If you ask someone on the street "What does 'hasbara' mean?", they will stare at you blankly.
That's because, contrary to what the internet might have you believe, random people on the street do not know the ends and outs of rhetorical tropes involving Israel or Israeli society.
But if you ask someone somewhat more engaged "What does 'hasbara' mean?", they'll probably give an answer that is something like "propaganda". Hasbara is Israeli propaganda.
Of course, that's not actually accurate. The Hebrew word "Hasbara" translates to "explanation", not propaganda. Now to be sure, it's a particular type of explanation -- a justificatory explanation. Explaining to someone the physical processes by which the moon revolves around the Earth is not hasbara. Explaining to your skeptical spouse why your cable bill is so much higher this month (you bought a big boxing pay-per-view), that would be hasbara.
But right from the get go, this mistranslation should alarm us. There's something very revealing, after all, about a world where Jewish "explanations" are literally heard as "propaganda". All this time we've talking about antisemitic tropes where Jews deceive, manipulate, or hypnotize the world -- and "hasbara" fits right into that.
When people talk about how this argument is "hasbara" or how back in the day they had been subjected to a ton of "hasbara", they're saying more than that they disagree with an argument or that their views have evolved. They're saying that the argument was dishonest or manipulative, that they've learned to recognize the string-pulling. Even when it's Jews doing it, the rhetorical power of dismissing something as hasbara stems almost entirely from antisemitic roots: these Jews are the bad Jews, the manipulators and spin-doctors; I'm an honest Jew who not only sees through the lies, but recognizes the Jewish pattern when I see it.
Ultimately, the way "hasbara" is used is almost always an effort to degrade Jewish claim-making. It relies on tropes of Jewish manipulation and insincerity; it literally collapses, in the Jewish case, the distinction between explanation and propaganda.
For those reasons, I don't really use "hasbara" much myself (at least not unironically), even when speaking of right-wing arguments defending various Israeli actions that I find utterly ridiculous. I've made an effort (not wholly successful) to remove it from my vocabulary. And so if you go through my archives, I mostly use it either (a) ironically, to refer to people dismissing Jews as "hasbara shills" or (b) in literal reference to Hasbara Fellows on campus.
The existence of Hasbara Fellows offers up a new dimension on this discussion. Most obviously, Israel is not the Empire from Star Wars; it does not give its own actors self-consciously evil names like "Death Star" or "Avarice". So the fact that it uses the term "Hasbara Fellow" is a pretty strong hint that the word itself does not have an intrinsically malicious meaning. It'd be like sending off "Deception Fellows" to campus -- who would do that?
On the other side, promoters of calling out "hasbara" might contend that they are referring to something specific -- official Israeli governmental efforts to cast Israel in a good light and foment positive dispositions towards the country. That's hasbara (and that's, literally, what Hasbara Fellows are for). So it can't be wrong to call it by its name.
One problem with this is that the term hasbara is not limited in application only to Israeli government speakers. Pretty much any Jew who speaks in a remotely apologetic tone for Israel -- no matter their capacity or connection to Israeli governmental actors -- can and will be accused of engaging in hasbara at one point or another. If anything, the government linkage serves more to expand the scope than to limit it: Jews who sound "hasbara-ish" will typically be accused of being outright Israeli governmental agents -- because who else would spout hasbara other than someone on the Israeli payroll?
But the larger problem is that we already have a term for states seeking to present themselves in a good light and make people feel positively towards the country: public diplomacy. Now, to be sure, public diplomacy is motivated -- the "explanations" it will give regarding questionable state conduct are in service of a diplomatic end; they aren't the pure dispassionate appraisal one might get from a wholly disinterested scholar. Obviously, anyone who is listening to acts of public diplomacy should listen with a critical ear.
But there's nothing wrong with public diplomacy per se, it's an unremarkable fact of everyday statecraft. And so the real function of "hasbara", as its used in public discourse, is to take something normal and mundane and delegitimate it by slapping a scary-sounding foreign word onto it.
Public diplomacy is a fact of life, you handle it by not shutting down your critical facilities. Hasbara is something undefineably more nefarious -- we don't know exactly what it is (the fact that the average person probably has no idea what the words means helps, rather than hurts), but it sure sounds scary. Any country can engage in public diplomacy (hell, any country can engage in propaganda), but only Israel can do hasbara. It's another way of exceptionalizing Israel and suggesting that nothing it does can be analyzed through "normal" processes -- we need new and special words, new and special concepts, new and special standards to accurately assess anything it does. And, I'd suggest, it's implicitly orientalist as well. It is the foreignness, the mysterious impenetrability of the word hasbara, that gives it such power.
