As my regular reader knows, I’ve always been skeptical about turning to the law (either in the form of the courts or legislatures) in order to solve BDS-related problems.
Part of this skepticism is purely pragmatic. After all, in the few cases where organizations were dragged into court for either implementing or not implementing a boycott or divestment program the organization that did the dragging not only lost but lost big.
True, the number of cases where BDS came before a judge is small. In Somerville, the city was sued for not allowing divestment onto the ballot (the judge dismissed the BDSers’ suit from the bench). In Sacramento the Israel haters sued the local food coop for not allowing a member vote on a boycott (a suit which was dismissed with prejudice). And in the one case where anti-boycotters sued (at the Olympia Food Coop), the result was again a loss for those that initiated legal action.
Putting aside politics for a moment, from a legal perspective these cases seem to have established (or demonstrated) a precedent that says courts of law are ready to give wide latitude to civic institutions to police their own affairs. And, if the recent decision by a court in the UK to uphold a university’s choice to cancel a conference on “Why Israel Deserved to be Destroyed” (or something along those lines) is any indication, it seems as though the deference judges show to civic groups transcends national judicial systems.
Moving back to politics, suits and government-backed punishments also tend to provoke a backlash – giving those who should suffer for their boycotting behavior the opportunity to present themselves as martyrs. The best example of this is the American Studies Association (ASA) that took real heat as fellow academics, college presidents and much larger academic associations all lined up to condemn their anti-Israel boycott. But once state legislators got into the act – proposing cutting off funding to schools that maintained institutional membership in ASA – suddenly the debate shifted to whether or not ASA (not the Israelis they proposed boycotting) were having their academic freedom squelched.
All that said, a panel on legal matters at the StandWithUs conference I participated in a few weeks back got me re-thinking a number of issues. And, unlike my “BDS is a loser” theme which – despite self-questioning and discussion – I still think is important and useful, on the subject of law it’s clear that my dislike of substituting legal for political action has given me too narrow a view of legal challenges and options.
Most importantly, it’s clear that the other side has no problem “lawyering up” as they go into battle. Many have wondered, for example, how Students for Justice in Palestine (SJP) can get away with the atrocious behavior they routinely demonstrate on campus.
One answer has to do with our old friend ruthlessness. For in a society, such as a college community, that values discourse and assumes people will resolve problems reasonably and amicably, how do you deal with an organization ready to trash the entire enterprise in order to torture and smear their political enemies?
But, as has been demonstrated at schools where administrators were roused to take action against SJP chapters that behaved particularly egregiously, once punishments were announced, in marched Lawyer’s Guild and ACLU lawyers (usually working for SJP pro bono) to threaten school leaders with legal action if they didn’t reverse their decision. And, as anyone who has ever interacted with such leaders will tell you, avoiding bad PR and lawsuits is a top priority. So if SJP misbehavior must be tolerated to avoid landing in court or appearing in headlines, so be it.
But, as I discovered in LA, this same dynamic works both ways. For example, when Jewish students decided to exercise their free speech rights by protesting against Megan “Blood Bucket Challenge” Marzec at Ohio University, Ms. Marzec (President of the Student Senate) had them arrested. And the only reason the school dropped every charge was that pro-Israel students were provided legal counsel which meant Ohio University did the right thing in order to avoid having to defend their choices in court.
This is the most obvious example of situations where our side clearly needs both legal advice and legal advocacy. And in a world of “lawfare” where Israel’s enemies are constantly devising ways to pervert the rule of law for their own political advantage, it would be a case of political malpractice to not “lawyer up” ourselves in order to fight these battles with the right expertise on our side.
How then to distinguish when “going legal” makes good sense vs. being the wrong choice?
Like most challenging decisions, there is no right or wrong answer to this question. But I think some things we can ask ourselves as we navigate decisions should include:
- Is a legal or legislative option our only choice, or are we looking to judges and legislators to solve a problem that would be time consuming and difficult to tackle politically? If it’s the latter, we should express requisite annoyance, but then do the heavy lifting needed to fight a political fight, rather than take a legal shortcut that can have negative consequences if we lose (such as setting legal precedent that cannot be easily undone).
- Is this really a legal issue? In our hyper-litigious age, every problem can be posed in terms of legal rights, and every challenge is one where legislators are eager to pander to a constituency. But before we accept the notion that our problems are legal (rather than political) or say yes to offers to punish our enemies by friendly politicians, we should again determine if we are really dealing with a legal problem that requires a legal solution (as well as think about whether such a route might have unintended negative consequences)
- In situations (such as those involving harassment of students on college campuses) we should ensure parity (if not overwhelming superiority) between our side and theirs regarding legal representation. As mentioned earlier, school administrators are likely to cave to whoever sends them a legal notice, and while this knowledge must be used judiciously, when we decide to take action we should do so with full force.
- As with any strategy we pick, we need to minimize damage to “civilians.” Which means that if a legal option (or any option) stands the chance or harming people who are not directly involved in the conflict, that option should either be rejected or scrupulously analyzed with an eye towards finding less harmful alternatives, lest we end up turning real people into “mere means” towards our ends.
After thinking it through, an increased comfort level with legal tactics represents less a turnaround than an expansion of what constitutes activity needing a political or legal response. As already mentioned, I still think suing the BDSers or the people and organizations they drag under their tent or calling upon state houses to rain punishment down on our foes leads to bad legal precedent and bad politics (even if we win). But that does not mean other situations are not entirely appropriate for a legal response.
But at the end of the day, we are in a political battle with a foe whose resources dwarf our own. But just as the IDF has kept much bigger armies at bay for generation through training, discipline, creative tactics and a willingness to learn from mistakes, so too should those of us defending the Jewish state must be ready to engage in political warfare, even if a legal shortcut looks appealing at any given moment.