The Limited Reach of the Olympia Food Co-op Case
Thursday, April 17, 2014
Earlier this month, the Washington State Court of Appeals affirmed the dismissal of a lawsuit, Davis v. Cox, filed by five members of the Olympia Food Co-op against current and former members of the Co-op's Board of Directors for instituting a boycott of Israeli products. Moreover, the court upheld the prior decision that the suit was a Strategic Lawsuit Against Public Participation (SLAPP) that targeted protected First Amendment conduct, namely participation in a boycott.
The Co-op's boycott is part of the Boycott, Divestment, and Sanctions (BDS) movement, a discriminatory campaign that targets Israeli civilians and entities in attempt to influence policies of the Israeli government. Though proponents claim the movement is aimed at protecting Palestinian rights, numerous critics have opined that anti-Israel and anti-Semitic sentiments are the true motivators. Even Noam Chomsky, an outspoken supporter of BDS, has reflected that the movement's tactic of singling out Israel "could be attacked . . . as pure anti-Semitism."
Not surprisingly, advocates of the boycott have incorrectly extrapolated the Davis holding and its implications, mischaracterizing it as standing for the general proposition that lawsuits filed in response to boycott activity are invalid and doomed to dismissal. Such an interpretation, however, ignores the specific key facts on which the appellate court decided the case.
Ultimately, the court's decision in Davis turned on whether or not the board violated mandatory Co-op rules, specifically its Boycott Policy (Policy), in deciding to boycott. The court held that, although the board's adoption of the boycott at issue failed to comply with the Policy (requiring staff consensus to boycott, which was not reached), such compliance was not required by the Co-op's articles of incorporation or bylaws in light of the board's "general authority to manage the Co-op."
The holding is indeed troubling, as it effectively means that board members are free to violate the very rules they themselves set, unless organizing corporate documents concretely stipulate otherwise. However, even if other courts follow this seemingly counter-intuitive rationale (according to which established corporate policies are treated merely as suggestions that can be disregarded at will), the takeaway is not that any and all actions in furtherance of the Israel boycott movement's discriminatory goals are above the law. Had the Co-op's founding documents stated that board policies were mandatory, Davis would seemingly have been decided in the opposite direction. And, as The Lawfare Project has previously discussed, boycotts based on Israeli national origin likely violate the anti-discrimination statutes of states such as New York and California. For instance, in 2012, The Lawfare Project was asked to brief the Brooklyn-based Park Slope Food Co-op on a prospective boycott of Israeli goods and advised that such a boycott might run afoul of New York State anti-discrimination law. The co-op subsequently voted against boycotting.
Indeed, there exist legitimate situations where the judicial system should and must be used to prevent unlawful discriminatory business conduct, and the federal government should also expand protections against discrimination based on national origin. Still, even in states that lack potent anti-discrimination legislation, jumping from the Davis outcome to the conclusion that any and all cases filed to counter discriminatory boycott activity are frivolous, intended to harass, or likely to lose indicates a lack of understanding of the Washington appellate court's ruling.
FOR IMMEDIATE RELEASE: Lawfare Project cited in complaint challenging ASA's tax-exempt status
Wednesday, January 08, 2014
Lawyers challenge tax-exempt status of American Studies Association (ASA) in response to discriminatory academic boycott, cite The Lawfare Project in whistleblower complaint
In response to last month's vote by the American Studies Association (ASA) to endorse a boycott of Israeli academic institutions, several lawyers led by William A. Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic at Cornell University Law School, have filed with the Internal Revenue Service a whistleblower complaint
challenging the ASA's 501(c)(3) tax-exempt status. The complaint asserts that the academic boycott is not in furtherance of the ASA's exempt purpose and violates public policy.
According to Legal Insurrection
, a blog authored by Jacobson, "The reaction to the ASA's boycott has been overwhelmingly negative. At least 125 universities and leading academic institutions have spoken out against the boycott and issued strong statements as to the damage to higher education such boycotts inflict."