Is it fair to say that there are arguments made by Israeli government defenders which strike me as ludicrous, bad-faith, or just impossible to take seriously? Of course -- I can think of a half-dozen examples instantaneously. And so I can understand the desire to have a pithy word which just puts those arguments in their place. "Hasbara" can fill that niche nicely.
But really, what we do get by keeping "hasbara" in our vocabulary that we wouldn't otherwise have? When Rep. Ilhan Omar apologized for her "hypnotize" tweet -- and I give her credit for that -- it was striking to see how many people rushed in to condemn her for the apology. They were insistent that Israel really does "hypnotize" the world, that hypnosis is the best way to describe how it is that Israel ever persuades anyone of anything. In effect, they really do believe that all Jewish "explanations" for Israel are naught but propaganda.
In this way, the main utility of "hasbara", as a term, isn't to enable us to call out bad-faith arguments when they appear. The main function is to suggest that the entire sweep of the discourse is bad-faith, manipulative or hypnotic. It's not that this argument is a bad argument; the entire discursive sphere about Israel (or more specifically, the Jewish and non-explicitly anti-Zionist contribution to it) is defined by manipulation and deceit. Hasbara, we might say, is a structure, not an event -- it's not a discrete set of bad arguments we reject as failing the smell test, it's the entire state of the world where Jews endeavor to bend reality into unreality.
That sort of outlook just can't be sustained -- at least, not in a way that is compatible with the fair inclusion of Jewish voices in deliberative arenas. The fact is that there are certain words and terms which have genuine usefulness but which do far more damage than good, and whose use is consequently not justified. For me, "self-hating Jew" is one such term -- I understand the desire to put down Jews whose public persona seems entirely dedicated to slamming other Jews, but the degrading, marginalizing character of "self-hating Jews" is just too harmful to justify its usage -- and so I don't use the term.
The more I think about it, the more I think "hasbara" falls into the same boat. And so I think it's time that it gets retired as well.
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Saturday, January 26, 2019
Friday, January 25, 2019
What's the Difference Between Impeachment and Faithless Electors?
One of the first plot points on the TV series The Americans occurs in the aftermath of the attempted assassination of President Reagan, and Secretary of State Alexander Haig's famous declaration "I am in control here" while the President was in the hospital.
Among Americans, this statement was roundly mocked as Haig being overzealous and ill-informed. But -- while there certainly was anxiety around the assassination attempt regarding who was behind it, whether it was a military move, etc. -- there wasn't really any concern among the American public that Haig was actually launching a coup.
But (in the show, at least) the Russians don't know that. From their vantage point, a top government official had just seized on the chaos of the assassination attempt to declare himself head of state. Without a sort of deep enmeshment in American law, culture, and society, it could be hard to tell -- from afar -- why Haig's statement wouldn't be seen as really worrisome, and what distinguished it from a "real" coup attempt.
I was thinking about this with respect to two ways the ticket that wins the presidential election (as understood in the conventional sense) could nonetheless be blocked or removed from office. One way is, immediately after election day but before he is inaugurated, "faithless electors" deciding en masse to vote for someone else. So even though Trump and Pence won most electoral votes, they could just decide to vote for Nancy Pelosi and some other Vice President. The other way is, after the President Vice President are inaugurated and seated, Congress impeaches and removes them.
To any American observer, though, these are two very different things. Congress impeaching and convicting Donald Trump would be controversial, no doubt, and high profile. But it is still basically recognized as a valid "move"; it isn't an illicit seizure of power. By contrast, the faithless elector route would not be seen that way. It'd be seen as, more or less, a coup.
But why? Both are formally legal. Article II, Section 4 of the Constitution allows for the President and Vice President's removal by impeachment (and, under the law, the next person in the Line of Succession is the Speaker of the House). And under the 12th Amendment Electors have the authority to vote for whomever they like for President (I leave aside the issue of "faithless elector" statutes and their applicability -- we can assume that all the faithless electors come from states which do not prohibit such acts).
And it's not a matter of some established tradition either. Sure, we've never had a case where faithless electors have altered the victor of an election. But we've also never impeached and removed a President (two Presidents -- Johnson and Clinton -- were impeached but not removed; Nixon resigned before he could be impeached).
So suppose Congress does impeach Trump and Pence. Your friend from abroad hears the news and worries -- has Nancy Pelosi just announced a coup? How do you explain that that isn't really an accurate description of what happened, in a way that distinguishes the "faithless elector" case?
