Protecting Free Speech vs. Opposing Anti-Semitism

Choices are easy when one option is clearly right and the other is wrong.

They become much more difficult when both alternatives are positive, or conversely when both are negative.

I often hear people talking about how they choose who they will vote for in an election.  Rather than being a process to identify a candidate that they most identify with, they instead choose the “lesser of two evils”.  Both options are bad, and in such a case their decision is often not simple.

Well, I would like to present an example of the other extreme, when both options are desirable.

My organization Zachor Legal Institute (www.zachorlegal.org) uses the law to oppose BDS (Boycott, Divestment & Sanctions) in its discrimination and demonization against Israel.  Our activities take many forms; a couple of recent examples include:

• Defending states’ anti-BDS legislation from First Amendment legal challenges
• Opposing UCLA for hosting the Students for Justice in Palestine (SJP) National Conference.

By taking such stands, many label us as opposing the First Amendment of the US Constitution guaranteeing free speech.  Yet, besides being blatantly false, oftentimes this accusation is used to avoid confronting the underlying issues.

On the one hand, we support Free Speech, but on the other hand, we oppose Discrimination and Anti-Semitism.  What is correct to do in such a case? Is there a way to reconcile these conflicts?

Let’s first address the most simplistic interpretation, to get this out of the way.  Zachor Legal Institute does not believe it is acceptable to oppose free speech simply because we don’t happen to agree with the contents of the speech.  This is an “ends justify the means” explanation, which we oppose.  We fully support and abide by the First Amendment and the US legal system’s process of decision-making by way of interpretations and precedent-setting.

The US Supreme Court has ruled on First Amendment issues many times over the years.  The clear conclusion that can be drawn from these Supreme Court decisions is that not all speech and boycotts are protected by the Constitution.  It depends entirely on the particulars of the case.

So, then, what about the cases that we are involved in?

More than half of all US states have enacted some form of anti-BDS legislation, which provides a powerful indication of the popularity of standing up loudly and clearly at the governmental level to this hate-based movement.  Anti-BDS laws in states do not restrict an individual’s right to speak against or boycott Israel.  Although each state law is different, in general what they do define is the state’s intent to refuse to do business with a company that chooses to boycott Israel.  If the legislators of a state decide that it is the will of their constituents to show opposition to an unjust lobbying effort targeting Israel for boycott, then they are well within their rights to create a law that expresses this.

Of course, this law must be Constitutional.

Those that challenge a state’s right to enforce anti-BDS laws incorrectly cite as relevant precedent the Supreme Court’s ruling in the NAACP. v. Claiborne Hardware Co., 458 U.S. 886 (1982) Civil Rights case.  In its landmark Civil Rights decision, the court ruled that the NAACP’s boycott against White-owned businesses was protected because Blacks at the time were the ones being injured by White business owners, and were trying to redress this unfairness non-violently in the only means available to them.

This, however, is not the case with BDS advocates.  BDS supporters in the US are not being injured by the State of Israel, and they are pressuring others (American universities, businesses, US consumers) who are not a party to any dispute with Israel to participate in a boycott.

The Supreme Court case that most resembles the BDS model of operation is International Longshoremen’s Association, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212 (1982).  In this case, Longshoremen refused to unload cargo from an Allied Int’l ship because the goods were from the Soviet Union, and during the Cold War the Longshoremen wanted to show their solidarity against the Soviet Union by making this gesture.  The US Supreme Court ruled that the Longshoremen had overstepped their rights of free speech/boycott, since neither they nor the ship’s owners and American consumers that were being penalized by the boycott were actually a party to the dispute in the far-away Soviet Union.

The Longshoremen then and today’s BDS advocates behave in a remarkably similar way.  In both cases, those boycotting are not being harmed by those they boycott, they are advocating that an unrelated party (shipping company, university, state’s consumer population) participate in the boycott, and the ultimate target of the boycott is a distant country in a dispute which the US is not involved.

To differentiate BDS from the boycott of Apartheid South Africa, the United States government then was advocating for a boycott of South Africa, whereas now the US opposes boycott and in fact maintains very friendly relations with the State of Israel.

Zachor Legal Institute is convinced that we are on the right side of the law in the stance that we take opposing Constitutional challenges to anti-BDS laws.  We are confident that when the courts ultimately rule based upon the merits of the state anti-BDS case as relates to protection under the First Amendment, something that has not happened yet (on-going case in Arizona), states’ anti-BDS laws will be ruled to be constitutional.  For more details, click here.

OK, but what about not supporting SJP’s free speech on a university campus?

From our perspective, SJP members have the right to spout anti-Israel, anti-Semitic diatribes to their hearts’ desire.  Lines are crossed though when this hate-speech is invited on the campus of a university under the auspices of the US Department of Education.  The Civil Rights Act Title VI restricts discrimination, and the Department of Education enforces such violations on campus.  A recent federal ruling has defined anti-Semitism as a form of discrimination.  For more details, click here.

So what trumps what in this case, protecting free speech or restricting anti-Semitism/discrimination on a university campus?

UCLA has clearly come down on the side of protecting free speech by agreeing to allow SJP to hold their conference on campus.  However, we suspect that UCLA may well be incorrect in their stance, and that according to the law, protecting against Civil Rights Title VI violations on campus takes precedence over protecting free speech.

We believe it is critical that the courts have the opportunity to hear the details of this particular case, and make a ruling.  Thus, we have filed a Civil Rights Act claim against UCLA, which is currently being investigated.

Our hope is that Jews and the State of Israel can be protected from anti-Semitism exactly by using the US Constitution, including free speech protection, as well as the Civil Rights Act, and all other relevant laws and provisions.