Ethics @ Work: When is speech not speech?

Boycott calls skirt the narrow line between free expression and action.

By ASHER MEIR
The Arab League called for a boycott of “Zionist products” already in 1945, and ever since, Israel has been the frequent subject of boycotts and boycott calls. The most prominent recent effort is the so-called BDS (Boycott, Divestment and Sanctions) initiative.
In response, Israel has taken various legal and diplomatic steps in attempts to fight and reverse these actions. The most recent, and perhaps most controversial, is the anti-boycott law passed this week in the Knesset. The bill, known as the “Bill to Prevent Harm to the State of Israel Through Boycotts,” provides two important sanctions against boycott calls: such calls could be the grounds for a lawsuit by an Israeli business that demonstrated that the boycott call caused it a loss, and they can be the grounds for the denial of government funding.
Proponents of the law claim that it is needed to defend Israel against attempts to destroy its economy and its legitimacy; opponents claim that it will stifle even legitimate protest.
When is it appropriate to limit the exercise of free speech? How does the new law measure up on these criteria? Any democracy must protect political speech, that is, the rights of citizens to express their views on pressing public issues that the electorate as a whole must decide on. But any democracy also must prevent this right from being a shield for incitement or intimidation, which are themselves threats to free expression and democratic decision making. They also need to prevent this right from being a threat to the very existence of a democratic regime.
A well-known expression of the appropriate limits to free speech is that of US Supreme Court Justice Oliver Wendell Holmes Jr. in 1919: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” The man shouting fire is not trying to persuade others of the rightness of his political opinions; he is trying to cause havoc through a subterfuge.
What about calls for a boycott? It seems to me that they have more in common with ordinary political speech than with shouting fire in a theater. It is true that the law does not sanction a person for any kind of criticism of Israel or its actions; it also does not sanction someone who himself refuses involvement with any Israeli entity due to his political opinions. It affects only someone who is trying to move others to action. But calling on someone to refuse to deal with an Israeli company or organization is hardly a “clear and present danger” (Holmes’s elaboration of his criterion). A boycott call can be a sincere act (not a subterfuge) calling for a safe and legal action – in fact, a lack of action.
It is true that Holmes’s 1919 decision is not the last word on free speech and on the fine line a democracy must sometimes draw between protecting rights within a democracy to protecting the democratic regime itself. But the restrictions in the current law are so broad and vague that a very high bar would be needed to justify them. A call for a “cultural, academic or economic boycott” of any “person or body” because of its relationship to “the State of Israel, any of its institutions or area in its control” would trigger the law’s sanctions.
Against the high bar, we would need to justify such a law and consider how middling is the true extent of the danger to our democratic regime presented by the various boycott measures. The boycotts are hardly strangling Israel’s culture, academy or economy; they are more of an annoyance than a true threat. All of the international boycott measures together could hardly be deemed a “clear and present danger,” so much the more any particular individual who calls for a boycott of some particular “person or body.”
It is certainly worth considering the ethics of boycotts themselves. Not every sentiment of political opposition justifies an act of protest; we don’t find, for instance, that people boycott members of opposing political parties. Calling for others to protest ups the ante even more, and a protest that causes substantive damage like a boycott is certainly more extreme than a demonstration or a petition. But these considerations themselves belong within the political discourse and not beyond it in the area of legal civil sanctions.