Judgement

Well the verdict is in regarding the lawsuit against the Olympia FoodCo-op for their Israel boycott, and there is no sugar coating the news that the judge went against the plaintiffs as hard as he could, not just dismissing their claims but hitting them with an anti-SLAPP judgment that could lead to heavy fines.

Needless to say, the BDSers are masturbating themselves into unconsciousness over the decision all over the Internet.  And while I could always go down the well-trod BDS path of declaring “By losing we really won!,” I prefer not to spin or deny what has happened, but to learn from it.

In nearly every instance when I have commented on this or any other BDS-related lawsuit, I have tried to make it clear why my preference is for political vs. legal responses to boycott and divestment activity.

To begin with, political responses have been pretty-much 100% successful over the last ten years, which means non-legal remedies continue to represent my preferred path (as difficult and painful as it can sometimes be to have to engage in them).

Second, lawsuits set not just legal but political precedent, making it that much harder to complain when your opponents take to the courts (as BDSers have in at least two other instances I’ve followed or been part of in the past).

Finally, a lawsuit is high risk.  And while I’d be surprised if huge fines end up getting levied on a group of Olympia citizens (either due to the SLAPP motion being overturned on appeal – allowing the case to continue, or the whole thing getting settled out of court), I think that Olympia demonstrates the chances one takes if you go down the legal route (no matter how justified one might feel about your position and how strong your feel your case).

As noted above, I only know of three BDS-related lawsuits: this one and two filed by boycotters in Sacramento (against the Sacramento Food Co-op) and Somerville (against the city).  I’ve actually served as a witness in two of those cases (Olympia and Somerville), and all three seem to highlight the reluctance of the courts to interfere with the political decision making of a civic institution (be it a food co-op or municipality).

The other observation I have about the case derives from having read the court documents submitted by both sides (which are available here if you’ve got the time and inclination to read through them).

This observation fits into a theme I’ve revisited a number of times on this site: the notion of sacrifice (or, more specifically, the type of sacrifice BDS demands of the civic institutions they ask to partake in a boycott or divestment decision).

Summarizing that theme, one of the more extraordinary characteristics of boycott and divestment campaigners is that they demand a civic organization not simply take its side but to put onto the alter that which the institution holds most sacred in order to be considered a “true” BDS participant.

In the case of media (be it the British National Union of Journalistsor community radio stations), journalists are asked to sacrifice journalistic objectivity (the key to their professional integrity) in order to make a statement about one particular international issue (the perfidy of the Jewish state).

Teachers who want to participate in an academic boycott are not being asked to simply take a political stance, but to throw the whole notion of academic freedom out the window in order to use their professional positions as weapons against Israeli colleagues.

Nowhere is this phenomenon more apparent than in the Mainline Protestant churches which are asked to make their pronouncements condemning Israel not in the name of individuals, committees or the church, but in the name of “Christian Witness,” implying that God himself is in unquestionable alignment with the BDSers worldly political positions.

If you look through the main legal submissions by the Olympia Food Co-op, their key argument (which I presume was accepted by the court) was that the leadership of the organization can basically do whatever it wants, whenever it likes, regardless of any specifics that may appear in the organization’s by-laws, and (by implication) regardless of how much it might offend people (even if not the majority) which that leadership is supposed to represent (be they staff or members).

Legally (at least according to the judge hearing this case), the board of an organization like the Co-op does appear to have this type of latitude.  And even if the SLAPP portion of the case is overturned or the whole case settled, the keystone argument the Co-op and their BDS supporters have presented is that what the leaders say goes.

While this argument may be legally correct, what does it say about an organization that prides itself on cooperation, community-building and consensus-based leadership?  It says that in the case of BDS, all of those principles have to be jettisoned (all for a “higher cause,” of course).  And in the (hopefully unlikely) case that the next step in this sad story is for members of the Co-op to get punished with heavy personal fines (while the BDSers chortle all the way to the bank), what does that leave of the co-op, other than a rigidly hierarchical institution ready to punish those who dare cross it?

As an anti-BDS activist, I’ve already gotten all I need from Olympia: a precedent that – when invoked – virtually guarantees victory in any other co-op boycott fight in the country.  But, as noted before, the fact that I am united with members of the Olympia community by the common experience of having woken up to discover others trying to speak in my name keeps me coming back to the Olympia story that would probably be best left alone.

Yesterday, the court stated that the leadership of that community has the legal right to act in an appalling fashion towards large percentages of the people it is supposed to represent.  But, as we know from many other aspects of life, just because something is legal, does not make it any less appalling.

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4 Responses to Judgement

  1. fizziks March 2, 2012 at 5:23 pm #

    I don't get it. How can litigants be sanctioned for trying to use the legal system to enforce their organization's by-laws, which are, presumably, contractually binding?

    • Jon March 3, 2012 at 5:20 pm #

      No doubt you and I would have ruled quite differently if we were the judge in this case. But as a matter of law (and I am speaking purely as a non-lawyer), I suspect that the elected leadership of a non-profit is seen as having wide latitude in decision making since they would be the ones who would be held legally liable in case of a dispute.

      If that’s the case, then the leadership may have an ethical and moral duty to follow the by-laws, but not necessarily a legal one (or if there is a dispute over the nature of those by-laws, the law will give precedence to leaders vs. critics).