In March 2013, Breitbart
published a groundbreaking article
by The Lawfare Project on the applicability of New York State anti-discrimination law in the context of discriminatory Boycott, Divestment, and Sanctions (BDS) activity targeting Israeli persons and entities.
The Lawfare Project was asked to provide research on state law
demonstrating the widespread public policy against discrimination on the basis of national origin and religion. The LP's research is cited on pages 33 and 34 of the complaint. In addition to potentially violating various state anti-discrimination laws, academic and economic boycotts of Israel, as well as other activities of the Boycott, Divestment, and Sanctions (BDS) movement, are part and parcel of a lawfare campaign to mischaracterize Israel as an "apartheid" state that violates Palestinian human rights. However, the disproportionate focus on Israel and failure of BDS proponents to acknowledge the grave human rights violations perpetrated against Palestinians by their own governments, and by nations such as Jordan, Lebanon, and Syria, betray the anti-Israel and anti-Semitic ideals that fuel the movement.
The introduction to the complaint
explains why the ASA is no longer entitled to tax-exempt status:
ASA's academic boycott is not consistent with its educational exempt purpose. ASA's academic boycott is anti-educational, seeking to sever the free exchange of ideas and interactions among scholars and institutions so critical to higher education. ASA's academic boycott is deemed such a threat to academic freedom and the educational process that major non-partisan organizations representing virtually every higher educational institution and almost 50,000 university professors have denounced the academic boycott. Over 100 individual university presidents have done the same, and the number is growing.
These denunciations have been without regard to where one stands on the Middle East dispute, and are grounded in the threat academic boycotts present to education, not Middle East politics. ASA's exempt purpose would be violated even if ASA took the other side of the political issue, and boycotted Arab universities and scholars.
. . .
This particular ASA academic boycott is even worse, because in addition to being anti-educational, it is based explicitly on national origin in violation of the public policy against such discrimination. In addition, the international boycott of which ASA now is a part traces its roots directly to the anti-Semitic Durban NGO conference in 2001 and the anti-Jewish sentiment of the Palestinian boycott movement.
In examining whether the ASA boycott is a proper exempt purpose, the Service cannot ignore the anti-Semitic context and roots of the boycott movement ASA has joined.
The ASA academic boycott also violates clear U.S. public policy, expressed in federal and state laws, against international boycotts singling out Israel.
We suggest that under relevant statutory, regulatory and case law authority, revocation is required.
Netanyahu plays LP film on UNRWA incitement for Kerry
Friday, November 22, 2013
Israeli Prime Minister Benjamin Netanyahu plays footage from film, co-produced by The Lawfare Project, for U.S Secretary of State John Kerry depicting UNRWA's illegal indoctrination of Palestinian children
As reported by The Algemeiner and Israel's Walla News, Israeli Prime Minister Benjamin Netanyahu recently played footage for U.S. Secretary of State John Kerry from the short film Camp Jihad, co-produced by The Lawfare Project and the Center for Near East Policy Research.
The footage shows a teacher at an UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East) school indoctrinating students on "martyrdom" and "echoing the claim that all of Israel belongs to the Arabs." It was reportedly presented to Secretary Kerry during his November 2013 shuttle diplomacy trip to the Middle East.
The Lawfare Project's report on the troubling activities taking place at UNRWA's summer camp and schools, as well as potential legal implications of the United States' continued unbridled funding of UNRWA, can be read HERE:
FOR IMMEDIATE RELEASE: URGENT For lawyers & Legal Experts: Call Upon EU To Revoke Boycott Of Israel!
Friday, July 19, 2013
The Lawfare Project urges all lawyers and legal experts to sign onto the following letter, which calls upon the EU to revoke its recent directive regarding Israeli settlements.
Composed by Ambassador Alan Baker, head of the International Division of the Legal Forum for Israel, the letter will be sent to Catherine Ashton, foreign affairs head of the EU, as well as to the foreign ministers of the 28 members of the EU.
For this letter to have maximal effect, it is vitally important to attach as many signatories as possible.
Please do not reply to this email.
