7 Factcheck, supra note 23.

[28] Id.

[29] Id.

[30] Id.

[31] Position Paper Sexual & Gender Based Violence As a Weapon of War, Physicians For Human Rights (Nov. 2023), https://www.phr.org.il/wp-content/uploads/2023/11/5771_Sexual_Violence_paper_Eng-final.pdf.

[32] Id.

[33] War on Gaza: Israel likely tortured Palestinian to record rape confession, say rights groups, Middle East Eye (Mar. 29, 2024), https://www.middleeasteye.net/news/gaza-israel-war-likely-tortured-palestinian-rape-confession-rights-groups.

[34] Interview: Building the Evidence for Crimes Committed in Israel on October 7, Human Rights Watch (Jan. 31, 2024), https://www.hrw.org/news/2024/01/31/interview-building-

evidence-crimes-committed-israel-october-7.

[35] Id.

[36] Id.

[37] The word “hostage” has a definition under international humanitarian law (IHL): they are persons, irrespective of status (civilian, combatant, etc.) that have (1) been detained (2) under circumstances which death, injury, or continued unlawful detention is threatened, and (3) to compel a third party to do some act in order to release the hostage. Hostages, ICRC, https://casebook.icrc.org/a_to_z/glossary/hostages(citing Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 34, 147, Aug. 12, 1949, 75 U.N.T.S. 287).

[38] Although Respondents claim that “hundreds of … innocents—from infants to elderly grandparents” —were forcibly abducted from their homes and taken hostage on October 7 (see Respondent’s Memorandum of law, p. 1 at ¶ 2, emphasis provided) the precise number of those taken remains unknown and everchanging. See BBC Elyakim Libman: Remains of man thought to be Hamas hostage found in Israel, BBC (May 3, 2024), https://www.bbc.com/news/world-middle-east-68953413; See also U.S.-Israeli citizen believed to be held hostage confirmed killed in Oct. 7 Hamas attack, Spectrum News (March 12, 2024), https://ny1.com/nyc/all-boroughs/news/2024/03/12/u-s–israeli-citizen-itay-chen-killed-in-oct–7-hamas-attack; See also American Thought To Be Hostage Was Killed During Hamas’ October Attack, VOA News Middle East (Dec. 28, 2023), https://www.voanews.com/a/american-thought-to-be-hostage-was-killed-during-hamas-october-attack-/7416541.html; See also Peace activist Vivian Silver, thought taken captive, confirmed killed by Hamas, Times of Israel (Nov. 14, 2023), https://www.timesofisrael.com/vivian-silver-thought-to-be-taken-captive-from-beeri-confirmed-killed-by-hamas/. Moreover, among those removed to Gaza were apparently dozens of soldiers, reservists, police, security personnel and armed settlers. See What to know about the hostages still held by Hamas, NPR WSKG (Nov. 28, 2023), https://www.npr.org/2023/11/28/1215353901/hostages-hamas-israel-gaza-palestinian-prisoners. These captives are not considered to be ‘innocent’ civilians for purposes of the law of war. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, for the distinction between “military objectives” versus “civilians” wherein the customary law of combat includes combatants, whether on or off duty, and objects whose capture or destruction offer a definite military advantage and whose capture or destruction offer a definite military advantage. Id. at 283, 283 n.188 (citing and referring first to AP I, Art. 52(2)).

[39] Although the 2023 U.S. State Department Report, Country Reports on Human Rights Practices: Israel, West Bank and GazaExecutive Summary provides a damning picture of all parties, Respondents seek to portray Israel as the sole victim. See, however, point 3 in that Executive Summary, which sheds a different balanced light: “With respect to Israeli security forces in the Occupied Palestinian Territories: arbitrary or unlawful killings; enforced disappearance; torture or cruel, inhuman, or degrading treatment or punishment; harsh and life-threatening prison or detention conditions; arbitrary arrest or detention; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offenses by a relative; serious abuses in a conflict, including widespread civilian deaths or harm, enforced disappearances or abductions, forcible transfers of civilian populations, torture, physical abuses, conflict-related sexual violence or punishment; serious restrictions on freedom of expression and media freedom, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, and censorship; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental and civil society organizations; restrictions on freedom of movement and residence and on the right to leave the occupied territories; serious government restrictions on or harassment of domestic and international human rights organizations; and crimes involving violence or threats of violence targeting Palestinians.” U.S. Dept. State, 2023 Country Reports on Human Rights Practices: Israel, West Bank and Gaza, ( https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/israel-west-bank-and-gaza/west-bank-and-gaza/;See also Prisoners Support and Human Rights Association, Addameer, https://www.addameer.org/advocacy/briefings_papers/general-briefing-palestinian-political-prisoners-israeli-prisons-0.

