Law Professors Claim Groups Have no Legal Right to Boycott or Presumably Criticise Israel

I was out-of-town and received a quotidian copy of the Wall Street Journal at my hotel. I was not surprised to see the usual neo-con op-eds of war criminals Douglas Feith and Paul Wolfowitz who played key roles in President George Walker Bush’s terrorism against the nation of Iraq in 2003. I was not surprised to see denials of climate change, and vituperative harangues against the courageous student uprisings against campus racism and ethnocentrism. Fair enough. One does not anticipate daily quotations from Marx’s Das Kapital in a Rupert Murdoch-owned newspaper. However, one of the op-eds that I perused is such a threat to academic freedom and the principles of the AAUP, that it must be challenged.

Law professors Eugene Kontorovich and Steven Davidoff Solomon from Berkeley and Northwestern penned an op-ed, “Those Israel Boycotts Are Illegal,” that appeared on December 1. They claim in a reckless and unseemly display of legal overkill, that it is illegal for any academic-professional organisation to support the Boycott, Divestment and Sanctions Movement (BDS). They assert, unless the founding charters of these organisations expressly encompass boycotts, that any subsequent non-chartered activity is illegal. This specious reasoning is similar to those of Justice Antonin Scalia’s strict constructionist originalism in examining constitutional rights as opposed to the more liberal “living constitution” approach. A common argument from the right is, unless a right is included in a founding document, constitution or organisational, it does not exist.

These professors deploy the privileged journalistic real estate of the Wall Street Journal to denounce the BDS movement as “moral myopia and academic perversity.” They seek to reserve, of course, for themselves the right to express an extramural utterance but to ban, sue and destroy academic organisations that are either considering or have adopted, out of moral principle, a boycott of Israeli academics or institutions. It is obvious the professors’ vehement opposition to the growing BDS movement influenced their legal argumentation, that academic organisations are illegal enterprises if they vote to boycott Israel. Their purpose is to intimidate by name the American Anthropological Association, American Studies Association, National Women’s Studies Association, American Historical Association (AHA), and the Modern Language Association. They stunningly claim that colleagues who serve on their boards, can be sued and are liable for damages. In the United States, we must resist any effort to prosecute board members, who might even be opposed to BDS, for representing those organisations whose members support a boycott.

The AAUP opposes BDS–many of its members support it–but has defended the right of academicians through their collective actions to engage in such activity. Specifically, the AAUP opposes legislative reprisals, but more generally defends the rights of academics to express collectively themselves without the consequences of untamed legal assault against their group affiliations:

The AAUP opposes academic boycotts…But legislative interference in academic decision-making and with the freedom of scholars to associate and exchange views with their peers is even more dangerous than the academic boycotts this legislation is intended to oppose.

Congress chartered the AHA in 1889 during the presidency of Benjamin Harrison. Remember him? Professors Kontorovich and Solomon claim that since the charter did not include the right to boycott, any subsequent action outside its original intent is illegal. The carelessness and sloppiness of the professors’ research as revealed in their op-ed is palpable. The Historians Against the War, that I supported by signing their petition, is leading the effort within the AHA not to boycott but to condemn Israeli military attacks against Gazan institutions of higher education, and a withering control of faculty and student interaction throughout Palestine. It seeks AHA “monitoring (of) Israeli actions restricting the right to education in the Occupied Palestinian Territories.”

I would argue that any resolution, whether supporting a boycott or a plea for greater academic freedom in Palestine, is consistent with the AHA charter. The 126-year old charter emphasises “the promotion of historical studies” and the “broadening of historical knowledge among the general public.” Such a resolution stimulates, whether one disagrees with it or not, discussion and analysis of the historical issues in the region.

What I found particularly troubling was the law professors’ hostility to academic freedom. Whether one is acting as an individual or through an organisation, in this country it must be an unfettered right to articulate a position on a matter of public concern. I also wish to remind the authors that this is the United States and not the United Kingdom of Great Britain and Northern Ireland. Professors Kontorovich and Solomon take great pains to inform the reader that the Royal Institute of British Architects voted to boycott an Israeli architectural entity, only to rescind it when its attorneys advised them it might be illegal.

Here in the US, resistance, protest and I would hope robust and determined AAUP intervention would occur if academic organisations become targets of the Israel lobby with legal claims for adopting a position that supports the BDS movement. It is the principle of academic freedom that must protect the enterprise of academic expression on issues that affect our lives and world.

13 thoughts on “Law Professors Claim Groups Have no Legal Right to Boycott or Presumably Criticise Israel

    • As someone who was at the University of Arizona at the time of the boycotts condemning the “show me your papers” law–which I supported–including by many of the current erstwhile opponents of BDS, I always think that the claim that there is some moral reason why academic associations should be against boycotts is laughable. It’s situational and political, pure and simple.

  1. What type of organization is the author referring to in the final paragraph? The US Constitution contains no provision that I know of that protects individuals from experiencing retaliation from higher-ups in a *private* organization. The First Amendment only restricts governmental entities and government officials from retaliating.

    • Whether a private organisation chartered by the federal government has “rights” under the constitution is a question I find of interest. In any event, I did not refer to the constitution but more broadly to academic freedom rights. So I did not hit the tripwire of ignoring constitutional protection only for public entities.

      • OK, but your wording seems to also referencing non-academic, private organizations. There is no protection for public-oriented speech in those type of organizations that I know of.

  2. Whether a boycott is right or wrong is something that should be decided by argument, not lawsuits, and determined by the membership, not by lawyers. After all, much that universities do today was never anticipated by their founding charters, but no one imagines that they should face a series of lawsuits for, say, having an internet on campus.