(As you might imagine, what's really prompted this line of thinking is the "legal" arguments for Juan Guaido claiming the presidency in Venezuela. Even assuming he's obeying the letter of the law -- is this more like an impeachment, or more like a faithless elector? Of course, I think the actual answer is that the "legitimate" legal structures in Venezuela have decayed so severely that trying to think in terms of legitimated legal pathways is just a misfire completely -- we're talking about a country where the Supreme Court, stacked with Maduro loyalists, just outright dissolved the national assembly, after all)
Among Americans, this statement was roundly mocked as Haig being overzealous and ill-informed. But -- while there certainly was anxiety around the assassination attempt regarding who was behind it, whether it was a military move, etc. -- there wasn't really any concern among the American public that Haig was actually launching a coup.
But (in the show, at least) the Russians don't know that. From their vantage point, a top government official had just seized on the chaos of the assassination attempt to declare himself head of state. Without a sort of deep enmeshment in American law, culture, and society, it could be hard to tell -- from afar -- why Haig's statement wouldn't be seen as really worrisome, and what distinguished it from a "real" coup attempt.
I was thinking about this with respect to two ways the ticket that wins the presidential election (as understood in the conventional sense) could nonetheless be blocked or removed from office. One way is, immediately after election day but before he is inaugurated, "faithless electors" deciding en masse to vote for someone else. So even though Trump and Pence won most electoral votes, they could just decide to vote for Nancy Pelosi and some other Vice President. The other way is, after the President Vice President are inaugurated and seated, Congress impeaches and removes them.
To any American observer, though, these are two very different things. Congress impeaching and convicting Donald Trump would be controversial, no doubt, and high profile. But it is still basically recognized as a valid "move"; it isn't an illicit seizure of power. By contrast, the faithless elector route would not be seen that way. It'd be seen as, more or less, a coup.
But why? Both are formally legal. Article II, Section 4 of the Constitution allows for the President and Vice President's removal by impeachment (and, under the law, the next person in the Line of Succession is the Speaker of the House). And under the 12th Amendment Electors have the authority to vote for whomever they like for President (I leave aside the issue of "faithless elector" statutes and their applicability -- we can assume that all the faithless electors come from states which do not prohibit such acts).
And it's not a matter of some established tradition either. Sure, we've never had a case where faithless electors have altered the victor of an election. But we've also never impeached and removed a President (two Presidents -- Johnson and Clinton -- were impeached but not removed; Nixon resigned before he could be impeached).
So suppose Congress does impeach Trump and Pence. Your friend from abroad hears the news and worries -- has Nancy Pelosi just announced a coup? How do you explain that that isn't really an accurate description of what happened, in a way that distinguishes the "faithless elector" case?
(As you might imagine, what's really prompted this line of thinking is the "legal" arguments for Juan Guaido claiming the presidency in Venezuela. Even assuming he's obeying the letter of the law -- is this more like an impeachment, or more like a faithless elector? Of course, I think the actual answer is that the "legitimate" legal structures in Venezuela have decayed so severely that trying to think in terms of legitimated legal pathways is just a misfire completely -- we're talking about a country where the Supreme Court, stacked with Maduro loyalists, just outright dissolved the national assembly, after all)
Thursday, January 24, 2019
Informed Uninformed Thoughts on Venezuela
I am not particularly uninformed on Venezuela. But I feel decently informed about what I don't know about Venezuela and, more importantly, what that uninformedness should yield (hint: not sweeping confident endorsement of any particular move or action). So here are my informed, uninformed thoughts:
1) Nicolas Maduro is an authoritarian thug. Nobody should pretend like he's anything else.
2) I don't really know anything about Juan Guaido. I suspect I'd like him more than Maduro because, well, how could I not? But I've been burned before.
3) Coups are bad. They don't become good just because I think I'll like the incoming leader more than the deposed one.
4) I don't know if this is a coup, because I don't know enough (read: anything) about Venezuelan legal structures to know if Guaido's actions track valid legal pathways available to the General Assembly. Put differently, is this "coup" the equivalent of Trump/Pence getting impeached (a perfectly legally-validated pathway for changing America's head of state) and that being labeled a "coup" by Pelosi?
5) Just as a lawyer, I am well aware that pretty much any position can be justified to an uninformed lay person via too-cute formalist arguments that nobody who actually knows anything about the law would swallow. But -- since discerning if that's what's happening here requires that sort of deep enmeshment in the Venezuelan legal tradition that I don't have and can't realistically get -- there's no way for me to know which side, if any, is being cute like this.
6) It's very likely that Maduro was fraudulently elected. That doesn't mean his ouster can't be a coup -- non-democratically elected leaders can be targeted for coups too, and there are good reasons to still oppose such coups -- but it does take the steam out of the "but democracy!" objections a bit.
