Does the new anti-boycott law harm free speech?

Today’s champions of free speech are yesterday’s censors.

By
July 17, 2011 23:07
4 minute read.
Peace Now boycott law

Peace Now boycott law_311. (photo credit: Ben Hartman)

 
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Israel’s parliament passed a law this week prohibiting economic boycotts against this nation. Since before the creation of the Jewish state, boycotts have been a major part of the Arabs’ war against any Jewish presence in the Holy Land. Today, economic boycotts have become one of the main tools for delegitimizing, intimidating, undermining and unfairly singling out Israel.

Israel’s new anti-boycott law immediately met with complaints that it violates free speech and is inconsistent with democratic values. Critics say the law itself will delegitimize Israel and alienate its supporters in Western democracies.

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Indeed, the US State Department and the European Union took the occasion to remind Jerusalem about the importance of free expression.

These criticisms are wrong as a matter of principle. More insidiously, they hold Israel to a standard never applied to other nations, and criticizes it for passing laws that are well within the western democratic mainstream. Moreover, the outrage over the anti-boycott law carries a dose of hypocrisy, as it ignores numerous other laws in Israel that are used to restrict political speech generally associated with the right wing.

There is no universal code of free speech. Determining what gets protection involves trade-offs between the very real harm that speech can cause and the benefit of free expression. Among liberal Western democracies, how that balance is struck varies significantly, depending on legal traditions and circumstances.

The United States has far more robust constitutional speech protections than almost any Western country.

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.

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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.

Israel’s current practice is clearly well within the limits of an open democracy. Singling out Israel for laws that are identical to, or just as restrictive as, laws on the books in America and Europe manifests the very problem that exists with the boycotts themselves – the application of an entirely different set of standards to Israel than to the rest of the free world.

Eugene Kontorovich is a professor of law at Northwestern University, where he teaches constitutional law, and has lectured at Israeli universities.

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