Just prior to the end of his three months after retirement – the last occasion on which a justice can sign off on rulings related to cases he adjudicated – former Supreme Court President Asher Grunis added his signature to the ruling on the so-called Anti-Boycott Law. This ruling captures the spirit of his entire term – one of judicial passivism, which leaves a broad area open for interpretation by the legislative body, as well as a fondness for the “immaturity” rationale, used in order to dismiss the court’s intervention in cases in which a new bill has not yet been implemented.
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The ruling Grunis supported on Wednesday was written by Justice Hanan Melcer, who was joined by the court’s President Miriam Naor, as well as justices Elyakim Rubinstein and Isaac Amit. Thus, a slim 5-4 majority approved the contested part of the law, which states that a public call for boycotting Israel constitutes a civil wrong (or tort) liable to be sued for damages.
“Boycotting Israel” is defined here as a “purposeful avoidance of economic, cultural or academic ties with a person or other entity due solely to their affinity to Israel, one of its institutions or an area under its control, in a manner that would cause financial, cultural or academic harm.”
The justices noted that the law infringes on freedom of speech, but this could be justified since the infringement was proportional and directed at a worthy cause.
However, all the justices concurred that the clause allowing the person calling for a boycott to be forced to pay compensation, even in the absence of proven damage to anyone, was unconstitutional and should be struck down. Justice Melcer emphasized that only a person who could prove being directly affected by a call for a boycott could sue for damages – and that in order to succeed in such a suit, that person would need to prove a causal relationship between the call for a boycott and harm incurred by that call.
This limits the ability to employ this law, since it will not be possible to use it for blanket litigation against people calling for boycotts. Despite this, as pointed out by the minority justices, the grave issue of freedom of speech and the chilling effects of the law are not resolved. Ironically, this ruling creates a situation in which anyone calling for a boycott should hope that his call fails – since only its success can lead to him being sued.
Despite the final result, the ruling will be remembered as the first in which the High Court struck down a law’s clause due to an infringement of free speech: Refusing to endorse a clause that allows for compensation without proof of damage anchors the approach that freedom of speech derives from the right to human dignity, which is protected by Israel’s Basic Law on Human Dignity and Freedom, even though freedom of speech is not specifically mentioned in the Basic Law.
This is hardly a source of comfort or consolation. This is a ruling determining that anyone calling for a boycott can end up being sued. It should be emphasized that the majority of justices made no distinction between the part of the law dealing with calls for boycotting Israel and the part dealing with calls for boycotting areas under Israel’s control. This means that calls for boycotting produce from the West Bank settlements or for boycotting the cultural center in Ariel can lead to a person being sued if this leads to financial damage. This imposes problematic limitations on political freedom of speech.
Justice Melcer writes in his ruling that calls for a boycott or participation in such actions could sometimes constitute acts of “political terror,” ignoring the historic role boycotts played repeatedly as nonviolent means of resistance. Was the boycott of South Africa during the apartheid years “political terror” or a nonviolent form of protest?
One can also criticize the broad comparison made by the justices between the boycott law and laws against discrimination, stating that the new law in fact implements the laws forbidding discrimination. However, the existence of these antidiscrimination laws shows that the boycott law is superfluous. There are already laws in place that proscribe discrimination in many areas, such as employment or supply of goods and services, and these laws could be expanded. These are the laws that should combat wrongful discrimination, such as refusal to hire someone based on their nationality or political opinions.
Calls for a boycott can be annoying and objectionable, but the High Court – even though it restricted the law – has failed to protect freedom of expression in areas where it is particularly important, such as when dealing with unpopular opinions that annoy many people. Consequently, it gave legitimacy to legislation that is part of a wave of proposed antidemocratic bills, designed to “kill the messenger” rather than dealing with the content of the relevant criticism.
The ruling can perhaps be best summarized by the words of Justice Rubinstein, who quoted from the Passover Haggadah, which states: “In every generation, they rise against us to annihilate us. However, the Holy One, blessed be He, saves us from their hand.” Rubinstein added, “There is nothing wrong in anchoring laws passed by the Knesset in the struggle against those who wish to annihilate us.” This is a viewpoint that perceives the BDS (boycott, divestment, sanctions) Movement as a threat to Israel’s existence – a view that sees Israel as a perpetual victim, and only a victim. In light of this perception, the High Court legitimized a bill that harms our democracy.