7) Elections, at their core, are ways of compelling leaders to give up power even when they'd rather stay in office. Which raises the question: by what method, other than a coup, can a non-democratic leader be compelled to give up power even when they'd rather stay in office?
8) The U.S. shouldn't intervene, in the sense of, say, a military incursion. At the same time, at some level the U.S. can't fully stay out -- we have to recognize someone's government after all. And it begs the question to say "Venezuela's government should be decided by the Venezuelan people" -- true, obviously, but the entire locus of the dispute in Venezuela is which government actually has been chosen by the people.
9) I am deeply cynical that this is going to play out in a manner that even remotely approximates "good". I suspect Maduro will remain in power (regardless of whether Guaido was acting "legally" or not), and I suspect we will see a further clampdown on the political rights and liberties in Venezuela in its wake.
1) Nicolas Maduro is an authoritarian thug. Nobody should pretend like he's anything else.
2) I don't really know anything about Juan Guaido. I suspect I'd like him more than Maduro because, well, how could I not? But I've been burned before.
3) Coups are bad. They don't become good just because I think I'll like the incoming leader more than the deposed one.
4) I don't know if this is a coup, because I don't know enough (read: anything) about Venezuelan legal structures to know if Guaido's actions track valid legal pathways available to the General Assembly. Put differently, is this "coup" the equivalent of Trump/Pence getting impeached (a perfectly legally-validated pathway for changing America's head of state) and that being labeled a "coup" by Pelosi?
5) Just as a lawyer, I am well aware that pretty much any position can be justified to an uninformed lay person via too-cute formalist arguments that nobody who actually knows anything about the law would swallow. But -- since discerning if that's what's happening here requires that sort of deep enmeshment in the Venezuelan legal tradition that I don't have and can't realistically get -- there's no way for me to know which side, if any, is being cute like this.
6) It's very likely that Maduro was fraudulently elected. That doesn't mean his ouster can't be a coup -- non-democratically elected leaders can be targeted for coups too, and there are good reasons to still oppose such coups -- but it does take the steam out of the "but democracy!" objections a bit.
7) Elections, at their core, are ways of compelling leaders to give up power even when they'd rather stay in office. Which raises the question: by what method, other than a coup, can a non-democratic leader be compelled to give up power even when they'd rather stay in office?
8) The U.S. shouldn't intervene, in the sense of, say, a military incursion. At the same time, at some level the U.S. can't fully stay out -- we have to recognize someone's government after all. And it begs the question to say "Venezuela's government should be decided by the Venezuelan people" -- true, obviously, but the entire locus of the dispute in Venezuela is which government actually has been chosen by the people.
9) I am deeply cynical that this is going to play out in a manner that even remotely approximates "good". I suspect Maduro will remain in power (regardless of whether Guaido was acting "legally" or not), and I suspect we will see a further clampdown on the political rights and liberties in Venezuela in its wake.
Wednesday, January 23, 2019
Let's Analyze Maryland's Anti-BDS Executive Order!
Back in 2017, Maryland Governor Larry Hogan (R) promulgated an executive order barring state contracts with companies which boycott Israel. Now, a former Maryland State Delegate, Saqib Ali, is suing, claiming the order violates the First Amendment.
I actually knew Saqib, back in the day (we used to be Facebook friends). He was elected to the House of Delegates in 2006, served for four years before unsuccessfully mounting a primary challenge to incumbent State Senator Nancy King, and hasn't returned to politics since. He was also an ally of then-Rep. Albert Wynn, back when he was trying to fend off an (ultimately successful) primary challenge from Donna Edwards.
But enough reminiscing. You don't come here for trips down memory lane, you come here for my cutting-edge analysis of anti-BDS enactments -- e.g., my guide for writing anti-BDS laws without making a "constitutional and PR mess". So how does this one fare?
Honestly? Better than many, albeit not perfect.
What's interesting about this particular EO is that it is actually quite narrowly written -- indeed, it is one of the closest to my preferred "just write a damned anti-discrimination provision" formulation that I've seen. The EO's definition of boycotting Israel covers only actions taken "because of [an entity's] Israeli national origin, or residence and incorporation in Israel or its territories."
Moreover, it expressly does not cover non-commercial actions, boycotts of the Israeli government or other "public" entities, and, most importantly, boycotts taken "because of the specific conduct of the person or entity."
So, in effect, the Maryland EO would preclude a contractor from saying, flatly, "I won't work with any Israeli entity, because they're Israeli." But if one had a specified objection to a given company -- "I won't work with this Israeli company, because they engage in this objectionable practice" -- that would be fine.
It's worth juxtaposing this order against the Rubio bill being debated in the Senate. To be sure, the latter is awkward to talk about because its really an anti-preemption bill and doesn't actually change any positive law regarding BDS. But the way Rubio formulates anti-BDS laws is quite different from how Hogan did it.
