Germany Boycotting the World Cup?

There's chatter that Germany might boycott the World Cup, as a response to American aggression towards Greenland (among other sins).

I actually don't think this will go anywhere. Certainly, even the talk of it is an embarrassment for FIFA (and so soon after delivering Trump his knock-off Nobel too!). But then, FIFA may be the single most corrupt sports organization on the planet (the only competition I can think of is the International Boxing Association -- amateur boxing's oversight body -- whose leader is a mobbed-up Russian stooge. But they're obviously smaller potatoes than FIFA). They may not be capable of embarrassment.

As a rule, I'm opposed to sporting boycotts, at least as applied to teams. I don't find the argument that participation in international sporting events is some sort of PR coup for the flag-bearer to be especially compelling (the idea that the U.S. women's soccer team is acting to glorify Trump seems ... specious). And I think there is something nice about the countries of the world "coming together in one place for the primary and fundamental purpose of doing something fun and joyous." The norm is that we don't use international sport to pass commentary on a nation's politics or policy, however destructive it may be, and so I oppose sports boycotts for any nation -- the U.S., Iran, China, Israel, Russia, North Korea, you name it.

As for hosting an event, my opinion is the same -- with one substantial caveat. I don't think we should boycott hosts because of the host nation's politics, and I don't buy the notion that hosting represents some sort of glorification of the host. The exception-caveat is where there is credible reason to suspect that the host nation will be exclusionary towards, if not outright dangerous to, its visitors and guests -- the other teams, their coaches and staff, and their fans and spectators. The Trump administration's various visa bans -- now effecting potential qualifiers Iran, Haiti, Senegal and the Ivory Coast -- represent exactly that sort of threat. They are, for me, what make the boycott calls at least worthy of consideration -- not against Team USA as a team, but against the United States as a host.

Indeed, while I assume many will associate the boycott call to various efforts to exclude Israel from international sporting competitions, the closer analogy is actually to host nations which have sought to exclude Israelis from participating in international competitions within their borders. The basic duty of hosting an international sporting event is to be a host. A nation unwilling to do that -- for whatever reason -- is breaching its most essential compact as a host, and so justifies having the privilege of hosting taken away. It is embarrassing that America may now fall into that category. But there is a lot to be embarrassed about in this day and age.

The Columbia-Boycotting Judges Should Recuse from Columbia-Related Cases

A Seventh Circuit panel has dismissed a judicial ethics complaint levied against one of the judges who announced a boycott of Columbia University graduates in his clerkship hiring.

This was, I think, the correct decision, and I have no substantive quarrel with the panel's analysis. Moreover, the complainant, who "is serving a sentence in a state prison after a jury found him guilty of arson, terrorism, and other crimes stemming from his role in firebombing and vandalizing Jewish houses of worship" and who loaded up his complaints with spurious conspiracies of foreign influence and control, is hardly the ideal party to raise concerns about judicial behavior in this context.

That said, while I agree that there is no ethics violation to be found in the Columbia boycott, I do think that the signatories to the boycott letter are obligated to recuse themselves from any Columbia-related cases -- including cases where a party is represented by a Columbia attorney who matriculated in the targeted time period. An academic boycott of this sort necessarily signals bias against persons under the umbrella of the targeted institution, and both the university and its graduates can fairly wonder if they will be treated fairly in the courtroom of a judge who participates in this boycott.

To understand why, it's important to be clear about what a boycott is. One point that is often emphasized in this conversation is that judges have extremely wide latitude in deciding who their clerks will be and on what criteria they will be selected. For example, the panel here wrote:

Except to the extent prohibited by these regulations and guidelines, judges have wide discretion to establish their own screening and selection criteria in appointing law clerks. This latitude permits judges to make distinctions among applicants based on their own determinations of the relevant criteria or qualifications, including where the applicants were educated. Some judges only hire graduates of certain law schools. Some tailor their preferences to the specific needs of their court or chambers—for example, by looking for candidates from law schools with excellent writing or trial advocacy programs or strong core curricula in relevant subject areas. Relatedly, some judges only consider candidates with a GPA in the top 10 or 20 percent of their law-school class (or some other academic cutoff). Some require membership in the law review or moot court team. Others prioritize candidates from law schools in their state or circuit.

This is quite right. But then they continue to say that "[i]n the same way, a judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education like civility in discourse, respect for freedom of speech, and viewpoint nondiscrimination."