[40] B’Tselem is the highly respected “Israeli Information Center for Human Rights in the Occupied Territories [which] strives for a future in which human rights, liberty and equality are guaranteed to all people, Palestinian and Jewish alike”. See About, B’Tselem,https://www.btselem.org/about_btselem.

[41] See Administrative Detention, B’Tselem, https://www.btselem.org/administrative_detention. Under administrative detention, “a person is held without trial without having committed an offense, on the grounds that he or she plans to break the law in the future. As this measure is supposed to be preventive, it has no time limit. The person is detained without legal proceedings, by order of the regional military commander, based on classified evidence that is not revealed to them. This leaves the detainees helpless – facing unknown allegations with no way to disprove them, not knowing when they will be released, and without being charged, tried or convicted … [A detention] Order … places no limit on the overall time that a person can be held in administrative detention, so the detention can be extended over and over. In practice, this allows Israel to incarcerate Palestinians who have not been convicted of anything for years on end.” Id. To deny these thousands of administrative detainees’ “hostage” status under international law, is very much a difference without distinction. See, Why some advocates say all Palestinians detained in Israel are political prisoners, CBC Radio, https://www.cbc.ca/radio/asithappens/palestinian-prisoners-advocate-1.7042697.

[42] Although there is disagreement over the number of Palestinians held in administrative detention, just prior to Oct. 7 B’Tselem was able to verify that “At the end of September 2023, the Israel Prison Service (IPS) was holding 1,310 Palestinians in administrative detention. B’Tselem, supra note 41.

[43] Statistics; Minors in Custody, B’Tselem, https://www.btselem.org/statistics/minors_in_custody.

[44] See Why Does Israel Have So Many Palestinians in Detention and Available to Swap?, Human Rights Watch (Nov. 29, 2023), https://www.hrw.org/news/2023/11/29/why-does-israel-have-so-many-palestinians-detention-and-available-swap. See also Israel/OPT: Horrifying cases of torture and degrading treatment of Palestinian detainees amid spike in arbitrary arrests, Amnesty International,https://www.amnesty.org/en/latest/news/2023/11/israel-opt-horrifying-cases-of-torture-and-degrading-treatment-of-palestinian-detainees-amid-spike-in-arbitrary-arrests/.

[45] Stripped, Beaten or Vanished: Israel’s Treatment of Gaza Detainees Raises Alarm, NY Times (Jan. 23, 2024)https://www.nytimes.com/2024/01/23/world/middleeast/israel-gaza-palestinian-detainees.html; See also In Israeli army camps, Gazan detainees subjected to torture and degrading treatment, ReliefWeb (Jan. 7, 2024), https://reliefweb.int/report/occupied-palestinian-territory/israeli-army-camps-gazan-detainees-subjected-torture-and-degrading-treatment-enar.

[46] See The Brutal Conditions Facing Palestinian Prisoners, New Yorker (Mar. 21, 2024), https://www.newyorker.com/news/q-and-a/the-brutal-conditions-facing-palestinian-prisoners.

[47] See, Israel whistleblowers reveal torture, abuse of Palestinian detainees at desert facility , Middle East Monitor (May 12, 2024), https://www.middleeastmonitor.com/20240512-israel-whistleblowers-reveal-torture-abuse-of-palestinian-detainees-at-desert-facility/.

[48] See UNRWA said to accuse Israel of abusing Gazan detainees, Times of Israel (Mar. 4, 2024), https://www.timesofisrael.com/unrwa-said-to-accuse-israel-of-abusing-gazan-detainees/

[49] See Gazan civilians arrested by Israel share torment of disappearances, humiliations and torture, LeMonde (Jan. 18, 2024), https://www.lemonde.fr/en/international/article/2024/01/18/gazan-civilians-arrested-by-israel-share-torment-of-disappearances-humiliations-and-torture_6443611_4.html.

[50] A Senior Gazan Doctor Died During Israeli Detention. Officials Refuse to Explain How , Haaretz (May 12, 2024),https://www.haaretz.com/israel-news/2024-05-12/ty-article/.premium/a-senior-gazan-doctor-died-during-israeli-detention-officials-refuse-to-explain-how/0000018f-6c31-d0ae-adef-edfdd51a0000. Another physician hostage stated “Al-Bursh … was barely recognizable… It was clear he had been through hell – torture and humiliations – and sleep deprivation. He was in pain and suffered from a severe lack of food. We tried to talk to him and calm him, but he was in shock and sounded scared and in pain. He was a shadow of the man we knew.” Id.

[51] Given the statement of Israeli Defense Minister Yoav Gallant on October 9,2023 that “Israel placed Gaza under complete siege –[with][n]o electricity, no food, no water, no fuel. Everything is closed”—in order to force Hamas to do something and in the light of the horror that has followed … under international law all of Gaza’s two plus million civilians are, in fact, hostages.

