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Does Israel’s Anti-Boycott Law Muzzle Free Speech?

Six years ago, Neve Gordon was a prominent backer of the movement to boycott Israel due to its policies toward the Palestinians. Today, when asked whether he still supports the boycott, the Israeli professor says simply, “No comment.”

Gordon has a good reason to be reticent. In mid-April, the Israeli high court largely upheld a 2011 law that makes it a civil offense to call for a boycott of a person or body because of its affiliation to the state of Israel. Now, Gordon and other Israelis have silently distanced themselves from the campaign to boycott, divest from and sanction Israel even as the movement to do so, known as BDS, is gaining steam abroad.

“You have to be very careful how you phrase these things,” Gordon said. “For an article in the Forward, I don’t want to enter five years of lawsuits and tens of thousands of shekels of legal counsel.”

Israel has yet to see a court case based on the law, which, under certain circumstances, makes those advocating BDS subject to substantial fines. But by “chilling” public expression, it has already had an impact on debate and discourse in Israel, said Michael Sfard, a human rights lawyer. Chilling works in two ways, he said: Daunted by the threat of legal action, some organizations simply decide not to call for boycott. And those that do inevitably end up shifting time and resources away from their cause in order to defend themselves.

“The chilling effect narrows the democratic space, the free space in which people can act,” Sfard said.

Gordon pledged his support for BDS in a 2009 Los Angeles Times opinion piece, saying then that “times of crisis call for drastic measures.” Members of the Israeli Knesset denounced his remarks, as did the administration of Ben-Gurion University, where he is a professor of politics and government.

“You can say Israel is a terrorist state; you can say Israel violates human rights and nobody cares,” he said. “Supporting BDS is like committing incest in Israel.”

Two years after Gordon’s L.A. Times piece, the BDS call went from being taboo to being a legal offense. The law passed then by Israel’s Knesset made it possible for those who promote a boycott of Israel or its West Bank settlements to be sued in civil court for damages.

Human rights and civil liberties groups widely criticized the law. Even the Anti-Defamation League, a major opponent of the BDS movement, declared its concern that the law would “unduly impinge on the basic democratic rights of Israelis to freedom of speech and freedom of expression.”

Israeli civil society and activist groups immediately challenged the law in a case brought before the high court. Four years later, on April 15, the court voted 5-4 to reject their petitions. The court did strike down one key provision, ruling that the law went too far in allowing judges to order boycott proponents to pay unlimited sums to the plaintiff, independent of the damage caused by a boycott call. That, wrote the court, would have a “chilling effect on political expression and lively social debate.”

Now, a plaintiff must prove that she herself incurred actual damages as a result of the boycott call, and is entitled to collect these damages.

In a nutshell, this is “compensation for harm done,” said Amir Fuchs, head of the Israeli Democracy Institute’s Defending Democratic Values project. “In an important meaning, [the court] took the teeth from the law,” he said.

Yifa Segal, an attorney who submitted an amicus brief in support of the law, applauded the ruling: “It was about peoples’ rights, about the state of Israel’s interests, its economic interests to avoid delegitimization in the world and for private people to make a living and have respect,” she said. “If you put these two things on a scale, on the one hand you have freedom of speech and on the other you have these other rights, it’s a no brainer.”

To some observers, the ruling represents an important juncture in the high court’s history. Once considered the government’s most progressive arm, the court has, over the past several years, upheld legislation that critics call anti-democratic.

“It is worrying,” said Fuchs. “I must say, on the other hand, that it is not really surprising, because in the last years, changes [to the court] were already made.”

One example of the court’s recent shift is its refusal to hear a petition against the 2011 Nakba Law, which prohibits public funding for groups that publicly adopt the popular Palestinian perspective of viewing Israeli independence day as a day of mourning. The court said that it was not prepared to hear arguments against the law, since this law had yet to be fully implemented.

Still, for Sfard, the high court’s boycott law ruling represents a new phase in the court’s evolution. Previously, he said, the court has endorsed restrictions on conduct and even speech when it came to Israeli security. But on questions of expression it often behaved like American courts, upholding a robust notion of free speech. In America, as in much of the West, support for boycotts have been part and parcel of the free speech tradition.

And yet the concept of boycotts is a sensitive one for Israelis, going back to a long-standing boycott by the Arab world that led some global firms to avoid doing business with Israel.

BDS as a formal movement was initiated in 2005 by a group of Palestinian civil society activists. The movement’s stated goals are three-fold: to end Israel’s occupation and dismantle its separation barrier; to recognize the full rights of Arab-Palestinian citizens of Israel, and to promote the return of Palestinian refugees to their homes, per United Nations resolutions. BDS’s detractors say that this last point would alter Israel’s demographic reality, making Jews a minority in their own state. But not all boycott advocates are BDS advocates. Some reject one of more of the movement’s goals or back only a partial boycott, focusing on goods from Israel’s settlements in the occupied territories.

