Tuesday, August 20, 2019


The House of Representatives recently voted 398-17 to reject the global Boycott, Divestment, and Sanctions effort against Israel. Against this lopsided vote, Congresswoman Ilhan Omar offered a resolution defending BDS as an exercise of free speech by Americans. We strongly support free speech, but BDS supporters often use free speech talk to try to dodge accountability for their misbehavior.  

Case in point: The American Studies Association’s Israel boycott. In 2013, the ASA’s leadership, known as the National Council, endorsed a resolution to cut ties with Israeli universities. The proposal was put to member vote. Turnout was low; only 20 percent voted in support. But the National Council declared victory anyway and, ever since, claims the resolution was adopted.

The boycott flies in the face of important academic principles, such as freedom and neutrality. It was immediately criticized by the distinguished 62-member Association of American Universities. And its exclusive focus on the Jewish state smacks of anti-Semitism. The ASA has never boycotted any other country, either before or since.

Four distinguished ASA members subsequently sued, claiming the small turnout invalidated the vote’s result under the ASA’s bylaws and corporate law. The members also claimed the boycott violated laws barring the nonprofit from acting outside its chartered purpose to “promote the development and dissemination of interdisciplinary research on U.S. culture and history in a global context.”

After litigation commenced, plaintiffs’ lawyers found disturbing evidence that BDS activists had schemed to take over ASA and plunder its resources to push BDS

Unearthed emails suggest that BDS activists used their ASA positions to stack the National Council with stealth BDS supporters. In elections for ASA offices, most BDS supporters decided to hide their BDS plans because the feared turning off members. Only one BDS backer revealed his intention to support an Israel boycott. He lost. The others, who hid their intentions, won.

After BDS supporters took control of ASA’s National Council, they pushed for the anti-Israel boycott. Plaintiffs allege the defendants manipulated the ratification vote, refusing to give opponents equal time to make their case, rushing to recruit pro-BDS graduate students into the ASA, and then freezing membership rolls to block opponents of the resolution. They also failed to disclose that adopting the resolution would damage the ASA itself, in terms of members, reputation, and finances — a fact that defendants apparently knew, and discussed, before bringing the resolution to a member vote.

In fact, damage was extensive. To pay for resolution-related expenses and to offset revenue shortfalls resulting from reputational fallout, defendants appear to have improperly invaded the ASA’s trust fund and removed at least $300,000.  Since putting their hands in the cookie jar, the leadership has failed to produce annual accountings as required by ASA bylaws.  After this evidence surfaced, plaintiffs added various claims against defendants. 

For several years, individual defendants have worked hard to deflect liability, using the ASA’s own resources to defend themselves in District of Columbia courts. Now defendants are playing the free speech card in an effort to get the case dismissed. This spring, defendants filed a special motion to dismiss all of plaintiffs’ claims under the D.C. Anti-SLAPP (Strategic Litigation Against Public Participation) Act, a law designed to protect public advocacy from harassing lawsuits. The Act can be used to knock out legal claims arising from an “an act in furtherance of the right of advocacy on issues of public interest.” Typically, Anti-SLAPP statutes are used by individual whistleblowers against large organizations seeking to silence them through litigation.

By contrast, anti-SLAPP provisions are being wielded here by insiders of a large nonprofit against individual members seeking to hold these insiders to account for deception and misappropriation. Defendants claim that the ASA’s cutting off ties with Israel is “advocacy,” and any steps taken to achieve the ASA’s boycott–even those that involve deception, looting, and other breach of duties under corporate law–were “act[s] in furtherance of the right of advocacy.” In other words, the motive for the alleged wrongdoing — expressing hatred of Israel — is being served up as a defense. Defendants appear willing to concede plaintiffs’ point that the ASA is acting outside its chartered purpose by engaging in advocacy, not “educational and academic” pursuits.

The D.C. Superior Court will now decide whether to grant defendants’ Anti-SLAPP motion and dismiss the case. The Court should reject the BDS supporters’ effort to use free speech as a shield, and recognize their alleged behavior for exactly what it is: the takeover and manipulation of a non-profit corporation to advance their pet political agenda at members’ expense. Free speech is important, but it should not be used as an excuse for hijacking and plundering an academic association. 

• Jesse Fried is a professor at Harvard Law School. Steven Davidoff Solomon is a professor at Berkeley Law. Both authors advised plaintiffs’ counsel in the lawsuit against the American Studies Association.

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