[52] Israeli Protesters Accuse Netanyahu of Delaying Hostage Deal for His Own Political Survival, Democracy Now, https://www.democracynow.org/2024/4/1/israel_anti_netanyahu_protests_oren_ziv.

[53] The demonstration and comments attributed to the parent of one Israeli hostage occurred just after Hamas agreed to proposed terms and conditions of a ceasefire only to be rejected by Israel. Israel’s Rafah invasion, rejection of the Hamas ceasefire deal, and US role, Daily Star (May 7, 2024), https://www.thedailystar.net/opinion/geopolitical-insights/news/israels-rafah-invasion-rejection-the-hamas-ceasefire-deal-and-us-role-3604136.



[54] UNICEF, April 17, 2024. Other figures, including Gaza’s own Health Ministry, put the figure as of 1 May closer to 17,000.

[55] Philippe Lazzarini, Commissioner-General of UNRWA, declared that “This war is a war on children. It is a war on their childhood and their future.” See Gaza: Number of Children Killed Higher than from Four Years of World Conflict, UN News, (Mar. 13, 2024), https://news.un.org/en/story/2024/03/1147512.

[56] World Health Organization estimates, after a recent March mission to Gaza City, that at least 10,000 dead may be buried under building debris throughout the major urban centers. WHO, Emergency Situation Update: Issue 30, (May 8, 2024), https://www.emro.who.int/images/stories/Sitrep_-_issue_30.pdf.

[57] What the Scale of Displacement in Gaza Looks Like, NY Times (Dec. 2, 2023), https://www.nytimes.com/interactive/2023/12/02/world/middleeast/gaza-map-displaced-people.html.

[58] Gaza’s Entire Population Facing Acute Food Insecurity, Blinken Warns, BBC (Mar. 19, 2024), https://www.bbc.com/news/world-middle-east-68605401. Mr. Blinken in his remarks to the foreign press made unfavorable comparisons to Sudan and Afghanistan in classifying Gaza as 100% food insecure.

[59] UN News, Imminent Famine in Northern Gaza is ‘entirely man-made disaster’, (Mar. 18, 2024), https://news.un.org/en/story/2024/03/1147656..

[60] WHO, Emergency Situation Update, Issue 29 (April 30, 2024), https://www.emro.who.int/images/stories/palestine/Sit-rep-29.pdf, Issue 30 (May 8, 2024), https://www.emro.who.int/images/stories/Sitrep_-_issue_30.pdf.

[61] WHO, Emergency Situation Update; Issue 30 (May 8, 2024), https://www.emro.who.int/images/stories/Sitrep_-_issue_30.pdf.

[62] UNRWA Situation Report #105, (April 30, 2024), https://www.unrwa.org/resources/reports/unrwa-situation-report-105-situation-gaza-strip-and-west-bank-including-east-Jerusalem.

[63] Gaza’s 37m Tonnes of Bomb-filled Debris Could Take 14 Years to Clear, Says Expert, Guardian (Apr. 26, 2024, https://www.theguardian.com/world/2024/apr/26/gazas-37m-tonnes-of-bomb-filled-debris-could-take-14-years-to-clear-says-expert (quoting UN Mine Action Service chief for Iraq, Pehr Lodhammar).

[64] Half of Gaza Water Sites Damaged or Destroyed, BBC Satellite Data Reveals, BBC Verify (May 8, 2024), https://www.bbc.com/news/world-middle-east-68969239.

[65] Gaza’s sole power station stops working as fuel runs out, after Israel orders ‘complete’ blockade, CNN (Oct. 11, 2023), https://www.cnn.com/2023/10/11/middleeast/gaza-power-plant-shuts-down-intl/index.html.

[66] U.S. Report Says it’s ‘Reasonable to Assess’ That Israel Has Violated Humanitarian Law, NPR (May 10, 2024), https://www.npr.org/2024/05/10/1250442216/u-s-report-says-reasonable-to-assess-that-israel-has-violated-humanitarian-law.

[67] See also Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 239-240 (2d Cir. 2019) (“The Supreme Court has described the government speech doctrine as susceptible to dangerous misuse … It has urged great caution to prevent the government from silencing or muffling the expression of disfavored viewpoints under the guise of the government speech doctrine. Extension of the doctrine in the way urged by President Trump would produce precisely this result.”).

[68] See, also, Walker v Texas Div., Sons of Confederate Veterans, Inc., 576 US 200, 208 (2015)(“That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.”).