I don't think these are the same. And one hint that they're not the same is that you would never hear any of the examples cited in the first paragraph described as a "boycott". A judge who will only hire (or more likely, strongly prefers to hire) applicants for law schools in their state would not characterize herself as "boycotting" the other 49 states. A judge who only hires students in the top 20% of their class would not say he is "boycotting" the bottom 80%. A "boycott" by its nature is different from the ordinary and normal processes of selection that judges (and all of us) do on a daily basis. And -- more to the point -- one calls what one is doing a "boycott" precisely in order to draw that distinction and to signal that one is departing from the normal and unremarkable exercise of discretionary selection.

Consider another example: there are many restaurants in Portland. In deciding where I go to eat, there is a wide range of screening and selection criteria I might use, from taste to price to convenience. Even with those criteria, the vast majority of restaurants I never have and never will eat at -- but nobody would say I am "boycotting" them. In other cases I have eaten at them, but decided that (for example) the food was bad and so will not return. Again, under ordinary usage nobody would call that a "boycott". 

If I announced I was boycotting a given restaurant, the ordinary listener would understand that I am doing something different than identifying the place as among the many, many restaurants I don't eat at for "normal" reasons. A boycott, rather, is a decision to not patronize or transact with a given establishment, based on reasons that lie outside the normal evaluative criteria one typically uses to select a restaurant and in order to effectuate some change in behavior that also lies outside the normal bases one uses to select where to dine (one might say, with respect to the restaurants I no longer visit because the food is bad, that my non-patronage is an attempt to "pressure" them to improve their menus and I won't return until my demands are met, but this would again be highly idiosyncratic usage). The expressive meaning of a boycott -- what makes it a boycott as opposed to an unremarkable decision not to patronize -- is a declaration that "I will not transact with you even if you do meet the criteria I normally use."

This highlights another feature of boycotts: by their nature and by design, they stand in opposition to individualized consideration of a candidate on his or her merits. Return to the law school example. Contra the above paragraph, I actually think it is quite rare for a judge to have a flat rule -- as opposed to a strong preference -- to only hire clerks from a certain state or with a certain GPA or possessing a certain academic background (the repeated use of language like "preferences" and "prioritizes" is again a hint here). They would not reject on principle an oddball candidate who doesn't meet one of the normal screens but for whatever reason still stands out to the judge as extraordinary. Now, it may be that, given the surplus of qualified candidates, in practice no such "oddballs" ever emerge; there are always enough candidates who fill the normal criteria and are also deemed extraordinary. But again, the point of a boycott is precisely that it entails refusing, in advance and without exception, to even consider the applicant no matter what their merits might be. One refuses to dine at the boycotted restaurant no matter how tasty one of its dishes may be. One refuses to hire from the boycotted school no matter how superb one of its graduates may be.

And this is where the issue of bias does creep in. The putative justification for the blanket boycott of Columbia is that the university is so suffused in antisemitism and broader censorialism that all of its graduates are indelibly tainted -- so much so that the judges are outright refusing to engage in any individualized consideration or assessment of any members of the community. I've observed before and I'll observe again that not only are the nominal victims here -- Columbia's Jews and/or conservatives --covered by the boycott, they are in fact its most likely targets (those harassing Jews on campus were not likely to be applying to the judges in question in the first place). Assessed as individuals, it would be weird to impute the sins of Columbia writ large onto their heads. But the entire point of the boycott is that substitutes collectivist grievance for individualized consideration:

[T]he point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho [or other signatories to the boycott letter] declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

I recognize, of course, that at some level there is no such thing as truly "individualized" consideration and there is inevitable mushiness around terms like "normal evaluative criteria" (I recognize that; I wish the courts understood it better in the context of affirmative action). But my position is that the very invocation of the term "boycott" is a declaration and a concession to that point: one says one is boycotting because one wants to express that you're not just doing the ordinary work of meritocratic selection. 

To put it starkly: the core, distilled message the signatories of the Columbia boycott are sending vis-a-vis Columbia students is "because of your association with Columbia, we will not assess you as individuals or on your merits. Your association is enough to render you irrebuttably tainted in our eyes." 

Given that, could an attorney who matriculated at Columbia in the relevant time period feel confident that one of these judges would abide by their judicial duty -- will assess their arguments, behavior, and comportment based on their individual performance and "on their merits"? I don't think they can have that confidence, and I think those fears are reasonable.

