From taboo to tort – free speech and the Israeli ‘boycott law’

Maja Sojref examines how a law on the prevention of harm to the State of Israel exposes the tension between freedom of expression and national security.

On 15 April 2015, the Israeli High Court privileged concerns for national security over freedom of expression, when it confirmed the constitutionality of the Bill to Prevent Harm to the State of Israel by Means of Boycott. According to this 2011 law, the call to boycott individuals or institutions associated with the state of Israel or its settlements on the West Bank is defined as a civil wrong and those who call for boycott can be sued for compensation. While the court did strike down one provision, which would have allowed plaintiffs to claim compensation without evidence of actual damage incurred, it upheld all other components of the controversial bill.

This includes Article 4, which allows the Finance Minister to strip NGOs endorsing a boycott of Israel of their non-profit status by removing tax breaks. In response, Israeli and Palestinian civil rights organisations, such as Adalah, Gush Shalom or the Coalition of Women for Peace, denounced the “boycott law” as a back door for persecuting left wing organisations in Israeli society. In 2011 they petitioned the High Court against the bill, arguing that it stifled legitimate political debate and compromised democratic principles of free speech.

In the view of Justice Hanan Meltzer, however, who presented the majority opinion in the 2015 ruling against this petition, the prohibition of boycott constituted a proportionate restriction of freedom of speech in the interest of the state of Israel and its citizens. For Meltzer, a call to boycott represented not a legitimate contribution to democratic debate but rather an attack on the economic and political freedom of others purely on the basis of their affiliation with Israel. In Meltzer’s reasoning, through a prohibition of boycott the state thus protected private citizens of “collective punishment”. Meltzer moreover presented the law as a legitimate defence of the Israeli state against a continued threat to its existence through economic boycott. Citing the Arab League boycott of Israel, Meltzer implicitly suggested that the Boycott, Divestment and Sanctions Movement (BDS) represented only the latest instance of a systematic effort to isolate Israel and to deny its right to existence.

Founded in 2005 by members of Palestinian civil society, BDS has now become the most important mouthpiece for the economic, cultural and academic boycott of Israel. Adherents of BDS argue that only a complete boycott will compel the Israeli government to end the occupation of Palestinian territories and dismantle the separation wall, as well as to recognise the full rights of Palestinian citizens of Israel and the right of return of Palestinian refugees. When Meltzer claimed that the boycott posed an existential threat, he was primarily referring to the latter demand, as a return of the Palestinians displaced since 1948 would make the Jewish population a minority and thus undermine the principle of Israel as a Jewish state.

Meltzer’s charge, however, obscures the fact that not all advocates of a boycott endorse BDS and all of its demands. What is more, in a 5-4 vote the court failed to distinguish between those activists who boycott the state of Israel in its entirety and those who only target products and institutions from the Israeli settlements on the West Bank. EU directives to label goods from the settlements and to prohibit member states from concluding agreements with Israeli institutions in the Occupied Territories are only two indications of the mounting international pressure against Israel’s illegal settlement activity. In this light, it will become increasingly difficult for Meltzer and other Israeli representatives to denounce a boycott of settlements as an outright assault on Israel’s right to existence.

Most importantly perhaps, this illustrates the extent to which the High Court has taken a highly ideological stance on an emotionally charged debate. The 2015 ruling has transformed the call to boycott from a taboo in Israeli society to an outright tort. As Sawsan Zaher, attorney for the civil rights organisation Adalah, has argued, the law has thus had a “chilling effect” on political speech, even if it has never been used in court. The “boycott law” has provided an opening for individuals to persecute political opponents and has placed NGOs at risk of financial ruin. For that reason, since the promulgation of the law, journalists and NGOs have guarded their endorsement of boycott. Gush Shalom, a prominent group of Israeli peace activists for instance, have even taken down parts of their websites which encouraged the boycott of goods from West Bank settlements.

Yet the controversy about the “boycott law” cannot be reduced to the all too familiar struggles between the Right and the Left in Israel society. It has opened wider debates about the tension between freedom of expression and national security. The legal advisor to the Israeli parliament famously described the bill as “borderline illegal”. Even the Anti-Defamation League, a monitor of antisemitism that is highly critical of BDS, has warned that the law “may unduly impinge on the basic democratic rights of Israelis to freedom of speech and freedom of expression”. Despite these interventions from across the political spectrum, petitioners have been unable to convince the judges and the wider public that the law should be discussed as an issue of free speech, independent from the existential fears many Israelis associate with an economic boycott. In the absence of a written constitution and given the contested role of the High Court in Israeli legislation, this task has proved all the more challenging.

The “boycott law” has curtailed the space for public debate in Israel with immediate effect. While the emotional charge of the call to boycott helps explain why the High Court has upheld the law, it does not justify the sacrifice of free speech in the name of national security. Finally, it is possible that the law, designed to contain a growing boycott movement, will turn out to be counterproductive. In the eyes of some boycott activists, the “boycott law” will only rally international support for their cause because it seems to validate the claim that outside pressure is the only means to resolve the power imbalances in the Arab-Israeli conflict.

Maja Sojref is studying for an MPhil in Modern Middle Eastern Studies at St Cross College, Oxford. She is particularly interested in the Arab-Israeli Conflict and the role of civil society.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

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