June 22, 2022
CMEIL Scores Win in the 8th Circuit Upholding Arkansas Anti-BDS Statute
In a huge victory in the fight against boycotts of Israeli companies and people, the first full federal court of appeals ruling on state anti-BDS laws vigorously and broadly upheld their constitutionality. Arkansas’ state anti-BDS statute prohibits state contractors from waging economic warfare on Israel by engaging in an economic boycott of the Jewish State. The Eighth Circuit held that the statute “does not violate the First Amendment” because it does not infringe on the free speech of such contractors.
CMEIL Director Eugene Kontorovich, along with ten other constitutional law scholars, including David Bernstein, Richard Epstein, Julian Ku, Alex Tsesis, Maimon Schwarzchild, Tonja Jacobi, Jesse Fried, Jeremy Rabkin, Steven Davidoff Solomon, and Louise Weinberg, penned an amicus brief in support of the Arkansas statute.
In recent years, roughly 35 states have passed laws restricting government contracting or investment in companies that discriminate against people because of their connection to Israel or territories under Israel’s control (what is known as “BDS”). However, progressive groups like the ACLU have fought these anti-discrimination measures, claiming such measures are unconstitutional.
Today, however, those claims were roundly rejected in a 9-1 vote of the court, the first full appellate decision on the issue. The Court ruled that the laws regulate only business activity, not expressive conduct and thus, raise no issues under the First Amendment. It is high time such laws that intrude on constitutional rights be retired, so that states should not have to give taxpayer dollars to companies engaged in bigotry.
“Progressive groups have used bogus constitutional arguments as pretexts to protect the discriminatory treatment of primarily Jewish groups. Embarrassed to publicly defend BDS itself, they have claimed to oppose such laws out of legal scruple. Today that pretext has been removed, and Congress can move forward with confidence to pass federal anti-BDS legislation,” said CMEIL Director Eugene Kontorovich, who has helped draft many of the laws and participated in the recent the litigation in 8th Circuit.
June 16, 2022
CMEIL Files Path-Breaking Complaint Challenging Legality of ‘Made in Palestine’ Product Labels
Last Thursday, June 9, 2022, CMEIL Director Eugene Kontorovich, alongside Brooke Goldstein of The Lawfare Project and with the assistance of the Toronto-based law firm RE-LAW LLP, filed a formal complaint with the Canadian Food Inspection Agency (CFIA) challenging “Made in Palestine” labels currently appearing on certain olive oil brands throughout Canada. Canada’s National Post, breaking the story this morning, offers an extensive overview of the impending litigation here.
Kontorovich and Goldstein allege that the labeling runs afoul of Canadian labeling laws, since such laws require the label’s place of origin to be recognized as a state under Canadian law and Canada does not recognize Palestine as a state. Indeed, in a formal submission to the International Criminal Court (ICC) in 2020, the Canadian government emphasized, “Canada’s long-standing position that it does not recognize a Palestinian state.”
This question is not novel, but rather recently emerged in May 2022, when the CFIA ruled that wines made by the Israeli winery Psagot could continue to carry the label “Made in Israel,” despite the fact that the Canadian government does not recognize Israeli sovereignty in Judea and Samaria or the “West Bank.” The Canadian government does, however, recognize Israel as both a state and as the administering power in the region in which Psagot produces its wine. Therefore, the label, if accompanied by clarifying or additional information, was deemed lawful.
Here, there is no possibility that clarifying information can rectify this situation, since Palestinian-controlled areas of the West Bank, though administered by the Palestinian Authority, are not administered by an actual state. As CMEIL Director Eugene Kontorovich stated, “The CFIA has said Israeli wines from the area can be labelled ‘Made in Israel’ with additional clarifying information—but nothing can keep a ‘Made in Palestine’ label from being misleading because there simply is no such country, as the Canadian government has repeatedly affirmed. If CFIA truly cares about accurate labelling, and not merely anti-Israel activism, it must immediately remove the labels from these olive oils.”
