Boycotting Israel Isn’t Free Speech

The Eighth Circuit rejects the ACLU’s argument as Unilever overrules Ben & Jerry’s BDS policy and agrees to sell ice cream in the Jewish state.

By Eugene Kontorovich July 5, 2022 6:19 pm ET

Trucks at a Ben & Jerry's ice-cream factory in Israel, July 20, 2021.


Photo: Tsafrir Abayov/Associated Press

June was a terrible month for the anti-Israel boycott, divestment and sanctions movement. On June 22, in Arkansas Times v. Waldrip, the Eighth U.S. Circuit Court of Appeals broadly upheld the constitutionality of anti-BDS laws. A week later Unilever, the multinational parent company of Ben & Jerry’s, overruled the boycott of Israel that the ice-cream company announced a year ago, and it gave the Israel-based licensee permanent ownership of Ben & Jerry’s ice-cream making in Israel and the West Bank. In a jab at the Vermont subsidiary’s leadership, Unilever noted it “repudiates unequivocally any form of discrimination or intolerance.”

Unilever had come under intense pressure over the boycott from consumers and state governments, many of which divested from it in their pension portfolios. As Gov. Ron DeSantis put it: “As a matter of law and principle, the State of Florida does not tolerate discrimination against . . . the Israeli people.” Florida is one of 35 states that enacted laws barring taxpayer money from being used to contract with or invest in companies that boycott Israel. These laws are modeled on existing, and constitutionally uncontroversial, anti discrimination laws that bar states from doing business with firms that boycott gays and other groups. But when the same logic was applied to protect Israelis, progressives denounced the anti-BDS laws as unconstitutional violations of free speech. The American Civil Liberties Union launched a nationwide litigation campaign against the anti-BDS laws, claiming that the First Amendment protects companies’ right to boycott Israel. The Eighth Circuit held that while a company’s explanation of its boycott may be speech, the boycott itself is conduct. The ACLU says it will fight the issue all the way to the Supreme Court, although its legal arguments go against clear Supreme Court precedent. In Rumsfeld v. Fair (2006), the justices unanimously held that a law school’s boycott of military recruiters wasn’t “expressive” conduct because no one would discern a message from the recruiters’ absence without a separate explanation from the law schools. As the Eighth Circuit concluded, that applies perfectly to anti-BDS laws. Similarly, the anti-BDS law “does not ban Arkansas Times from publicly criticizing Israel. It only prohibits economic decisions that discriminate against Israel,” the Eighth Circuit ruled. “Because those commercial decisions are invisible to observers unless explained, they are not inherently expressive and do not implicate the First Amendment.” The idea that anti-BDS laws violate free speech has been embraced by progressives, and by Democratic lawmakers wary of anti-Israel primary challengers, as a way of fighting for BDS while claiming not to support it. Meanwhile, Axios reported last October that Ben & Jerry’s founders were stumped when asked why they were boycotting Israel alone. The company broadly condemns what it views as injustices around the world, including “systemic racism” in America. Axios’s Alexi McCammond asked Ben Cohen and Jerry Greenfield: “You guys are big proponents of voting rights. Why do you still sell ice cream in Georgia? Texas—abortion bans. Why are you still selling there?” “I don’t know,” Mr. Cohen replied. “It’s an interesting question. I don’t know what that would accomplish. We’re working on those issues, of voting rights. . . . I think you ask a really good question. And I think I’d have to sit down and think about it for a bit.” She pressed him on the abortion question and he said: “By that reasoning, we should not sell any ice cream anywhere. I’ve got issues with what’s being done in almost every state and country.” Which leaves the question: Why boycott only Israel? Unilever is the second major company in recent years to walk back an Israel boycott. The first was Airbnb. Human Rights Watch goaded the company to adopt a boycott on West Bank rental listings. States terminated contracts and investment with Airbnb pursuant to anti-BDS laws, and the company agreed to drop the boycott to settle lawsuits brought by Israelis who were harmed by its policy. Efforts to push companies to boycott Israel won’t fade away soon. The primary goal isn’t economic harm, but making it culturally and politically acceptable to shun the Jewish state. What is most important about both the vindication of the state anti-BDS laws and the repudiation of the ice-cream embargo is their underlying message: The moralistic rhetoric of Israel boycotts can’t disguise their bigotry. Mr. Kontorovich is a professor of constitutional law at George Mason University Scalia Law School, and a scholar at the Kohelet Policy Forum, a Jerusalem think tank.

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