[69] See, AMID WORRIES OF NAZI SYMPATHIZERS ON THE TOWN COUNCIL, LEITH, NORTH DAKOTA, MOVES TO DISSOLVE, SPLC (June 21, 2018), https://www.splcenter.org/hatewatch/2018/06/21/amid-worries-nazi-sympathizers-town-council-leith-north-dakota-moves-dissolve; see also A Black Man Was Elected Mayor in Rural Alabama, but the White Town Leaders Won’t Let Him Serve Capital B News, Capital B News (July 19,2023), https://capitalbnews.org/newbern-alabama-black-mayor/.

[70] See i.e. In response to the election of two town council members suspected to maintain associations with neo-Nazi Craig Cobb, officials in Leith, North Dakota, are moving forward with plans to dissolve the town government, SPLC (June 21, 2018), https://www.splcenter.org/hatewatch/2018/06/21/amid-worries-nazi-sympathizers-town-council-leith-north-dakota-moves-dissolve; see also A Black Man Was Elected Mayor in Rural Alabama, but the White Town Leaders Won’t Let Him Serve, Capital B News (July 19, 2023), https://capitalbnews.org/newbern-alabama-black-mayor/ (“This is a clear case of white [people] attempting to seize and maintain political power in the face of someone who went through the appropriate steps to qualify and to run for office and by default wins because no one else qualified,” Riley added. “This raises a number of questions about democracy and a free and fair system of governance.”); see also 2023 Recap: Top Troubling & Positive Trends, Western States Center (Dec. 18, 2023), https://www.westernstatescenter.org/pressreleasearchive/2023-recap-top-troubling-amp-positive-trends (“White nationalist and anti-democracy groups and figures spent much of 2023 directly attacking institutions, but this is only part of their inside-outside strategy. These groups are also attempting to build power by running for office and taking over local Republican institutions.”)

[71] See Motion to Dismiss, p. 2 at ¶ 2.

[72] See, generally appended hereto as Exhibit A, declaration of Petitioner, Rabbi Iliovits.

[73] Rabbi Weiss is the spokesperson for Neturei Karta International.

[74] Orthodox Jews to Burn Israeli Flag in International Ceremony, SocialistViewpoint (Mar. 2004), https://www.marxists.org/history/etol/newspape/socialist-viewpoint-us/mar_04/mar_04_11.html

[75] Group of ultra-Orthodox Jews marks Independence Day by burning Israeli flag, Times of Israel (May 3, 2017), https://www.timesofisrael.com/group-of-ultra-orthodox-jews-marks-independence-day-by-burning-israeli-flag/.

[76] Haredi Jews unfurl Palestinian flag to protest Zionism, AA (April 16, 2021), https://www.aa.com.tr/en/middle-east/haredi-jews-unfurl-palestinian-flag-to-protest-zionism/2210635.

[77] Haredi Jews burn Israeli flag outside recruitment center in Tel Aviv, (May 3, 2024), https://english.almayadeen.net/news/politics/haredi-jews-burn-israeli-flag-outside-recruitment-center-in.

[78] The flag burning occurred at a “cheder of the Satmar community — an anti-Zionist Chasidic stream of approximately 150,000 adherents worldwide.” Haredi Orthodox burn Israeli flag in Antwerp, Jewish Tel. Agency (May 14, 2012), https://www.jta.org/2012/05/14/global/haredi-orthodox-burn-israeli-flag-in-antwerp.

[79] https://www.middleeastmonitor.com/20240407-uk-metropolitan-police-arrests-two-ultra-orthodox-jewish-rabbis-for-inciting-anti-semitism-after-burning-the-israeli-flag/.

[80] Id.

[81] Teen arrested after video shows Israeli flags being taken and burned, The Gazette (Apr. 27, 2023), https://montrealgazette.com/news/local-news/hate-crimes-unit-probes-vandalism-at-west-island-jewish-school.

[82] Spanish folk festival participants burn Israeli flag, AlJazeera (Feb. 14, 2024), https://www.aljazeera.com/program/newsfeed/2024/2/14/spanish-folk-festival-participants-burn-israeli-flag

[83] Protesters burn Israeli flag in front of ICJ, AA (Feb. 19, 2024), https://www.aa.com.tr/en/europe/protesters-burn-israeli-flag-in-front-of-icj/3141871.

[84] Northwestern threatens disciplinary action after Israeli, American flags vandalized, Chicago Sun Times (may 13, 2024), https://chicago.suntimes.com/israel-hamas-war/2024/05/13/northwestern-threatens-disciplinary-action-israeli-american-installment-vandalized-hamas-mideast.

[85] It is of course well settled that in the United States such conduct is protected political speech. See, Tex. v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

[86] Among those arrested and charged with a hate crime which was ultimately dismissed was 75-year Rabbi whose parents (not yet married) survived Auschwitz-Birkenau, with most of the rest of their extended family exterminated during the Holocaust. A fifteen-year-old was also arrested and charged in family court.