Rubio's bill purports to encompass boycotts taken "for purposes of coercing political action by, or imposing policy positions on, the Government of Israel." The at least quasi-expressive character of the boycott is built in; indeed, as I observed, Rubio's bill actually doesn't cover straightforward discrimination cases ("I won't work with Israelis because they're Israeli"), but would cover even boycotts of certain American companies if the goal was to "coerce" Israeli political action (e.g., boycotting Caterpillar to try and get Israel to change its housing demolition practices). The more expressive the boycott is, the more vulnerable it is under Rubio's proposed law.
By contrast, the Maryland EO runs in the opposite direction: where one acts for specified, expressive reasons -- i.e., due to particular choices that company or entity has made -- the boycott is protected. It is only the raw act of refusing to work with someone based on their nationality that is proscribed. And while one could characterize even that as "expressive", we have very good reasons not to go down the road of "my refusal to do business with people based on their nationality is protected expression!"
So those are some of things I like about the EO. What don't I like? Well, there's the failure to differentiate between Israel proper and the territories, to begin with. And more importantly, I continue to think we'd be better off just writing a general anti-discrimination requirement, rather than an Israel-only one-off. Why not just say state contractors must certify that do not boycott any company "because of [its] national origin, or residence and incorporation in a particular nation or territory"? So much aggravation could be avoided this way! (Which suggests that, maybe, the aggravation is the point).
The inclusion only of Israel also creates a needless viewpoint discrimination opening that otherwise wouldn't exist. On the one hand, it seems to me that the Maryland EO only prohibits conduct targeting Israeli national origin that could already be proscribed by a general anti-nationality discrimination rule. But there is obviously something askance in only prohibiting national origin discrimination against one nation (just as I'm fine with prohibiting discrimination on basis of a contractor's "religion", but I'm much less fine prohibiting discrimination on basis of a contractor being "Protestant" or "Buddhist". No, I don't think you should be able to discriminate against Buddhists -- but what message does it send when it's only that religion that's protected?).
I also observed that my preference is for these laws to only regulate contractors as contractors, not in their "off-the-clock" decisions, and that they probably should exempt sole proprietorships. The "off-the-clock" issue is vague here -- while the EO on face seems to also cover anti-Israel discrimination that is unrelated to the contractor's work for the state, the implementation of the EO seems to narrow its ambit. A bidder or contractor is asked to certify that it
But the EO definitely does apply to sole proprietors. That gives us a chance to mention Ali's specific suit, since he is suing as a sole proprietor who wants to apply for certain state software development contracts.
The thing is -- I think it's an open question whether Ali even has standing to sue, because I'm not sure he successfully pleads that his conduct actually conflicts with what's proscribed under the EO. For one, David Bernstein has argued that there is a difference between regulating a "sole proprietorship" and the individual who is a "sole proprietor" in their personal capacity -- only the former is precluded from boycotting Israel, but the individual-qua-individual is free to do whatever he wants. The complaint Ali filed does not, to my knowledge, ever say that Ali-the-software-engineer engages in any boycotting activity. Indeed, if anything it indicates the opposite -- it's a personal stand he takes personally:
If we go back to how Maryland appears to be implementing the law -- asking the bidder whether it has refused to contract with an Israeli-qua-Israeli "in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier" -- this problem comes into sharper focus: has Ali, at any point, had even the occasion to reject Sabra or Sodastream as a "vendor" for one of his software engineering projects? I'm dubious.
Now to be fair, the whole point of sole proprietorships is that the border between the "company" and the individual is blurry and doesn't really need to be kept firmly separate. If Ali works out of a home office and decides he's not going to keep Sabra Hummus as a snack in the minifridge, is he boycotting or is the proprietorship? So there remains some uncertainties in such a case -- which is one reason why I think states need to be very careful in applying these laws to sole proprietorships.
But there's a bigger problem lurking Ali's case: His complaint doesn't actually say he boycotts Israeli companies on basis of their nationality. It says that he boycotts Sabra Hummus and SodaStream -- but it doesn't say why in any real detail ("which have ties to Israel and its occupation of Palestine"). The indication is that he chose those companies "because of the specific conduct" they've engaged in with respect to Palestinians -- conduct which Ali objects to. But such decisions are expressly not covered by the Executive Order. It seems to me that to establish an actual clash with the law, Ali would have to aver that he boycotts those companies because of their "Israeli national origin" or their "incorporation and residence" in Israel or Israeli-occupied territories. And so while he says he can't sign the certification "in good faith", I actually think it's likely that he hasn't done anything that would foreclose him from doing so.