      This is just my guess at the judge’s thinking, and it does fit with precedent of courts tending not to intervene in the affairs of civic groups. As I noted previously, the SLAPP portion of his decision is the part that seems totally unjustifiable (especially since one could just as easily made the case that the boycotters were stifling their opponent’s free speech by unleashing the thermonuclear SLAPP option on them).
      Someone did point out to me that this precedent might come back to haunt the BDSers, especially if they go to another co-op (like Park Slope) where the by-laws allow a referendum on a boycott, only to get slapped down unilaterally by the co-op’s board who insist they are just following precedent set in Olympia saying the board can do whatever it likes, by-laws or not). I must admit that this scenario provides me no pleasure, since the next step would be for the boycotters to find an Oly-like board that will give them what they want, as the whole Co-op movement degenerates into a hierarchical enterprise that is the antithesis of the collective partnerships that historically defined food cooperatives.

      But that will be just one more great gift the BDSers give the world. All so they can boast to their friends of their accomplishment on Facebook. In a word: Yuck.

  2. Thad Curtz March 6, 2012 at 5:38 am #

    Jon – I'm sorry to say that I think this account of the case slights your responsibility to the people who rely on you to keep them informed in some depth about the complexities of these events.

    The judge's decision said, “Next we deal with the key issue here, and that is what is the authority of the Board to act in this matter. As a matter of law, the Olympia Food Co-op was organized as a nonprofit corporation and remains a nonprofit corporation under the law. Under our law, the governance documents of the Co-op are its articles of incorporation and bylaws.” And he held that the plaintiffs hadn't presented legal evidence to support their claim that the Board hadn't acted in accordance with the bylaws. (He may be wrong, and he may be overruled on appeal, but he didn't reach the decision on the basis that they had “wide latitude in decision making” or that they didn't “necessarily” have “a legal duty” to follow the bylaws. He said the “key issue” legally was whether they had and that the plaintiffs had “offered no evidence … certainly not evidence that could be considered clear and convincing” to show that the Board had excluded boycott decision from its enumerated power under Bylaw # 16 to “Resolve organizational conflicts after all other avenues of resolution have been exhausted.”

    Also, writing about “another co-op (like Park Slope) where the by-laws allow a referendum on the boycott, etc…” leaves your reader in ignorance of the fact that the Olympia co-op's bylaws provide for a referendum on any co-op issue if any member submits a petition with 300 members' signatures calling for one. The plaintiffs have not done that.

    The only reason most people in Olympia can see that they haven't is that in our particular co-op, there are not “large percentages of the people” they are supposed to represent who are opposed to the boycott. (Most people here think that the vote of the membership in the next Board election after the passage of the boycott, in which all five anti-boycott candidates were defeated, showed what the outcome of such a referendum would be.)

  3. Jon March 7, 2012 at 12:41 pm #

    Thad – Sorry to take a while to get back to you (from Texas – of all places).

    As noted in my piece (and in previous writing on the subject), a court would be the place to decide whose interpretation of the co-op rules would prevail – boycott supporters vs. boycott critics. And, as we all know, the judge ruled in favor of the boycotting board. And unless such a decision is appealed or overturned, that remains the standing interpretation.

    As for slighting my readers, I believe I’ve got a pretty good grasp of the complexity of these events having (among other things) read through the court documents provided by both sides. And if you look through the submission of the lawyers representing the co-op’s board, they did not simply state that the board’s conflict provision overrides the staff boycott consensus requirement, as you say. Rather, they claimed that regardless of rules in the by-laws regarding staff involvement in boycott decision making, that an elected board (which has ultimate legal responsibility) is within its rights to decide and implement a boycott entirely on its own.

    Now where did this board-initiated boycott option come from? Is it mentioned the by-laws anywhere? Is there precedent for it at the Olympia Co-op (I’m guessing not, otherwise you or others would have provided it months ago). Which leaves us with my interpretation that this new boycott option was created for just one purpose: to facilitate BDS at the Olympia Co-op. And a court (or at least a judge) determined that a non-profit’s board is within its legal rights to interpret existing rules or making up new ones, so long as such decisions do not break the law.

    Regarding the referendum option, I’m afraid that argument works better for me than for you. For if, as you say, there was a simple way for controversial decision to get made that would have involved the membership of the organization, why didn’t the board and its BDS allies pursue that route from the get go (rather than finding a way to pass a boycott without staff approval or member involvement)? If your interpretation of election results is accurate, such a referendum may have passed (and would at least have avoided the situation where people were objecting to what seems to them to have been extraordinarily hierarchical means to make decisions at a co-op that claims to be driven by cooperation and consensus).

    In truth, you and I are probably in agreement in preferring political to legal challenges to controversial decisions such as BDS. And I stand by my comment above that even if the board of the next co-op (one that has a referendum provision in their by-laws) vetoes such a referendum citing Oly as precedent, such sauce for the gander will not please me that much.

    For one of the things I like least about any legal argument (even ones I’ve been asked to contribute to) is that they tend to sterilize discussion of more human aspects of a story. And, in this case, the human story is that a subset of the co-op’s membership (which may actually represent a majority) decided to do something that shocked, horrified, appalled and hurt another subset of the membership. Perhaps you and your fellow boycott supporters feel that this is a price worth paying. The trouble is, it’s a price you’ve asked someone other than yourselves to pay.

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