The new law, says a supporter, is ‘for private people to make a living.’

Up until 2011, only a handful of Israeli organizations called for BDS. One such group was the Coalition of Women for Peace, a registered not-for-profit group inside Israel that was among those that petitioned the high court to overturn the boycott law.

From 2006 to 2011, the organization was actively involved in BDS. It campaigned for a Norwegian pension fund to divest from Israel, and staged a protest against an Ahava cosmetics store in Tel Aviv. (The company has facilities in the Israeli-occupied West Bank.) After the 2011 law passed, the group’s BDS activism ground to a halt. Within hours of the Knesset ruling, the coalition changed the language on its website.

“Ever since, we don’t really promote BDS, because it is a huge risk to take — a huge, huge, huge risk,” said Maayan Dak, co-coordinator of CWP. “The sanction would be to close us down.”

The group also founded Who Profits, an information center on companies that benefit from the Israeli presence in the Palestinian territories and the Golan Heights in the North, which Israel annexed but which some in the international community consider occupied. Who Profits has operated as an independent research center since 2013.

CWP is very careful about what it will say publicly. “It is not something we can campaign on,” Dak said.

Another group that petitioned the high court against the boycott law was Gush Shalom, which is run by veteran Israeli peace activist Uri Avnery. Up until 2011, Gush Shalom endorsed a partial boycott of only Israeli products from West Bank settlements, and published a list of the products on its website. But the group took down the list after the Knesset law passed.

“It was a very, very infuriating, very demoralizing situation,” said Adam Keller, co-founder and spokesman for Gush Shalom. “We were completely within our civil rights to pursue this campaign and were suddenly shut down.”

Other Israeli groups have defied the law since 2011, and say they will continue to do so, consequences be damned. The dovish organization Peace Now initiated a campaign after the passage of the Knesset law. Like Gush Shalom, the organization endorses a partial boycott, one of settlement products only. But this, too, falls within the law’s purview.

“The motivation to call for people not to buy settlement products is higher than it was before the law and the decision,” Peace Now director Yariv Oppenheimer said.

Boycott From Within, a small group of activists which endorses full BDS, is continuing to try and pressure musicians not to play in Israel. Group co-founder Ronnie Barkan said he opposed the petition against the law to the high court in part because he sees the high court itself as a vehicle for “apartheid.” Plus, he said, “The law serves our purpose. To every conscientious person around the world, it exposes Israel for what it is. So why fight that?”

Since the law has yet to be tested in an actual suit, it’s not entirely clear who is subject to the ruling. Israeli legal experts agree that the law targets Israeli citizens who call for a boycott of Israel or the territories it controls. But beyond that, things can get murky.

Sawsan Zaher, a lawyer with the Adalah legal center, which also petitioned the high court against the law, had this interpretation: Palestinians in the occupied West Bank, where BDS is popular, are not subject to the law. But Palestinian residents in East Jerusalem — which Israel annexed after 1967, a move that the international community rejects — are subject to it, she said. So, too, she said, are foreign activists who call for boycott from inside Israel.

Take, for instance, Rebecca Vilkomerson, director of Jewish Voice for Peace, an American organization that endorses BDS. Though Vilkomerson is not an Israeli citizen, she comes to Israel frequently, is married to an Israeli and has children with Israeli citizenship. According to Zaher’s reading, were she to call for BDS inside Israel, she, too, could be sued.

Vilkomerson is unfazed. “I am very aware how, even as a noncitizen, I am of the most privileged class in Israel, and it would not keep me from expressing my support for BDS,” she wrote in an email to the Forward. “To the contrary, it only re-doubles my support.”

With the high court ruling in place, Israeli law firms devoted to countering BDS are mixed on whether the law serves their purpose.

“It’s not going to be a revelation in terms of our work, unfortunately,” said Nitsana Darshan-Leitner, founder of Shurat HaDin, a firm that says its mission is to “go on the legal offensive against Israel’s enemies.” She said that the burden on complainants to prove that they have been financially damaged by a boycott call is too onerous to make the law an effective tool.

But Segal, who directs the international program of the Legal Forum for the Land of Israel, a law firm founded to defend settlers in Gaza and in the northern West Bank, sees the new law as useful. Her group is monitoring organizations in Israel that have called for boycott in the past, she said, including several that petitioned the high court to strike down the law.

“If they continue violating the law, we will look into ways to enforce it in the court of law,” Segal said.

Contact Naomi Zeveloff at [email protected] or on Twitter, @naomi zeveloff

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