Indeed, I kind of suspect that Ali's problem isn't that he actually engages in conduct proscribed by the EO. It's that he doesn't want to say he doesn't boycott Israel -- even if, for purposes of the rules of the EO, he doesn't. This isn't as uncommon as you'd think -- there's a long history of government compelling corporations to engage in certain speech (e.g., being forced to label that their product is "Made in China"), and an equally long history of corporations trying to allege that such compulsions violate the First Amendment. I tend to be skeptical of those claims, particularly in the context of a certification submitted to a contracting officer -- hardly an activity typically thought of as "expressive". And here, where Ali could sign the certification and would nonetheless be free to state -- as loudly as he wants -- that he's still boycotting SodaStream and he's doing it because of this that and the other malign conduct SodaStream has engaged in, the restriction on his expressive capacities is minimal.
The law here remains unsettled, and the Maryland order is certainly not perfect -- in particular, I just really wish states would get off the "anti-BDS" kick entirely and just pass consistent rules governing nationality-based discrimination if that's what they care about. That said, the Maryland EO is considerably better than many of its peers -- mostly because it contains itself to cases of straightforward discrimination and, unlike Rubio's bill, doesn't target expressive conduct. And because it's so narrowly focused, it might not even be the case that Ali actually has standing to challenge it -- I think there's a very viable motion to dismiss here for the state's attorney general's office. I suppose we'll see soon enough.
I actually knew Saqib, back in the day (we used to be Facebook friends). He was elected to the House of Delegates in 2006, served for four years before unsuccessfully mounting a primary challenge to incumbent State Senator Nancy King, and hasn't returned to politics since. He was also an ally of then-Rep. Albert Wynn, back when he was trying to fend off an (ultimately successful) primary challenge from Donna Edwards.
But enough reminiscing. You don't come here for trips down memory lane, you come here for my cutting-edge analysis of anti-BDS enactments -- e.g., my guide for writing anti-BDS laws without making a "constitutional and PR mess". So how does this one fare?
Honestly? Better than many, albeit not perfect.
What's interesting about this particular EO is that it is actually quite narrowly written -- indeed, it is one of the closest to my preferred "just write a damned anti-discrimination provision" formulation that I've seen. The EO's definition of boycotting Israel covers only actions taken "because of [an entity's] Israeli national origin, or residence and incorporation in Israel or its territories."
Moreover, it expressly does not cover non-commercial actions, boycotts of the Israeli government or other "public" entities, and, most importantly, boycotts taken "because of the specific conduct of the person or entity."
So, in effect, the Maryland EO would preclude a contractor from saying, flatly, "I won't work with any Israeli entity, because they're Israeli." But if one had a specified objection to a given company -- "I won't work with this Israeli company, because they engage in this objectionable practice" -- that would be fine.
It's worth juxtaposing this order against the Rubio bill being debated in the Senate. To be sure, the latter is awkward to talk about because its really an anti-preemption bill and doesn't actually change any positive law regarding BDS. But the way Rubio formulates anti-BDS laws is quite different from how Hogan did it.
Rubio's bill purports to encompass boycotts taken "for purposes of coercing political action by, or imposing policy positions on, the Government of Israel." The at least quasi-expressive character of the boycott is built in; indeed, as I observed, Rubio's bill actually doesn't cover straightforward discrimination cases ("I won't work with Israelis because they're Israeli"), but would cover even boycotts of certain American companies if the goal was to "coerce" Israeli political action (e.g., boycotting Caterpillar to try and get Israel to change its housing demolition practices). The more expressive the boycott is, the more vulnerable it is under Rubio's proposed law.
By contrast, the Maryland EO runs in the opposite direction: where one acts for specified, expressive reasons -- i.e., due to particular choices that company or entity has made -- the boycott is protected. It is only the raw act of refusing to work with someone based on their nationality that is proscribed. And while one could characterize even that as "expressive", we have very good reasons not to go down the road of "my refusal to do business with people based on their nationality is protected expression!"
So those are some of things I like about the EO. What don't I like? Well, there's the failure to differentiate between Israel proper and the territories, to begin with. And more importantly, I continue to think we'd be better off just writing a general anti-discrimination requirement, rather than an Israel-only one-off. Why not just say state contractors must certify that do not boycott any company "because of [its] national origin, or residence and incorporation in a particular nation or territory"? So much aggravation could be avoided this way! (Which suggests that, maybe, the aggravation is the point).