[87] See, Exhibit A, Iliovits declaration, id. at ¶ 7.

[88] As noted in the Iliovits declaration, “the presence of the Zionist Israeli flag on municipal property restrains some of our community from entering the Ramapo government building, and for many others makes passing by or under it an uncomfortable travel…. Under these circumstances obedient members of our community are or may be deprived from obtaining their benefits and rights as residents of the town of Ramapo.” Id. at ¶ 25.

[89] Id. at ¶ 9. In addition, as noted by Rabbi Iliovits, “Our community feels threatened by this flag. Brandishing the Israeli flag in what some pundits and politicians have described as a growing anti-Semitic environment may very well invite retaliation of strangers angry about Israeli policies and Zionist politics to take revenge upon our community by little more than misconception and appearance. This flag invites hate and takes an unnecessary and one-sided position in an overseas fight which invites unnecessary and disruptive rhetoric by angered outsiders and local faith based and political disagreement.” Id. at ¶ 24. See, Rabbi Dies Three Months After Hanukkah Night Attack (March,2020)(“Josef Neumann had been gravely injured in the machete assault in a Hasidic rabbi’s home in Monsey, N.Y., northwest of New York City.”) https://www.nytimes.com/2020/03/30/nyregion/rabbi-monsey-attack.html; Orthodox Jewish man stabbed multiple times in driveway of Ramapo home (April 12,2024)

https://abc7ny.com/an-orthodox-jewish-man-was-stabbed-multiple-times-at-his-front-door-in-new-city-rockland-county/14650541/;3 young adults, 1 teenager charged in drive-by assault against Hasidic Jews in Rockland County

(July 20,2022) https://www.cbsnews.com/newyork/news/ramapo-monsey-rockland-county-hasidic-jews-assaulted/.

[90] See appended hereto as Exhibit B, petitions in support of the Iliovits’ application for removal of the flag from Ramapo town hall which contain some 1250 signatures from local residents and those of surrounding communities.

[91] More Children Have Died In Gaza War Than Have Been Killed By Conflict Worldwide In 4 Years, HuffPost (Mar. 13, 2024), https://www.huffpost.com/entry/children-killed-gaza-higher-years-global-conflict_n_65f1f917e4b09953f2f8a05a.

[92] See, Exclusive interview: ICC prosecutor seeks arrest warrants against Sinwar and Netanyahu for war crimes over October 7 and Gaza, CNN (May 20, 2024), https://www.cnn.com/2024/05/20/middleeast/icc-israel-hamas-arrest-warrant-war-crimes-intl/index.html. In his application, Khan also sought arrest warrants for three leaders of Hamas.

[93] World Court orders Israel to halt assault on Gaza’s Rafah, Reuters (May 24, 2024),

https://www.reuters.com/world/world-court-rule-request-halt-israels-rafah-offensive-2024-05-24/.

[94] To be sure outraged by Israel’s conduct numerous states including Ireland, Bahrain, Bolivia, Chile, Colombia, Jordan, Bahrain, Honduras, Turkey, Chad, South Africa, and Belize have severed ties, suspended relations or recalled their ambassadors from Israel. Simply put “The World is turning against Israel.” See, The world is turning against Israel’s war in Gaza – and many Israelis don’t understand why, CNN (Nov. 7, 2023), https://www.cnn.com/2023/11/07/middleeast/israel-mood-gaza-war-intl-cmd/index.html. See also More Than 50 Countries Argue Before World Court Against Israeli Occupation of Palestine, DemocracyNow! (Feb. 20, 2024), https://www.democracynow.org/2024/2/20/icj_palestine_ahmed_abofoul. Protesting Israeli genocide, over the last few days Norway, Ireland and Spain have recognized a Palestinian state, joining more than 140 other countries around the world that recognize a Palestinian state. SeeNorway, Ireland and Spain recognize Palestinian state; Israel condemns move, Washington Post (May 22, 2024), https://www.washingtonpost.com/world/2024/05/22/norway-ireland-palestine-state-recognition/. Not surprisingly with lightening like speed Israel immediately moved to punish Palestinians for the action of these states by withholding funds including that used for humanitarian aid from the Palestinian Authority; which is derived from the Oslo Accords. See generally PA says it can only pay 50% of civil sector salaries this month as tax funds withheld, Times of Israel (May 13, 2024), https://www.timesofisrael.com/pa-says-it-can-only-pay-50-of-civil-sector-salaries-this-month-as-tax-funds-withheld/.

[95] See Motion to Dismiss, Preliminary Statement, p.1 at ¶ 3. While Ramapo’s reference to sweeping support for Israel may have applied in the days immediately following the Oct 7 attack, any such claim that it continues more than 6 months later is disingenuous in the extreme.

