Ethics@Work: Is a call for a boycott a word or a deed?

Boycotts against Israeli businesses are intended not to change their particular business practices, but rather to pressure the country as a whole to change its political priorities.

This column recently discussed the newly passed anti-boycott law in the light of the distinction between speech, which is protected, and acts, which the law may fairly limit in the public interest. I proposed the standard of Oliver Wendell Holmes Jr., who asserted in 1919 that the freedom of speech does not extend to falsely crying “fire” in a crowded theater. This is not an attempt at persuasion or an expression of a point of view, rather it is an act, a malicious act.
In applying this standard to the anti-boycott law, I drew attention to three aspects of the boycott calls forbidden by the law: 1) They may be based on sincere political opinions; 2) The act they call for (refraining from buying from or working with certain groups) is itself legal; 3) The act is in fact a default, or lack of an act.
I suggested that all three of these considerations distanced the forbidden boycott calls from falsely shouting “fire” in a crowded theater.
It would seem that the above is an inappropriate application of Holmes’s standard because the kind of speech forbidden in his ruling involved all three of these aspects.
Charles Schenck was an American socialist who opposed US participation in World War I. He distributed leaflets urging young men to refrain from enlisting in the US Army. There is no reason to doubt that Schenck’s point of view was sincere and defensible, that the action called for was legal and that he was calling for a lack of action. Despite these considerations, Holmes, writing for a unanimous court, concluded that in the context of a nation that had already decided to go to war, this speech constituted a “clear and present danger”: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”
Another consideration mentioned in the judgment is that of a “conspiracy.” Schenck was not merely advising a neighbor to refrain from enlisting; this would certainly be considered permissible speech. Rather, his stated goal was to interfere with the war effort.
Free expression of political opinions must have a privileged place in any free society.
If any citizen believes that the country is adopting the wrong course of action, he must have the right to say so and the chance to persuade his fellow citizens. However, pending his success in persuading the country to change its course, the public must also have the ability to engage in whatever course of action it has decided on.
Schenck must have the right to argue that the United States should stay out of Europe. But once the decision has been made to participate in the war, the US may defend it ability to effectively pursue its decision and enlist soldiers and materiel.
If we were to apply the same standard to the boycott law, we would state that those who oppose Israel’s policy in the territories must have the right to argue that these policies should be altered. But once these policies have been decided upon in a legitimate process, Israel may defend its ability to pursue its policies and defend its economy from destructive boycotts.
Here also the “conspiracy” consideration plays a role. In the context of a competitive market system, any effort to concentrate market power can be considered a kind of conspiracy.
If an appliance manufacturer urges his fellow manufacturers to limit production and keep prices high, that is not considered an instance of free speech; it is rather a violation of antitrust laws.
Why then aren’t everyday boycott calls limited by antitrust law? I believe the reason is that lawmakers consider these boycott calls expressions of consumer sovereignty that embody rather than limit competition.
Just as consumers may prefer cosmetics with certain characteristics, and be willing to pay the price, so may consumers prefer cosmetics that are not tested on animals and be willing to pay the price.
It doesn’t really matter that it is legal to test cosmetics in this way. In this way the market will provide the combination of quality and price favored by consumers, including aspects of product quality relating to the production process. After all, there is no particular public interest in have cosmetics on the market that are tested on animals.
Boycotts against Israeli businesses are intended not to change their particular business practices, but rather to pressure the country as a whole to change its political priorities.
Furthermore, there is a clear public interest in creating demand for Israeli products and even in the economic success of factories in the territories.
According to the standard enunciated by Holmes, such a boycott could well be considered “a substantive evil that the Knesset has a right to prevent.” Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).