None of this constitutes an ethics violation -- a judge does not commit an ethics violation simply by engaging in conduct which would, given the right parties or circumstances, compel a recusal. But I do think that any judge who announces an academic boycott of a given law school, in circumstances where that necessarily entails an announced refusal to judge that school's community members as individuals and on their individual merits, can reasonably have their impartiality questioned when later asked to assess the merits and demerits of that school or its graduates.

(There's one other element of the boycott that I haven't heard talked about much: the extent to whether it crosses over from permitted "jawboning" to impermissible government efforts to censor speech. The boycott imposes official sanctions on Columbia unless it makes various alterations to its school speech and disciplinary policies to the satisfaction of the boycotting judges. Obviously, Columbia has no First Amendment right to, for example, violate Title VI. But while it can, as a private university, suppress antisemitic speech, it is not obligated to; and the government cannot compel it to. Less obviously, but perhaps more importantly, as a private university Columbia is not required to abide by any commitment to viewpoint neutrality or "evenhanded" treatment of different types of protesters. While I doubt Columbia would concede the premise that it does engage in any sort of biased behavior -- and my recollection is that the letter was in fact purely speculative on this point -- the point is that Columbia's choices as to what views it does or does not favor are an exercise of its free speech and associational rights, and official efforts to punish the university for expressing itself incorrectly seem to raise significant First Amendment problems).

Judge Ho's Politics of Collectivist Grievance

Last week, the Fifth Circuit refused to rehear en banc its bombshell ruling that states are, in most circumstances, forbidden from counting ballots that are submitted before election day but received after election day -- even where the practice is expressly authorized by state law. Permitting ballots postmarked by election day, but received sometime afterwards, is a common practice in many states across the country, and Congress has said nothing on the subject. But the Fifth Circuit -- channeling the recent partisan right attacks on mail-in voting nationwide -- decided that congressional silence demanded prohibition of this longstanding electoral practice.

I'm not going to write on the substantive question of this case though (Election Law Blog collects coverage here). Rather, I want to flag Judge Ho's two-page concurring 4chan post opinion, where he takes aim at his dissenting colleague Judge Higginson for noting the powerful critique of the panel decision by a "topflight" lawyer unaffiliated with the parties and who urged that it be addressed by the court.

Judge Ho is unimpressed. He says that this attorney's intervention doesn't offer any useful information to the court -- indeed, he doesn't address it at all. Rather, it "may just reflect the institutional bias at many of the nation’s largest law firms."

At one level, given the timing of this opinion, it is hard not to see Judge Ho's attack on national law firms as intentionally aligning itself with the Trump administration's crackdown on these same firms (also putatively because of their "bias" towards liberal causes). One major clue that is Ho's angle is a gratuitous shot he takes at BigLaw DEI practices, which has nothing to do with either the case at hand or law firms' alleged preference for liberal causes in their pro bono case selection, but of course looms large in Trump's own assault on the American legal citadel.

But it also is reflective of a broader pattern in Judge Ho's judicial temperament (or lack thereof) -- a pattern of grievance where, upon identifying broad classes of enemy groups, he defiantly abandons any pretense of judging individuals as individuals or on their individual merits.

Judge Ho's jeremiad in this opinion is against the practices of law firms. As a class, Ho alleges, these firms exhibit "institutional bias", these firms "are falling short of 'the great traditions of the profession,'", the firms "have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases that they’re willing to take on," and consequently the firms should not "be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly."

All of these attacks on large law firms elides the fact that Judge Higginson did not ever appeal to, or even mention, the august reputation of large law firms. He rather flagged the critique of one particular "topflight" lawyer -- Adam Unikowsky. Unikowsky is indeed a partner at the BigLaw firm Jenner & Block, he also as it happens is a former clerk for Justice Scalia. I don't know what types of cases either he or Jenner more broadly typically takes on pro bono. I do know in this case he made a highly-publicized critique of the panel decision, one that many legal observers found compelling, on an issue he otherwise had no connection to. But note that the whole point of Ho's fusillade against what law firms, as a collective, are allegedly doing is to justify his peremptory refusal to even entertain the substantive arguments made by Unikowsky, as an individual. He is lumped into this broad bloc of "large law firms", and from there he can be summarily dismissed as doing what "they" do: "motivated lawyering designed to reach a predetermined result." And here -- well before any engagement with Unikowsky's actual arguments, solely on basis of collective associations -- the thinking ends.

