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