  3. The argument is pretty simple here.

    There exist labor unions for professors among them the AAUP. As a labor union it is subject to labor law which gives it protections in some areas and takes away freedoms in others.

    There exist foreign policy lobbies. These are much more heavily regulated because history has shown they can easily become sources of bribery, internal subversion and invasion.

    There exist academic associations: the AAA, the the AHA, the MLA… As academic associations they are lightly regulated as to what kinds of activities they can engage in within their domains but are heavily regulated in terms of domain,

    Were the AAA to begin selling pharmaceuticals it would immediately be subject to advertising laws from the FDA and its academic freedom curtailed.

    If the AAA wants to join the global anti-Zionist movement along with European Leftist parties, Al Qaeda and Hamas they are free to do so. They are free to limit themselves to working against the “settlements” or collaborate in ethnic cleansing Israel and or America of its Jewish population. They are not free however to have the light oversight of academic organization while doing so. Becoming an agent either for or against a foreign government is the sort of thing that causes wars. Syria for example is experiencing blowback from having allied itself too strongly against the Iraqi Sunnis in the Iraqi civil war.

    Academic institutions will never be empower to make these sorts of choices for the people of the United States. Academic freedom should be an absolute freedom to publish. To protect that it can never be a freedom to actually take political action of any kind. Once academics or academic institutions take actions rather than write about them, they need to be subject to much greater scrutiny. Speech should be free, acts should be regulated.

    Since most of you all are leftists think about the right could do with the gigantic hole you are would be creating in USA law were anyone to agree with this. Say for example 2 academics got together and formed some petty academic group (say the modern theosophy association). And then rightwing individuals used that group to fund say the PJAK (anti-Iranian terrorist organization) even though it was on the USA’s terrorism watch list. Of course it wouldn’t be phrased as support it would “bringing them to campus with an honorarium”… Regardless of the academic thin cover this would still amount to PJAK being able to operate freely and openly within the United States which would make the USA a state sponsor of anti-iranian terrorism.

    You can continue to believe you should exist completely outside USA law. Certainly the UIUC caving in the case of another violent activist, helps to solidify that belief. But you are asking way too much from the AAUP to believe they can argue for some right for academic institutions to make policy in coordination with America’s enemies against America’s friends because some group of Academics thought it was a good idea.

      • Sure. To pick a few that would apply to BDS:
        Ribicoff Amendment (Tax Reform Act of 1976) forbid US companies and their subsidiaries from complying with or supporting a foreign country’s boycott of another country unless the US also approves of the boycott.
        Export Administration Act of 1979 creates powers of enforcement for the US Department of Commerce to the Ribicoff Amendment.

        Or to pick another one
        National Labor Relations Board section 8b-4 explicitly prohibit unions (like the AAUP) from engaging in secondary boycotts. Boycotting G4S, Motorolla… for refusing to boycott Israel would be a crime under the secondary boycott provisions.

        Or another Andrew Yoder v. Helmuth District Old Order Amish was a ruling against a boycott (shunning) holding that a boycott infringed on Andrew Yoder’s civil liberties and amounted to religious coercion. This would apply to Jewish students harmed by the coercive atmosphere BDS oriented professors and students are trying to create on campus by disallowing Israeli affiliation.

        The FTC has held that group boycotts can rise to the level of anti-trust violations. I.e. multiple universities acting in concert, explicitly what the AAA is aiming for have much greater degrees of regulation.

        There is no civil right to boycott. Boycotting is a regulated activity in the United States.

  4. Steven Lubet, a law professor at Northwestern who opposes BDS both because he opposes academic boycotts (as does the AAUP) and because he is less than sympathetic with their critique of Israel (on which the AAUP has no position at all), has written a piece severely criticizing the Kontorovich-Solomon op-ed, under the title “The Wrong Way to Resist BDS,” which readers may find of interest. It is here:

    http://www.thefacultylounge.org/2015/12/the-wrong-way-to-resist-bds.html

  5. Professor Lubet for months used very strong language in the Chicago Tribune against Dr Salaita: called him a “crank,” a “profane extremist”, referred to “vile ravings,” and egregiously accused Dr Salaita of “anti-Semitism”: the usual attempt to stifle debate and argumentation. Yet he tried to have it both ways in saying he should not be fired, yet states he would never have voted to hire him on the “merits.” He is in no position to say that because he is not a specialist in Dr Salaita’s area of expertise. Furthermore, in several email to me and other members of ILL Committee A, he strongly objected to the Illinois Committee A’s defence of Prof. Salaita on August 6, 2014.

    He particularly objected to one of our statements: “As a professor who was proffered an appointment in American Indian Studies, we are particularly concerned if a university would void a contract of a professor exercising a right of citizenship in protesting actions of another country that much of the global community including the U.N. Secretary General and even the U.S. State Department have found “disgraceful.”

    I am glad he is critical of the op-ed and am grateful for Hank’s “heads up.”

    Peace and end global violence!!.

  6. Thank you for your enlightening article Peter. The idea that academics can be prohibited from exercising their first amendment rights is ridiculous. the fact that law professors would be arguing this is frightening. lucky for them they have academic freedom to spout such nonsense in the public sphere. were they to attempt to use such shoddy reasoning in a peer-reviewed paper, one could wonder about their professional competence. Ultimately, Israel’s ever escalating brutality and deepening of the occupation will push more and more academics to support BDS, even if the idea is inherently problematic to them.

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