Israel's Supreme Court heard arguments on Wednesday in a challenge to the watered down anti-boycott law that was passed by the Knessetin July 2011. The law imposes sanctions on any individual or entity that calls for an economic
boycott of Israel’s settlements in the West Bank or of Israel itself. This description of the hearing bothered me greatly.
At the time the law was passed, Knesset legal adviser Eyal Yinon
warned the Knesset plenum that the legislation was "borderline illegal"
since it could violate freedom of political expression.
Even
Attorney-General Yehuda Weinstein reportedly called it "borderline"
defensible and admitted in defending the law that it had serious
problems.
Weinstein's main argument for not striking it down yet
was that the law has never been used, as opposed to making any positive
legal arguments in its favor.
At Wednesday's hearing, Yinon partially reversed himself, formally defending the law on behalf of the Knesset.
Yet,
his defense was at most lukewarm. The court questioned him sharply how
he could defend the law when he himself had "almost killed" the law.
Yinon
responded that he still disagreed with the law and thought it should
have been drafted differently, but that ultimately he had to defer to
the Knesset, which was not bound even by his opinion as legal adviser.
According to Yinon, once the Knesset had voted, his job was to represent the Knesset.
Yinon is right. He's not a party. A lawyer's job is to advocate for his client, whether or not he agrees with the client. The court's line of questioning is completely inappropriate and attempts to take advantage of the fact that Yinon's client is a public body and not a private entity.
Something smells rotten here. I look for the law to be thrown out. Hopefully, the Knesset will overcome the inevitable hysteria and pass another law that overrules the court. It's been a long time since that's happened in our court-dominated tyranny, but the Knesset is supposed to have the power to overrule the court in the Israeli legal system.
Under the terms of Israel's new anti-boycott law, those who call for a boycott of the Jewish state may be sued for damages. Former political adviser to Yasser Arafat and current 'Israeli Arab' MK Ahmed Tibi (pictured here with his good friend Muammar Gadhafi) has called for a boycott of Israel. Will anyone step to the plate to sue him?
Arab MK Ahmed Tibi (Balad) has called on the world to boycott all Israeli companies that help perpetuate the “injustices” of the Israeli occupation of the West Bank, in an op-ed published in the New York Times earlier this week.
Tibi wrote the op-ed as a direct response to the Knesset's recent approval of the boycott law forbidding individuals or organizations from publicly calling for a boycott against Israel or the settlements under its control.
In the op-ed, Tibi declared that his support for the right to boycott stems from his belief in ending the “Israeli occupation of Palestinian territory”, in granting “equal rights for Palestinians and Jews”, and implementing the right of return “for Palestinian refugees forced from their homes and lands in 1948”.
According to Tibi, MK Alex Miller (of Foreign Minister Avigdor Lieberman's Yisrael Beiteinu party) has threatened to sue him overhis calls to “boycott the illegal Jewish settlement of Ariel”, a protest he posits would be “unremarkable in a proper democracy with untrammeled free speech”.
I certainly hope that MK Miller will sue Tibi and that other MK's will join in. It is long overdue.
Double standards in criticizing Israel's anti-boycott law
Law professor Eugene Kontorovich points out some of the double standards being invoked by critics of Israel's anti-boycott law.
Most European nations – and Israel – have numerous laws criminalizing speech that would not conceivably pass muster under the First Amendment. This does not mean these countries deny freedom of speech; merely that there are competing ideas.
But even the US has a law against boycotting Israel. It has been on the books for decades, and has been regularly enforced, but no one has suggested it is unconstitutional – and that is for a law protecting another country’s economy. Moreover, Israel’s law, unlike the American one, applies only to organizing boycotts, not to actually adhering to one.