The inclusion only of Israel also creates a needless viewpoint discrimination opening that otherwise wouldn't exist. On the one hand, it seems to me that the Maryland EO only prohibits conduct targeting Israeli national origin that could already be proscribed by a general anti-nationality discrimination rule. But there is obviously something askance in only prohibiting national origin discrimination against one nation (just as I'm fine with prohibiting discrimination on basis of a contractor's "religion", but I'm much less fine prohibiting discrimination on basis of a contractor being "Protestant" or "Buddhist". No, I don't think you should be able to discriminate against Buddhists -- but what message does it send when it's only that religion that's protected?).
I also observed that my preference is for these laws to only regulate contractors as contractors, not in their "off-the-clock" decisions, and that they probably should exempt sole proprietorships. The "off-the-clock" issue is vague here -- while the EO on face seems to also cover anti-Israel discrimination that is unrelated to the contractor's work for the state, the implementation of the EO seems to narrow its ambit. A bidder or contractor is asked to certify that it
has considered all bid/proposals submitted from qualified, potential subcontractors and suppliers, and has not, in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier, refused to transact or terminated business activities, or taken other actions intended to limit commercial relations, with a person or entity on the basis of Israeli national origin, or residence or incorporation in Israel and its territories. The Bidder/Offeror also has not retaliated against any person or other entity for reporting such refusal, termination, or commercially limiting actions.That, to me, asks only about their conduct with respect to subcontractors, vendors, or suppliers for the contract they're bidding on -- a case where Maryland's interest in the conduct of the potential contractor is at its apex. Obviously, Maryland has an interest in ensuring that its contractors pick their subcontractors, vendors, etc., based on their merits and not winnowed the field via political litmus tests.
But the EO definitely does apply to sole proprietors. That gives us a chance to mention Ali's specific suit, since he is suing as a sole proprietor who wants to apply for certain state software development contracts.
The thing is -- I think it's an open question whether Ali even has standing to sue, because I'm not sure he successfully pleads that his conduct actually conflicts with what's proscribed under the EO. For one, David Bernstein has argued that there is a difference between regulating a "sole proprietorship" and the individual who is a "sole proprietor" in their personal capacity -- only the former is precluded from boycotting Israel, but the individual-qua-individual is free to do whatever he wants. The complaint Ali filed does not, to my knowledge, ever say that Ali-the-software-engineer engages in any boycotting activity. Indeed, if anything it indicates the opposite -- it's a personal stand he takes personally:
Personally, Saqib Ali refuses to purchase Sabra hummus or SodaStream products, which have ties to Israel and its occupation of Palestine. He also advocates for others to join the BDS movement, and monitors current events in order to identify and promote specific BDS actions (Para. 35).This is the only place in the complaint where Ali alleges any conduct or practice by him which supposedly clashes with the EO, and it speaks of what he does personally, not professionally (it should be, though almost certainly isn't, needless to say that Ali's expressive advocacy to promote the BDS movement is not covered by the EO and isn't germane to the complaint).
If we go back to how Maryland appears to be implementing the law -- asking the bidder whether it has refused to contract with an Israeli-qua-Israeli "in the solicitation, selection, or commercial treatment of any subcontractor, vendor, or supplier" -- this problem comes into sharper focus: has Ali, at any point, had even the occasion to reject Sabra or Sodastream as a "vendor" for one of his software engineering projects? I'm dubious.
Now to be fair, the whole point of sole proprietorships is that the border between the "company" and the individual is blurry and doesn't really need to be kept firmly separate. If Ali works out of a home office and decides he's not going to keep Sabra Hummus as a snack in the minifridge, is he boycotting or is the proprietorship? So there remains some uncertainties in such a case -- which is one reason why I think states need to be very careful in applying these laws to sole proprietorships.
But there's a bigger problem lurking Ali's case: His complaint doesn't actually say he boycotts Israeli companies on basis of their nationality. It says that he boycotts Sabra Hummus and SodaStream -- but it doesn't say why in any real detail ("which have ties to Israel and its occupation of Palestine"). The indication is that he chose those companies "because of the specific conduct" they've engaged in with respect to Palestinians -- conduct which Ali objects to. But such decisions are expressly not covered by the Executive Order. It seems to me that to establish an actual clash with the law, Ali would have to aver that he boycotts those companies because of their "Israeli national origin" or their "incorporation and residence" in Israel or Israeli-occupied territories. And so while he says he can't sign the certification "in good faith", I actually think it's likely that he hasn't done anything that would foreclose him from doing so.