In order to ensure that your signature is attached to the letter, please send your response to
with your name, title, and contact information. If possible, please also forward the letter to colleagues and acquaintances and encourage them to sign.
The letter will be sent in the coming days in view of the urgency of the issue.
[Letter begins below]
H.E. Catherine Ashton, EU High Representative for Foreign Affairs
Re: EU directive regarding Israeli settlements
We, the undersigned, attorneys from across the world who are involved in international law issues as well as being closely concerned with the Israeli-Palestinian dispute, respectfully call upon you and the EU to revoke the abovementioned directive which we feel is based on legally flawed and incorrect assumptions regarding both the legality of Israel's settlements and the status of the pre-1967 Armistice lines as Israel's border.
Furthermore, the reasoning behind the directive summarily ignores the historic and legal rights of Israel and the Jewish people in and to the areas of Judea and Samaria, including the internationally acknowledged rights of the Jewish people as the indigenous people of the area.
- The long-held view of the EU as to the illegality of Israel's settlements is a misreading of the relevant provisions of international law, and specifically Article 49 of the Fourth Geneva Convention, which is neither relevant to the unique circumstances of Israel's status in the area, nor was it ever applicable, or intended to apply to Israel's circumstances in Judea and Samaria.
- The EU together with other international bodies has consistently ignored authoritative sources, including the 1958 official commentary by International Committee of the Red Cross, as well as the published opinions of prominent international jurists, all of which explain the provenance of Article 49 in the need to address deportations, forced migration, evacuation, displacement, and expulsion of over 40 million people by the Nazis during the Second World War. This has no relevance to Israel's settlements in Judea and Samaria.
- The EU totally ignores the very agreement to which it is signatory as witness, the 1995 Israeli-Palestinian Interim Agreement, in which it was agreed by the parties, pending a permanent status agreement, to exercise powers and authority in the areas under their respective control. Such powers include planning, zoning and construction. The issues of settlements and Jerusalem, as agreed upon between the parties, are negotiating issues, and hence, determinations by the EU undermine the negotiating process and run against the EU's status as signatory.
- The legality of Israel's presence in the area stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, as granted in valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question. This includes the 1922 San Remo Declaration unanimously adopted by the League of Nations, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel (including the areas of Judea and Samaria and Jerusalem) as well as close Jewish settlement throughout. This was subsequently affirmed internationally in the League of Nations Mandate Instrument, and accorded continued validity, up to the present day, by Article 80 of the UN Charter which reaffirmed the validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations).
- The inference regarding Israel's borders as recognized by the EU is no less misguided and historically and legally wrong. The pre-1967 Armistice lines (so-called "green" line) were never considered to be borders. UN Security Council resolution 242 (1967), endorsed by the European members of the Council, called for "secure and recognized boundaries" to replace the pre-1967 Armistice lines. The European leaders further endorsed this principle in their 1980 Venice Declaration. By its persistence in referring to the pre-1967 lines, the EU is undermining future negotiation on this issue by predetermining its outcome.
- In a similar vein, the repeated use by the EU of the term "occupied Arab" or "Palestinian territories" to refer to the area of Judea and Samaria, has no basis in law or fact. The area has never been determined as such, and thus the continued EU usage of the term runs against the very concept of negotiations to resolve the dispute regarding these areas, supported by the EU, to determine their permanent status.
The position taken by the EU and the action presently being taken pursuant to its directive, regarding Israel's settlements in Judea and Samaria, is, in our view, incompatible with the EU's standing as a member of the international Quartet, and serves to neutralize any pretentions it might have to serve a useful function in the negotiating process between Israel and the Palestinians.
Frankly, the EU cannot, in all sincerity, presume to come with clean hands and claim to be an impartial element in the negotiating process. The EU has taken sides and as such, in its actions against Israel, it is undermining the negotiating process.
The position and actions of the EU against Israel are all the more unfortunate and regrettable in light of the tragic Jewish history in Europe, which cannot be ignored or forgotten. One might have expected that realization of this factor would guide the wisdom and logic of the actions of the EU.
Signed by jurists and international lawyers