Lawfare Project Attorney Brooke Goldstein reiterated the importance of consistency in the application of Canadian labeling laws. “In a democracy, the law applies equally. Product labeling rules cannot be applied differently with respect to Jewish-made products versus Arab-made products. The Canadian Food Inspection Agency has made clear that Canadian regulations require labels to be accurate. Canada does not recognize any country called ‘Palestine,’ so labeling products as ‘Made in Palestine’ is grossly inaccurate.”
David Elmaleh, a partner from RE-LAW LLP, echoed similar sentiments. “These ‘Made in Palestine’ labels falsely imply that Palestine is a recognized country, which it is not. We say that the labels are false, and our client is simply insisting that the Canadian Food Inspection Agency investigate and affirm this undeniable fact.”
The entire complaint may be found here.
Arlington, VA 22201
April 25, 2022
Dershowitz, Epstein, and 16 Other Leading Constitutional & Business Law Professors Team Up for Legal Brief in Support of Texas Anti-BDS Law
Eighteen leading constitutional and business law professors have teamed up to submit an unprecedented brief in support of Texas’ anti-BDS law, currently being reviewed by the U.S. Court of Appeals for the Fifth Circuit. As some of the nation’s most celebrated legal scholars, these professors hail from across the ideological spectrum, demonstrating the broad consensus on the legality of anti-BDS laws.
Thirty-five states have passed “anti-BDS laws” in the past eight years. Prof. Kontorovich, Director of the Center for the Middle East and International Law (CMEIL) at George Mason University’s Antonin Scalia Law School, is widely regarded as the “intellectual architect” of such laws. These laws recognize that refusing to do business with people just because of their connection to the Jewish State, rather than because of their individual conduct, can be a form of anti-Semitism. When done by state contractors, it robs state residents of the benefit of having what might be the most cost-effective and innovative products and services employed by those who work on their behalf – and the amici note this case is a good example of that. None of these laws ban such boycotts – they just prevent them from being subsidized with tax-payer dollars.
Among the law professors on the brief are Professor Alan Dershowitz, formerly of Harvard Law School; Richard Epstein of New York University School of Law; and Eugene Kontorovich of George Mason University’s Antonin Scalia Law School. Jerome Marcus, one of counsel for the amici curiae, is a Fellow at CMEIL. This is the also the largest number of scholars to submit an amicus brief on either side of the anti-BDS litigation that has played out in courts across the country over the past several years.
The brief, filed on Thursday, powerfully argues that refusing to do business with companies or people because of their connection to Israel is commercial conduct that the state can regulate. Supporters of the “Boycott Divest Sanction” movement against Israel argue that anti-BDS laws, such as the one in Texas, violate the First Amendment. These amici professors point out that the Texas law deals with what state contractors do, not what they choose to say, and thus, those actions do not enjoy Free Speech protection.
As stated in the brief, “Despite a litigation onslaught by national groups such as CAIR and the ACLU, anti-BDS laws remain good law in every state that has passed them. As the impressive list of scholars who have joined our brief shows – and the trial court recognized – these laws do nothing more than what the Supreme Court has clearly and unanimously permitted.”
The brief also captures the dangers in finding the Texas statute unconstitutional. Were the Fifth Circuit to hold the law in violation of the First Amendment, a large number of federal and state laws that bar private businesses from discriminating against other persons and businesses on the basis of race, gender, national origin, sexual identity, sexual preference, and familial status might be in jeopardy. A discriminating business could simply claim its discriminatory economic activity is part of an ideological boycott, as the plaintiff has done here. Moreover, foreign sanctions laws, like those against Russia and Iran, would be called into question: if refusing to do business is protected speech, then choosing to do business with a particular country to show political support would also be protected.
“Arguments that anti-BDS laws violate the Constitution threaten to put Jews outside the protection of anti-discrimination principles,” Prof. Kontorovich said.
Arlington, VA 22201