This is not novel behavior by Judge Ho. Ho has been a leading figure promoting academic boycotts of both Yale and Columbia Law Schools, refusing to hire as clerks graduates from either institution on the grounds that both universities allegedly discriminate against conservatives (for Columbia, he also cited alleged antisemitism). Here, too, the point of the "boycott" is an announced refusal to judge certain law school graduates as individuals, on their individual merits. There is surely no quarrel with Judge Ho declining to hire a clerkship applicant who he deems to have discriminated against conservatives on campus -- one doesn't need a "boycott" to do that (one also suspects those suspects would not be applying to Judge Ho's chambers). Rather, those most impacted by the boycott are most likely to be those victimized by the alleged predatory behavior Ho identifies, or at the very least innocent bystanders. Again, no matter: the payoff -- and indeed, the point -- of Ho's "boycott" is to make it so that these applicants do not get evaluated as individuals. Their individual merits and demerits do not matter. They fall under the umbrella of an enemy collective, and that is all the thinking he needs to do about them.

The MAGA right pretends (though less and less often) that its objection to "DEI" is that it fails to respect people as individuals or judge them on their individual merits. In reality, there are few more avid practitioners of anti-meritocratic politics than contemporary conservatives, for whom everything is filtered through a lens of identity and grievance. And that's all the more reason to state clearly what has become obvious: Judge Ho's politics (and he is nothing if not a political judge) are fundamentally collectivist in nature. He is constantly looking for excuses to refuse to evaluate individuals as individuals if they belong to the wrong group. The only thing that matters to him is whether you fall in the friend or the enemy camp. For the former, everything; for the latter, the law(lessness).

Here, too, every accusation is a confession. When it comes to group-based grievance politics that deny Americans' right to be judged based on the content of their character, there are few more flagrant abusers that Judge James Ho.

The Israeli Government's Rapidly Imploding Antisemitism Conference

The JTA headline says it all: "After welcoming far-right politicians, Israel’s antisemitism conference is hemorrhaging speakers."

The Israeli government, spearheaded by Diaspora Affairs Minister Amichai Chikli, decided to use this conference as a high profile inauguration of Israel reversing its longstanding boycott of far-right political parties in Europe. Title notwithstanding, Chikli has always evinced pure contempt for diaspora Jews, so it is unsurprising that he'd raise this particular middle finger to Jewish safety around the world.

I first learned about folks pulling out of the conference from David Hirsh's announcement that he was doing so. Hirsh is one of the world's leading scholars on Contemporary Left Antisemitism and an incisive critic of the global BDS movement, so his departure is no small thing. He has been joined by figures including German antisemitism czar Felix Klein, French Jewish philosopher Bernard-Henri Levy, and British Chief Rabbi Ephraim Mirvis.

As of right now, ADL chieftain Jonathan Greenblatt is still on the speakers list, which certainly checks out (the decision to platform the European far-right was harshly criticized by Greenblatt's predecessor, Abe Foxman).

I consider the decision by Hirsh and his colleagues to be a brave and inspired one. The only thing I'll add is that I know Hirsh does not consider this to be an example of "boycotting Israel" and it does a disservice to his record and his choices to present it as such (whether as praise or condemnation). Much like with Natalie Portman, we should respect Hirsh's own understanding of what he's doing -- and what he's doing is not claiming that the mere presence of Israelis or an Israeli connection makes a conference tainted beyond salvation, but rather saying that the particular choices of this particular conference and its particular roster of speakers mean he cannot take the stage. Of course, it's possible to make "particular" choices that are so expansive in who they lock out that they are tantamount to a nationality-based sweep. But that's not what's happening here. 

There is no reason for diaspora Jews to endorse the Israeli government's clear decision that it cares more about allying with Europe's far-right than actually standing with the world's Jewish community, and as immiserating as that choice by Israel is for someone like me, I'm glad people like Hirsh are recognizing it for what it is and are responding accordingly.

UPDATE: Greenblatt has backed out too. Good on him.

Georgetown Stands Up in the Face of the Trump Admin's Attempted Academic Boycott

A little while ago, the Interim United States Attorney for the District of Columbia, Ed Martin -- who has rapidly begun distinguishing himself as one of Trump's most odious foot soldiers -- sent a letter to Georgetown Law School demanding that they eliminate all "DEI" from their curriculum and threatening to refuse to hire Georgetown graduates until they do so (if "a little while ago" sounds vague, that's because it took Martin two attempts to send the letter -- he misaddressed it the first time).