In any country, guarantees of free speech do not apply to speech that causes actual harm, – like yelling ‘fire’ in a crowded theater. Some countries take this quite far. Great Britain has strong libel laws that prevent people from truthfully condemning public officials. While the law is widely criticized, no one has suggested Britain has thereby lost its democratic status. Critics of Israel’s anti-boycott law denounce it as fascist. In Europe, calling others fascist has gotten prominent politicians prosecuted – prosecutions that have not provoked lectures on free speech from the EU or America’s State Department.
EVERY NATION has laws against conspiracies to cause economic harm: antitrust laws prohibit speech when its purpose is to unfairly cause economic harm. And the common law makes it a tort to “interfere with prospective business advantage,” i.e. scaring off someone’s customers.
The anti-boycott law prohibits speech intended to cause economic harm to businesses solely because of their national identity. Nondiscrimination laws commonly ban plans to deny business to specified groups of certain national or ethnic origins.
Israel’s new law bans discrimination against businesses because they are Israeli.
Most European states – and Israel – have laws prohibiting speech that is perceived as “hateful” or which simply offends the feelings of particular groups. Often such speech expresses important viewpoints.
A boycott of Israel promotes hatred of Israel, and certainly offends the vast majority of Israelis. To be sure, boycott supporters argue that at least when it comes to settlers, such hatred is deserved, but that is always the opinion of those whose speech is blocked by such laws.
The boycott movement is designed to imperil the State of Israel, and can actually do so. This danger outweighs the benefits of allowing such speech, especially since the law does not in any way limit advocating policies or viewpoints that such boycotts are supposed to promote. Indeed, the law has a characteristic crucial for free-speech scrutiny – it is “viewpoint neutral.”
That is, it applies to boycotts of Israel whether organized by the left wing or the right wing.
Like most European democracies, Israel’s constitutional protection of speech has long been narrower than America’s.
One example is that speech restraints have long been used against right-wing groups. Just recently, a prominent right-wing activist has been prosecuted for “insulting a public official,” after denouncing those responsible for expelling Jewish families from Gaza in 2005. In recent weeks, police have arrested several rabbis for authoring or endorsing obscure treatises of religious law that discuss (allegedly too leniently) the permissibility of killing enemy civilians in wartime.
Most saliently, the far-Right party of Rabbi Meir Kahane was kicked out of the Knesset because its views were deemed racist. Such actions manifestly constitute interference in political expression, and would clearly violate freespeech norms in the US, but that does not make them unconstitutional in Israel. Nor did these actions trigger alarm among the international community.
The cartoon at the top of this post was drawn by a young Russian immigrant named Tatiana Soskin. She attempted to affix it to a storefront in Hebron, was immediately arrested and was eventually sent to jail for two years. The New York Times, the 'human rights' organizations, the State Department (Mrs. Clinton's husband was the President at the time) and the Europeans were all silent. None of them came to Soskin's defense.
We are undoubtedly the only country in the World outside the United States to which the New York Times would pay this much attention. In an editorial in Monday's editions, the Times slams the anti-boycott law.
The law, approved in a 47-to-38 vote by Parliament, effectively bans any public call for a boycott — economic, cultural or academic — against Israel or its West Bank settlements, making such action a punishable offense.
It most certainly does not. The law creates a civil tort - which also exists in the United States. It's known as tortious interference in a contractual relationship.
It would enable Israeli citizens to bring civil suits against people and organizations instigating such boycotts, and subject violators to monetary penalties.
That's true. But if I organized demonstrations outside your store in order to prevent people from frequenting it, wouldn't you be able to sue me? And with good reason. Isn't that what's being done here?
Companies and organizations supporting a boycott could be barred from bidding on government contracts. Nonprofit groups could lose tax benefits.
Why should the Israeli government do business with and grant tax benefits to entities that wish to destroy it? Can they murder and also inherit?
As Elihu Stone pointed out in the Jerusalem Post (in an article that first appeared here):
Adherence to democratic principles neither demands nor compels a democratic country to aid and abet all actions of those who effectively deny it the right to self-defense and actively advocate for its dissolution by any means short of armed assault. Moreover, those who would squash others by economic means should hardly be heard to complain when their intended victim chooses to withhold its economic support (in the form of tax breaks, etc.) from them.
