The Hypocrisy of the Anti-BDS Lawsuit

The American Studies Association is being sued by some of its members for a resolution supporting the Boycott, Divest, Sanctions (BDS) movement. Kenneth L. Marcus, the president of the Louis D. Brandeis Center for Human Rights Under Law which is organizing the lawsuit, said: “People who join an academic association have a right to rely on the association’s representations about what its mission is. This is about the betrayal of an organization’s fundamental purpose.” No, this is about an opinion over what fulfills or betrays an organization’s purpose. The ASA’s purpose includes “promotion of the study of American culture” and according to the lawsuit, the “operation of the ASA as a ‘social justice organization,’ including through the promotion of a boycott against Israel, is outside and inconsistent with the purpose of the ASA’s constitution.”

But the ASA is trying to protest the threats to academic freedom in Israel. Whether they are right or wrong, whether their tactics are correct or misguided, it would be extraordinary for a court to rule that scholarly organizations are not allowed to act in defense of other people’s academic freedom.

Eugene Kontorovich, a professor at Northwestern University’s Pritzker School of Law who is advising the plaintiffs, claimed: “There is freedom of association in America, but part of that freedom is when people support associations with their money and their human capital they need to know what they’re getting.” What utter garbage. Is Kontorovich actually claiming that a BDS resolution is a form of fraud against the members of the ASA? When people support the ASA, then they are getting an organization run by the elected leaders of the ASA. If you want to change the ASA, elect different leaders. If you don’t like the ASA leadership, you can leave it and start your own group. But going to the courts to demand a ban is wrong. It’s extraordinarily dangerous to assert that freedom of association ends whenever an organization supports a cause that a member doesn’t like.

I think all boycotts are stupid and worse than useless. I opposed (and violated) the boycott of the University of Illinois for firing Steven Salaita. I wrote a book denouncing Rush Limbaugh, but I oppose the boycotts against him and his advertisers. I oppose the US government’s imposed boycott of Cuba. I oppose the boycott of North Carolina for having dumb legislators. And I oppose the boycott of Israel. And, no, I don’t care if boycotts are occasionally effective and sometimes promote social justice. I still think it’s wrong to use economic intimidation to get your way, even if your way is just. But one thing I hate more than boycotts are people who try to use the power of government to punish people who support boycotts.

George Leef celebrated the lawsuit, arguing that “Non-profit organizations such as the ASA have legal boundaries that are not supposed to be transgressed, boundaries that should keep activists from using them for their own purposes.” Of course, Leef works for a 501(c)3 non-profit, and his essay appears on Minding the Campus, which is also a 501(c)3 non-profit. The Louis D. Brandeis Center for Human Rights Under Law, which is helping to sue the ASA, is also a 501(c)3.

There is nothing wrong with activists such as Leef using 501(c)3 non-profits for their own political purposes. Nor is it wrong for scholarly organizations to stand up for academic freedom. The free marketplace of ideas, not the dictates of the government, should decide whether BDS is a defense of, or a threat to, academic freedom. This is frivolous litigation designed for the sole purpose of getting the government to suppress the freedom of speech of a private organization. It should be condemned by everyone on all sides of the BDS issue, and anyone who believes in liberty.

Consider this: Minding the Campus promises on its website to provide an “honest engagement of all sides,” when in fact it is a conservative organization that excludes many leftist views (such as, for example, the pro-BDS viewpoint). Should activists be able to sue Minding the Campus if they feel it is violating the organization’s purposes? Should the ASA be able to sue the Louis D. Brandeis Center for Human Rights Under Law for failing to follow its mission to “promote justice for all”? Of course not. Let debate, not courts, decide these issues.

Leef is one of those fervent anti-government conservatives who would like to see government influence expunged from higher education and much more. Yet when the government is the courts, and a group he dislikes is being sued, suddenly he decides that government intrusion is a wonderful idea. Leef and those behind this lawsuit are calling for the government to impose ideological restrictions on private organizations. Even if a majority of the members call for an organization to take a stand, they believe the government should censor the organization and prohibit it from speaking out on this topic. This is a demand by conservatives for government suppression of a private organization’s freedom of speech, and it is nothing but unprincipled, absolutely indefensible hypocrisy.

9 thoughts on “The Hypocrisy of the Anti-BDS Lawsuit

  1. Advising the plaintiffs in this suit, Professor Eugene Kontorovich asserts that ASA members “need to know what they’re getting.” In the interests of disclosure, those members may be interested to know that Kontorovich is an American emigre living in the illegal Israeli settlement of Neve Daniel, near Bethlehem. This lawsuit is worse than frivolous- it’s pernicious.

  2. You seem to have a consistent approach to the issue of boycott, and a laudable but inflated view of the potential of the free market-place of ideas. Wonderful, but the dice are loaded, the roulette wheel is biased, the croupier has fiddled the deal and the House has three extra aces in the pack. If not BDS, then what strategy do you propose activists to employ to secure justice for Palestine, or are you just in favour of the status quo?

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