Indeed, I kind of suspect that Ali's problem isn't that he actually engages in conduct proscribed by the EO. It's that he doesn't want to say he doesn't boycott Israel -- even if, for purposes of the rules of the EO, he doesn't. This isn't as uncommon as you'd think -- there's a long history of government compelling corporations to engage in certain speech (e.g., being forced to label that their product is "Made in China"), and an equally long history of corporations trying to allege that such compulsions violate the First Amendment. I tend to be skeptical of those claims, particularly in the context of a certification submitted to a contracting officer -- hardly an activity typically thought of as "expressive". And here, where Ali could sign the certification and would nonetheless be free to state -- as loudly as he wants -- that he's still boycotting SodaStream and he's doing it because of this that and the other malign conduct SodaStream has engaged in, the restriction on his expressive capacities is minimal.
The law here remains unsettled, and the Maryland order is certainly not perfect -- in particular, I just really wish states would get off the "anti-BDS" kick entirely and just pass consistent rules governing nationality-based discrimination if that's what they care about. That said, the Maryland EO is considerably better than many of its peers -- mostly because it contains itself to cases of straightforward discrimination and, unlike Rubio's bill, doesn't target expressive conduct. And because it's so narrowly focused, it might not even be the case that Ali actually has standing to challenge it -- I think there's a very viable motion to dismiss here for the state's attorney general's office. I suppose we'll see soon enough.
Tuesday, January 22, 2019
Meeting Day Roundup
Today was a big meeting day for me (I was basically continuously talking with people from 10 AM to 3:45 PM -- lunch included). But it was fun! The conversations were nice and very productive. I met somebody new, got mentored by my adviser and mentored two undergraduate advisees. All in all, a good day.
* * *
My friend Sarah Levin explains why, as a Mizrahi Jewish women, she did not feel comfortable marching with the Women's March this year. Particularly given how the debate over the Women's March has often been perceived to break down as "White Jewish women" versus "Middle Eastern/POC women", Sarah's perspective regarding Mizrahi erasure is an important one that needs consideration.
In the course of defending excluding all Israelis from the country, the Malaysian Prime Minister also explains why he so frequently indulges in naked antisemitism: "when I say only the 'Zionists,' people don’t understand. What they do understand is the word 'yahudi' or 'Jews.'" Oh, I bet they do.
Orin Kerr flags a Third Circuit which raises an interesting qualified immunity question: how long after the release of an opinion does the legal holding of that opinion become "clearly established". My instinctive view is "immediately" (or, at least, immediately after the mandate issues). But that may well be colored by my view that qualified immunity is basically a set of special privileges given to government officials to break the law that aren't extended to everyday citizens.
Buzzfeed publishes a report (apparently originally printed in a Swiss magazine) claiming that two Jewish political operatives were originally behind the campaign to vilify George Soros; a JTA article expresses skepticism about the timeline.
Rep. Ilhan Omar (D-MN) apologizes for a 2012 tweet where she accused Israel having "hypnotized the world" to blind global actors to the Jewish state's "evil". The apology was proximately prompted by this column from Bari Weiss, explaining the antisemitic provenance behind the "hypnotized" language; Weiss thanked Omar for her apology and extended an open invitation to her to write on the issue in the New York Times op-ed section.
* * *
My friend Sarah Levin explains why, as a Mizrahi Jewish women, she did not feel comfortable marching with the Women's March this year. Particularly given how the debate over the Women's March has often been perceived to break down as "White Jewish women" versus "Middle Eastern/POC women", Sarah's perspective regarding Mizrahi erasure is an important one that needs consideration.
In the course of defending excluding all Israelis from the country, the Malaysian Prime Minister also explains why he so frequently indulges in naked antisemitism: "when I say only the 'Zionists,' people don’t understand. What they do understand is the word 'yahudi' or 'Jews.'" Oh, I bet they do.
Orin Kerr flags a Third Circuit which raises an interesting qualified immunity question: how long after the release of an opinion does the legal holding of that opinion become "clearly established". My instinctive view is "immediately" (or, at least, immediately after the mandate issues). But that may well be colored by my view that qualified immunity is basically a set of special privileges given to government officials to break the law that aren't extended to everyday citizens.
Buzzfeed publishes a report (apparently originally printed in a Swiss magazine) claiming that two Jewish political operatives were originally behind the campaign to vilify George Soros; a JTA article expresses skepticism about the timeline.
Rep. Ilhan Omar (D-MN) apologizes for a 2012 tweet where she accused Israel having "hypnotized the world" to blind global actors to the Jewish state's "evil". The apology was proximately prompted by this column from Bari Weiss, explaining the antisemitic provenance behind the "hypnotized" language; Weiss thanked Omar for her apology and extended an open invitation to her to write on the issue in the New York Times op-ed section.
Monday, January 21, 2019
Happy MLK Day!
Whether you march, or write, or sit in or stand up or speak out, here's wishing a great MLK day to all those putting in the work to making our society more fair, more just, more equitable, and more egalitarian than it was yesterday.