Back to the Times:
With peace talks stalemated, Palestinians are searching for ways to keep alive their dream of a two-state solution, including a push for United Nations recognition this fall. Israel risks further isolating itself internationally with this attempt to stifle critics.
Actually, the dream the 'Palestinians' are pursuing at the United Nations is most definitely not a 'two-state solution.' As Abu Mazen himself wrote on the Times' editorial page two months ago:
Palestine’s admission to the United Nations would pave the way for the internationalization of the conflict as a legal matter, not only a political one. It would also pave the way for us to pursue claims against Israel at the United Nations, human rights treaty bodies and the International Court of Justice.
And please don't tell the Times that the US has had remarkably similar laws on its books for 35 years. I wouldn't want to see the uber-Liberal Left calling for them to be repealed.
UPDATE 5:17 PM
The Times edited out the last two paragraphs of the editorial. Here they are (Hat Tip: Soccer Dad).
“For years now there have been laws in the United States that come with fines and prison sentences for anyone who calls for a boycott of Israel, and yet the Israeli who persuades American companies to boycott us is completely exempt. That is ludicrous,” Mr. Elkin was quoted as saying in the popular Yediot Aharonot newspaper. He was referring to a federal law in the United States that forbids Americans from complying with, furthering or supporting a boycott of a country that is friendly to the United States.
We are also opposed to boycotts of Israel, but agree this is a fundamental issue of free speech.
Israel’s conservative government is determined to crush a growing push by Palestinians and their supporters for boycotts, disinvestment and sanctions against Israel. Since last year, many Israeli artists and intellectuals, as well international artists, have canceled performances and programs in Israel and the West Bank to protest the settlements. The bill’s sponsor, Zeev Elkin, said his concern was that the calls for a boycott “increasingly have come from within our own midst.”
Plurality of Israelis blame Left for societal schisms
Much of this poll deals with the anti-boycott law, and I discussed that aspect of it here. But Aaron Lerner has the full results and they include these gems.
Are you concerned about the future of democracy in Israel? Yes 45% no 54% No reply 1%
Do the controversial laws promoted by the Right strengthen or weaken Israel? Strengthen 46% Weaken 42% No reply 12%
Who is primarily responsible for the schism in Israeli society, the tension and the uproar since the laws? Netanyahu 15% Livni 5% Right wing MKs 17% Leftist groups 35% No reply 28%
Something tells me the New York Times (and Haaretz) won't be reporting that. Heh.
LATMA tribal update: Israel's anti-boycott law, the art of protest, and Bedouin princes steal water pipes
Here's the weekly LATMA update, which talks about Israel's new anti-boycott law, shows how to protest and shows how Bedouin princes are stealing water pipes. And there's a good Hillary Clinton joke (make sure to WATCH or you will miss it).
The new anti-boycott legislation, an alternative view
Elihu Stone and I go back more than 50 years. He sent me this essay about the anti-boycott legislation that was passed on Monday by the Knesset.
The Anti-Boycott legislation recently enacted by the Knesset has brought a firestorm of criticism from many claiming that such legislation is inherently undemocratic. Please allow me to present an alternative viewpoint:
Declaring that boycotts, per se, are illegal might be anti-democratic. However the subject legislation does not criminalize boycotts. Rather, the legislation provides a balance, allowing those who wish not to deal with Israel, even indirectly, to act as they see fit - so long as they do not interfere with otherwise binding contracts by calling for the economic destruction and international sanction of others who think differently than they do.