[96] A 65-year-old former head of Dartmouth College Jewish Studies thrown on the ground, zip-tied and arrested an Emory University professor “trying to look out for students” pinned to the ground by police with her head knocked against concrete; a history professor at Washington U. “tackled and hospitalized with broken ribs and a broken hand;” a U. of Wisconsin sociology professor gashed in head by police. See generally, This Is Helicopter Protesting, Atlantic (May 6, 2024), https://www.theatlantic.com/technology/archive/2024/05/campus-protests-gaza-helicopter-faculty/678310/.

[97] Reuters Explainer: What is behind the pro-Palestinian protests at US universities?, Reuters (May 3, 2024), https://www.reuters.com/world/us/what-is-behind-pro-palestinian-protests-us-universities-2024-05-03/ (“Pro-Palestinian protests have drawn students, faculty and outside activists, including of Jewish and Muslim faiths. The groups organizing the protests include Students for Justice in Palestine and Jewish Voice for Peace.”); See also Don’t let the sound and fury over Gaza protests drown out what the students are saying, Guardian (May 6, 2024), https://www.theguardian.com/commentisfree/article/2024/may/06/gaza-protests-students-columbia-university (photo of April 22, 2024 depicting “a collective of groups organized by Jewish students at Columbia and Barnard in solidarity with Gaza and the protest encampment host a Passover Seder at Columbia University”); See also Pro-Palestinian protesters break through barricades to retake MIT encampment, AP News (May 6, 2024), https://apnews.com/article/columbia-commencement-protests-gaza-080a42e09d9bac2e37321874ac37a8c1 (commenting on Pro-Palestinian protesters who had been blocked by police from accessing an encampment at MIT and broke through fencing to retake the area ,“Sam Ihns, a graduate student at MIT … and a member of MIT Jews for a Ceasefire, said the group has been at the encampment for the past two weeks and that they were calling for an end to the killing of thousands of people in Gaza … [s]specifically, our encampment is protesting MIT’s direct research ties to the Israeli Ministry of Defense.” ); See also Jewish Group Applauds Pro-Palestinian Campus Protesters, Newsweek (Apr. 28,2024), https://www.newsweek.com/jewish-group-applauds-pro-palestinian-campus-protesters-1894965 (described “as the largest progressive Jewish anti-Zionist organization in the world” JVP “voiced support for the campus demonstrations … [we] applaud the courage and determination of students all over the country who are peacefully protesting for an end to U.S. support to the Israeli military and calling on their own universities to divest from the Israeli military, … countless Jewish student are part of the protests); See also Veterans Support Students Protesting Genocide in Palestine, Pressenza (May 8,2024), https://www.pressenza.com/2024/05/veterans-support-students-protesting-genocide-in-palestine/ (“The students are absolutely right, and they may actually be saving our humanity, said Veterans for Peace president Susan Schnall. Peace-loving people should applaud them, help them and join them. We are grateful that many people – including veterans – are doing just that.”).

[98] Not at all limited to campus or street-side demonstrations, the pro-Palestinian/pro-Israeli debate has drawn a wide cross section of society into the argument. For example, 5,000 NYU alumni sent letters to school administrators demanding police be removed from the campus, that the university divest from companies with ties to Israel and that it issues pardons to those students and faculty who were disciplined for participation in pro-Palestinian demonstrations on campus. See Over 5,000 alumni demand NYU remove police from campus, meet protesters’ demands, WA Square News (May 5, 2024), https://nyunews.com/news/2024/05/05/nyu-alumni-demand-nypd-removal/.

[99] See Hundreds of NYC students walk out of class demanding ceasefire in Israel-Hamas war, NBC NY (Nov. 10, 2023), https://www.nbcnewyork.com/news/local/hundreds-of-nyc-students-walk-out-of-class-demanding-ceasefire-in-israel-hamas-war/4847843/.

[100] See AFTER RAIDS, NYPD DENIED STUDENT PROTESTERS WATER AND FOOD IN JAIL, Intercept (May 6, 2024), https://theintercept.com/2024/05/06/columbia-student-protests-nypd-jail/.

[101] See Why Are Police in Riot Gear?’: Inside Columbia and City College’s Darkest Night, Time (May 2, 2024), https://time.com/6973166/columbia-university-city-college-pro-palestinian-protests-arrests/

[102] See Critics Fault ‘Aggressive’ N.Y.P.D. Response to Pro-Palestinian Rally, NY Times (May 20, 2024), https://www.nytimes.com/2024/05/19/nyregion/brooklyn-protest-palestinian-police.html.

[103] See NYPD officer fired gun while clearing protesters from Hamilton Hall at Columbia, DA’s office confirms, CBS News (May 3, 2024), https://www.cbsnews.com/newyork/news/columbia-university-protests-nypd-officer-fired-gun/.

