Israel’s boycott law passes the U.S. test

Israeli Supreme Court will soon rule on the legality of the 2011 anti-boycott law. Rulings of the U.S, Supreme Court show that the Israeli law could well withstand constitutional challenge of the most liberal free speech regime in the world.

On July 2011 Israel’s parliament passed the “anti-boycott” bill, which allows “citizens to bring civil suits against persons and organizations that call for economic, cultural or academic boycotts against Israel, Israeli institutions or regions under Israeli control.” Since before the establishment of Israel, boycotts have been a major part of the Arabs’ war against any Jewish presence in the Holy Land. Today, economic boycotts have become one of the main tools for delegitimizing, intimidating, undermining and unfairly singling out Israel

The law is currently being challenged before the High Court of Justice. One of the principal arguments against the law is that it violates free speech and Western democratic values. Thus it is useful to consider how the law would fare before the U.S. Supreme Court, given that America has perhaps the most liberal free speech regime in the world (many Israeli laws regulating political campaigning and incitement would be unconstitutional in the United States).

Israel’s anti-boycott law could well withstand constitutional challenge in the U.S. In past cases, the Supreme Court has allowed the government to regulate speech that contradicted strong government policies, like preventing discrimination among citizens, which is what the boycott involves.

In the Bob Jones University case, the U.S. Supreme Court held that the government can legitimately discriminate against certain kinds of expression, namely, those that are strongly against public policy. That case involved private racial discrimination – Bob Jones University in effect boycotted certain racial groups. This meant the government could authorize to deny a tax exemption to Bob Jones U because of this policy. Now one might respond that settlements are bad and blacks are not, but such judicial value judgments are impermissible in the free speech context.

The government can reasonably determine that boycotts of Israel are an illegitimate form of discrimination strongly against the interests of the State, just like the discrimination involved in Bob Jones. It may also determination that discrimination against Israeli citizens living in areas under Israeli control with the authorization of the Israeli government is also an illegitimate form of discrimination.

Moreover, the government has greater power to restrict entirely legitimate speech in the national security/foreign relations context, as the U.S. Supreme Court has held just a few years ago in Holder v. Humanitarian Project. There, the US has recently criminalized “material support” of designated foreign terrorist organizations. Such organizations need not target the US in any way, and thus the US interest in their activities is quite attenuated, purely a matter of foreign policy. Moreover, terrorist activity can be only a small part of their operation.

Yet the statute prohibits US nationals from supporting such groups even in otherwise entirely lawful manners, involving otherwise fully protected speech – such as publishing their newspapers, giving them medical advice, or even legal advice on how not to be terrorists. In this case, the Court held that the relevant activities were clearly expressive and even political speech (some the plaintiffs merely sought to advise a targeted group on how to negotiate a peace deal!), which enjoys the highest level of constitutional protection.

Nonetheless, the government interest in taking a particular line towards these groups trumped. Thus the Court allowed the government to prohibit pure political speech with no immediate link to any violence simply because of strong diplomatic imperatives. Sounds a lot like the Anti-Boycott law, but upholding an even more restrictive law.

Moreover, the domestic boycotts by Israelis must be seen in a context of foreign efforts to achieve the same aim, especially given some domestic boycott proponents received direct funding from foreign governments. Both Justice Minister Tzipi Livni and Finance Minister Yair Lapid say foreign boycotts would be entirely destructive to Israel. So one might reasonably think stopping domestic action that could encourage foreign boycotts is itself a massive government interest.

Some have suggested that the High Court of Justice might strike down the anti-boycott law only as far as it applies to boycotts of settlements. There is no principled legal basis for this: it would create a new statute that the Knesset did not write. The legislators specifically did not want to distinguish between various areas under Israeli control. Indeed may have preferred no law at all to a regime that implicitly offers less protection to businesses across the Green Line, or those inside the Green Line that may operate there. This would invite and legitimize analogous foreign boycotts – which is why it would be entirely illegitimate for such a distinction to be written into law by the courts, not the Knesset.

Turning back to the example of the U.S., the mere fact that speech prohibition applies outside of sovereign borders does not make it less legitimate. Notably, Holder involved speech activity related entirely to foreign countries. Indeed, to the extent that the territories are not fully part of Israel, constitutional rights would if anything have a narrower application there.

Moreover, any such “compromise” decision by the Court would then have to determine what counts as a “settlement” that can be boycotted: a bank with ATM in across the Green Line? Would it go by Israeli law, where eastern Jerusalem or the Golan is part of the State or by the opinion of the world, where none of Jerusalem is? The Court would in effect have to rewrite the law to accord with its own preferences.