A careful reading of the legislation shows that it merely provides the possibility of defense - via an appropriate civil cause of action- for those whom the BDS (Boycott- Divestment- Sanction) supporters mean to strangle economically - and, arguably, undemocratically. Adherence to democratic principles does not demand - nor should it compel - any democratic institution to aid and abet all actions of those who effectively deny it the right to self defense, and actively advocate for its dissolution by any means short of armed assault. Moreover, those who would squash others by economic means should hardly be heard to complain when their intended victim chooses to withhold its economic support (in the form of tax breaks, etc.) from them. Israel's refusal to support its detractors in their declared efforts to undermine Israel's economy and blacklist all of its academic and cultural institutions is eminently reasonable - and, albeit long in coming, presents no unfair surprise to those who have consistently exploited democratic rhetoric and institutions in the service of most undemocratic ends.
Any fair assessment of the Anti-Boycott legislation must take into consideration the relevant history and context. the BDS Movement is hardly a being sui generis, springing spontaneously from thin air. Those with a sense of regional history will recall the Arab boycotts of Jewish and Zionist interests which began well before 1948 when the modern state of Israel was recognized by the U.N. Indeed, the Arab League boycott of Israel remains in effect today, administered by the Damascus-based Central Boycott Office (CBO), a specialized bureau of the League. The Arab Boycott - as does the BDS boycott - targets not only Israel and her institutions, but also companies that do business in or with Israel. A fair read of the BDS Movement's website reveals that ultimate goal of that movement, too, is the dismantling of the Jewish state - continuing the assault on her initiated by Arab armies in 1948 - via economic means.
Anti-Boycott legislation is hardly unprecedented in the context of the Arab-Israeli conflict. In 1977, the United States Congress passed laws making it illegal for U.S. companies and individuals to cooperate with the Arab boycott against Israel and authorizing the imposition of not only civil but also criminal penalties against U.S. violators. The legislation that Israel has enacted is far less onerous for its opponents than the U.S legislation is for its opponents. On the other hand, the BDS Movement's boycott constitutes at least as great a threat to Israel, any who associate with her and to the very notion of free trade as the original Arab Boycott. Israel's legislation appropriately withholds Israeli governmental support from those who work toward Israel's destruction by economic means and provides a mechanism for Israel's constituency to defend themselves from (now) tortious interference with third-party contracts, premised solely on their connection to Israel, its institutions or areas under its control.
A majority of the Israeli Knesset has now agreed that Israel will no longer be complicit in engineering her own demise. The legislature has asserted its right to re-level the economic playing field and provide Israel's professors, farmers, merchants, entrepreneurs, hospitals and cultural institutions with some mechanism for defending themselves against the tyranny of those who would concentrate their economic might to wreak havoc upon them by precluding any association and commerce with them due only to some connection with the State of Israel, any of its institutions, or an area under its control (the Disputed Territories).
The wording of the Anti-Boycott measure might be improved upon; the Israeli courts (which the BDS boycott as institutions of Israel) will undoubtedly be called upon to interpret its scope and meaning, over time. However, this bill, crafted to allow the possibility of recourse - via legal challenge of those who call trans-nationally for trampling the economic, cultural and academic the freedom of Israelis and Israel's trade partners - serves to promote and maintain democratic ideals, such as freedom of association, economic substantive due process and - yes - the free exchange of ideas.
Indeed. Now, if only the Israeli Supreme Court would see it that way.
Our anti-boycott law may be unpopular with the BDS'ers and their supporters, but most Israelis think it's a good idea.
The Boycott Bill, which passed by a majority of 47 to 38, stipulates that anyone calling for an economic, cultural or academic boycott against the Jewish communities in Judea and Samaria will be unable to participate in government tenders. In addition, any person who considers himself a victim of a boycott could sue the boycotter for compensation.
A ‘Panels’ Institute poll for the Knesset Channel concludes that 52% of Israeli population support the new bill, and 31% oppose it.
43% are of the opinion that the bill will diminish world opinion of Israel, and 39% believe that the bill will have no such effect.
Now keep in mind that 20% of the country is Arabs who almost certainly oppose the anti-boycott law, so the Jewish majority that supports the law is actually much larger.