[104] Although the International Court of Justice (ICJ) has not reached a final determination on the genocide complaint lodged against Israel by South Africa for its boundless and vicious assault on Gaza, as noted in its preliminary finding the ICJ noted it is “plausible that Israel has committed acts that violate the Genocide Convention.” See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Order, 26 Jan 2024, International Court of Justice, at no. 54.

[105] In their Motion to Dismiss Respondents acknowledge that for more than two months the flag was displayed in clear violation of New York law as Ramapo ignored the core facial requirements of the applicable statute. See, Respondents memorandum of law, p 10 at ¶ 2.

[106] See, generally, Rousseau The Social Contract (1762)(“Through the collective renunciation of the individual rights and freedom that one has in the State of Nature, and the transfer of these rights to the collective body, a new ‘person’, as it were, is formed. The sovereign is thus formed when free and equal persons come together and agree to create themselves anew as a single body, directed to the good of all considered together.”) Id. at 59.

[107] For example, the official minutes of the Town Board meeting of Lewisboro, New York of November 27,2023 at p. 8 are instructive with regard to the issue of flying the flag of a foreign state. In response to a question from an audience member as to “why the Israel and Ukraine flags are no longer flying in front of the Town House … Supervisor Gonçalves stated that it was brought to his attention that it is unlawful to display the flags of foreign nations on municipal buildings as per NYS Law, Public Buildings (PBB), Chapter 44, Article 5 §141.” See, https://www.lewisborogov.com/sites/default/files/fileattachments/supervisor_and_town_board/meeting/20579/tb_minutes_november_27_2023.pdf.

[108] Ramapo states in its moving papers that, “Plaintiff, a self-described “activist,” is a member of the Satmar Hasidic Jewish community, which comprises a very small percentage of the population of Ramapo.” The Town and its attorneys are too clever to say directly, but clearly imply, in this statement and the general tone of their argument that as a citizen that holds a minority point of view, Leibish Iliovits and other residents of Ramapo must surrender their individual rights and beliefs to the so-called will of the town’s majority in its blind support of Israel. Putting aside the fact that no such support exists, in this paradigm of misguided convenience, Respondents would have us find comfort in some of the darkest but no longer prevailing moments of American constitutional history. See, generally, Dred Scott v. Sandford, 60 U.S. 393(1856)(Blacks could not be citizens because, at the nation’s founding, they were considered inferior to whites and, therefore “they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.”); Plessy v. Ferguson, 163 U.S. 537 (1896)(In upholding a Louisiana state statute the court rejected the argument that separation of the two races stamped one race with a badge of inferiority finding the legislature was at liberty to act with reference to the established usages, customs, and traditions of the people).

Against these archaic “majority rule” tragedies, long ago the Supreme Court noted “[t]he very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts… fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)(emphasis provided). See, also Obergefell v. Hodges, 576 U.S. 644,677 (2015)(“An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees.”).

[109] “It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal.” Matter of Hearst v. Clyne, 50 N.Y.2d 707, 713 (1980). This principle prohibits courts from giving advisory opinions or ruling on “academic, hypothetical, moot or otherwise abstract questions.” Thus, “an appeal is moot unless adjudication on the merits will result in immediate and practical consequences to the parties.” Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012)(internal citation omitted).

[110] “Ubi jus ibi remedium”. Where there is a right there is a remedy. The principle that where one’s right is denied the law affords the remedy of an action for its enforcement. This right to a remedy therefore includes more than is usually meant in English law by the term “remedy,” as it includes a right of action. Wherever, therefore, a right exists there is also a remedy. Ashby v White (1703) 14 St Tr 695, 92 ER.

[111] More than 200 years ago, in explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist No. 78 that the federal courts were designed to be an ‘intermediate body between the people and their legislature in order to ensure that the peoples’ representatives acted only within the authority given to Congress under the Constitution.” That fundamental principle is no less at play in this case. If not the Plaintiff, who will ensure that the Town of Ramapo has acted properly and solely within the authority given to it by State law?

[112] In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court considered four factors to determine whether an implied private right of action exists under a statute. Chief among them was whether the plaintiff is one of the class for whose benefit the statute was enacted. Id. at 78.