Israel's Knesset passed the so-called 'Boycott Law' on Monday night by a vote of 47-38. Four 'human rights' groups have already appealed the law's constitutionality to Israel's Supreme Court. This is from the first link.
The new law 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. It also prevents the government from doing business with companies that initiate or comply with such boycotts.
Elkin defended the measure, calling it “vegetarian” and saying that its meat was removed when the clause making boycotts a criminal offense was removed.
“The law says that if you harm me [with a boycott], I have the right to ask for damages, and if you boycott the State of Israel, don’t ask it for benefits,” he said. “It was significantly softened.”
But the law may not stand up to judicial scrutiny.
MK Yohanan Plesner (Kadima), one of the bill’s most vocal opponents, sent a letter to Knesset legal adviser Eyal Yinon on Sunday, complaining that the bill may be unconstitutional.
In response, Yinon said the legislation was “borderline illegal,” but that he would not stop the Knesset from voting on it.
“The broad definition [in the law] of a boycott on the State of Israel is a violation of the core tenet of freedom of political expression,” Yinon wrote.
He added that the law’s “goal is to affect the political debate on the future of Judea and Samaria, a debate that has been at the heart of the political debate in the State of Israel for over 40 years.”
Four 'human rights' organizations have already challenged the law in the Supreme Court.
Groups participating in the appeal include Adalah - the Legal Center for Arab Minority Rights in Israel, the Public Committee Against Torture in Israel, Physicians for Human Rights and Coalition of Women for Peace. The four organizations sent a letter to Knesset Speaker Reuven Rivlin, Justice Minister Yaakov Neeman and Finance Minister Yuval Steinitz demanding a halt in the approval process of the law.
According to the rights organizations, the "Boycott Bill" is "completely unlawful which limits freedom of political expression and is contrary to international law."
Furthermore, the groups allege that the law also "forces residents of east Jerusalem to cooperate with the occupation" and "violates the principle of equality by attempting to defend one political position while limiting other positions."
"Not only is the Israeli Knesset trying to silence the protest against the occupation - it is also trying to impose on victims and those in opposition to the occupation, to cooperate and actively support it," Director-General of Adalah Attorney Hassan Jubrin said. "[The bill] does not meet any criteria of international law and we believe that [the bill] will not receive the approval of the Supreme Court."
It is impossible to distinguish between a boycott which is unlawful and punishable, with another boycott against an industrial company or a municipality of some sort, Jubrin continued. "The distinction between different types of damaging protests exposes the unacceptable political intention of this law, which seeks to benefit only one side of the political spectrum and to silence public debate on a central and controversial issue," Jubrin added.
But what's most curious is the way the New York Times covers this story. If you buy the Times in New York State on Tuesday morning, you will get a different version than the one that's online and linked above. And it's too bad that the version in New York State has two key sentences that the Times didn't want the rest of you to see (Hat Tip: Soccer Dad).
“For years now there have been laws in the United States that come with fines and prison sentences for anyone who calls for a boycott of Israel, and yet the Israeli who persuades American companies to boycott us is completely exempt. That is ludicrous,” Mr. Elkin was quoted as saying in the popular Yediot Aharonot newspaper.
He was referring to a federal law in the United States that forbids Americans from complying with, furthering or supporting a boycott of a country that is friendly to the United States.
But of course the Times omits those two sentences, which make those Israelis sound a little less crazy, don't they?
I am an Orthodox Jew - some would even call me 'ultra-Orthodox.' Born in Boston, I was a corporate and securities attorney in New York City for seven years before making aliya to Israel in 1991 (I don't look it but I really am that old :-). I have been happily married to the same woman for thirty-five years, and we have eight children (bli ayin hara) ranging in age from 13 to 33 years and nine grandchildren. Four of our children are married! Before I started blogging I was a heavy contributor on a number of email lists and ran an email list called the Matzav from 2000-2004. You can contact me at: IsraelMatzav at gmail dot com