[113] Although Rabbi Iliovits’ position on the legitimacy of Israel is a minority viewpoint, opposition to its unbridled brutality in Gaza these past seven plus months is not, with claims of dutiful support for Israel be it in the U.S. as a whole or in New York in particular belied by independent examination. Thus, in March the Gallup poll found “55 percent of [its] respondents disapproved of the Israeli military’s actions in the Gaza Strip, up from 45 percent who said they disapproved in November.” See Most Americans disapprove of Israel’s actions in Gaza: Poll, Al Jazeera, https://www.aljazeera.com/author/al_jazeera_staff_150119130629458. Accord; see also Most Americans oppose Israel’s war in Gaza, poll finds, Washington Post, https://www.washingtonpost.com/world/2024/03/27/us-poll-israel-gaza/; Majority of Americans Disapprove of Israel’s Actions in Gaza, New Poll Shows, NY Times, https://www.nytimes.com/2024/03/27/world/middleeast/military-action-americans-gaza.html.

Even more telling, months before this poll, in large numbers New Yorkers did not support Israeli attacks on Gaza with “45% of New York state residents opposed [to] sending additional military and economic aid to Israel [and] … Opposition to Israeli aid … higher in New York City than in the rest of the state – 53% of city residents oppose sending economic and military aid, while only 35% support it.” See As tensions rise, more New Yorkers oppose aid to Israel, City and State, New York (Jan. 23, 2024),https://www.cityandstateny.com/politics/2024/01/tensions-rise-more-new-yorkers-oppose-aid-israel/393561/.

Nationwide, in an even more damning result, recently, the Jerusalem Post reported “that [while] American voters are split on Israels actions in Gaza … 39% believe that the IDF’s actions constitute genocide against Palestinians.” The figure among Democrats is even higher with 56% of them believing Israel guilty to be guilty of genocide. See Most Democrats believe Israel is committing genocide against Palestinians in Gaza – poll, Jerusalem Post (May 9,2024), https://www.jpost.com/us-elections/article-800603.

[114] See The Evening World, (Jan. 22, 1895), https://www.loc.gov/items/su83030193/1895-01-22/ed-1/.

[115] See, The Sun. (New York, NY) Jan 6, 1895, https//www.loc.gov/items/su83030272/1985-01-06/ed-1/.

[116] See The Evening World (New York, NY) Feb. 22, 1895, https://www.loc.gov/items/su83030193/1895-02-22/ed-1/. Article critical of the legislation stating, “To be sure, the people have not suffered very severety (sic), nor has the National honor received any serious damage from the display of the Irish flag in union with the American flag on the top of City Hall on Saint Patrick’s Day or from the flying of other emblems on other festivals honored by foreign born and naturalized American citizens. But, then. the growing demands of the A.P.A. on the politicians must be respected.” The American Protective Association (APA), a short-lived, anti- Catholic, anti-immigrant group that briefly acquired a membership greater than 2,000,000 during the 1890s. See generally American Protective Association, Britannica, https://www.britannica.com/topic/American-Protective-Association. A successor in spirit and outlook to the pre-Civil War Know-Nothing Party, the American Protective Association was founded by Henry F. Bowers at Clinton, Iowa, in 1887. Id. It was a secret society that played upon the fears of rural Americans about the growth and political power of immigrant-populated cities. Id.

[117] A statute is not repealed by nonuse or desuetude. See, Scalia and Garner, Reading Law: The Interpretation of Legal Texts, Thomson West (2012).

[118] United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (Scalia, J.). As Judge Learned Hand observed, it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).

[119] The venerable maxim de minimis non curat lex (the law cares not for trifles) is part of the established background of legal principles against which all enactments are adopted… Whether a particular activity is a de minimis deviation from a prescribed standard must … be determined with reference to the purpose of the standard. See, e.g., Abbott Laboratories v. Portland Retail Druggists, 425 U.S. 1, 18 (1976) (occasional emergency dispensation of drugs to walk-in patients is de minimis deviation from Robinson-Patman Act’s exemption for hospital purchase of supplies “for their own use”).

[120] Exceptio est strictissimae applicationis “An exception is of the strictest application.” A maxim meaning that an exception to a general rule should be narrowly construed to avoid undermining the general.

[121] As originally noted, the constitutional claims of Rabbi Iliovits are based upon not just the First Amendment, but also Art. I §§ 8 and 3 of the New York State Constitution.

[122] Though a diverse community of faith and culture, as noted, there has long been a fundamental “clash” within two of Ramapo’s largest Jewish communities with regard to Israel and its statehood signposts such as its flag.

[123] Of course, under Section141, Chapter 44, Article 5 of the New York Public Buildings (PBB) there is no requirement that one who seeks relief for its violation was personally “harmed” but simply that the movant is a member in the local municipality flying the flag of a foreign state.

[124] In any event, based upon of Exhibits A and B appended hereto (the sworn-to Iliovits affidavit and a petition of a significant number of those supporting his motion) it is clear that the relief sought is not only representative of a large community, but one which has been injured by virtue of Ramapo’s illegal action.

Stanley L. Cohen is lawyer and activist in New York City.

False Flag Over Ramapo ✸ A Novella In Legal Pleadings