Martin's threats are reminiscent of the announced boycott of Columbia grads by Judge James Ho and some of his fellow far-right travelers, and the Dean of Georgetown responded exactly how I wish the Dean of Columbia would have responded: by refusing to give in and also by naming exactly what is happening here: a threat of official government penalty against private institutions for refusing to kowtow to official ideological orthodoxy. This goes way beyond the "jawboning" or informal requests that caused conservatives to shriek their heads off during the Biden administration; we have in these cases an explicit promise of legal retaliation on private actors who don't toe the government's line. It is hard to imagine a clearer instance of de jure censorship than this, and Georgetown Dean Bill Treanor doesn't mince words:

As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution. Georgetown University also prohibits discrimination and harassment in its programs and activities and takes seriously its obligations to comply with all federal and local laws.

Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

This is a bedrock principle of constitutional law – recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from “exercising control over the content of school curricula.” 

Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.

Georgetown Law has one of the preeminent faculties in the country, fostering groundbreaking scholarship, educating students in a wide variety of perspectives, and thriving on the robust exchange of ideas. Georgetown Law faculty have educated world leaders, members of Congress, and Justice Department officials, from diverse backgrounds and perspectives. We pride ourselves on providing an excellent graduate and professional education, built upon the Catholic and Jesuit tradition. Georgetown-educated attorneys have, for decades, served this country capably and selflessly in offices such as yours, and we have confidence that tradition will continue. We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.

Very well said. The appeal to religious liberty is also appreciated in this context, though I suspect the Jesuits will fare as well as liberal Jews will under the new free exercise jurisprudence.

It should be clear by now that the Trump administration and its right-wing fellow travelers are launching a full-fledged BDS campaign against American universities that don't bow to its ideological agenda. The proposed academic boycott against Georgetown is one example, the myriad donor threats to divest their funding from colleges that don't crackdown on disfavored programs or speech is another, the proposal to sanction Columbia by axing over $50 million in contracts is yet another. These endeavors are an anathema to academic freedom and First Amendment values, and must be opposed by all principled defenders of the academy.*

* What a shame that the AAUP recently and abruptly shifted course and decided, after decades of strong opposition, that actually academic boycotts are a-okay. It's almost like it was eminently predictable that abandoning that principle might backfire very quickly given how the right has been racing for excuses to punish universities who they've deemed "complicit" in ideological projects and activities they oppose!

On Loving "Campus Jews" While Hating Campus Jews, Part II

A few years ago, I wrote about how many external efforts to express "solidarity" with campus Jews facing antisemitism were defined by their obvious and overt disdain for, if not antagonism towards, campus Jews. What passes for "solidarity," too often, is intentionally and deliberately indifferent to the actual positions and desires of the students they're supposedly coming in to support. As I wrote then:

It is no revelation to say that Jews on campus experience their share of antisemitism, and deserve our support. But one of the more frustrating aspects of that reality is how that "support" often manifests in a fashion that is almost tauntingly unconcerned with what the Jews on campus actually want. "Support", too often, is not support at all -- it is a way for outsiders to exploit a headline or to ride their own hobbyhorses, and the campus Jews themselves are an afterthought....

[T]hose who drive the Hitler truck "in solidarity" do not at all care whether the Jews they "support" find their intervention all that supportive. By golly, Berkeley Jews are going to get this allyship whether they like it or not! And this is hardly an isolated event. Jewish students at the University of Michigan were livid at the Canary Mission putting their campus under the spotlight, complaining that it was making the environment for Jewish students on campus worse rather than better. No matter. Canary Mission's support for campus Jews is cheerfully indifferent to whether campus Jews feel supported.

Outside actors want to come in hyper-aggressive, but when campus Jews express frustration and try to say "you are not helping", they're met with dismissal verging on outrage. The outsiders love and support "campus Jews" as an abstraction, but they find the actual, flesh-and-blood campus Jews to be soft, weak-willed, squishy, and just overall contemptible.

Consider what happened recently at UCLA, where a group of pro-Israel counterdemonstrators (and if ever the phrase "outside agitators" was appropriate, here it is) assaulted a pro-Palestine encampment, leading to some of the most brutal and wide-scale incidents of violence we've seen over the past few weeks. While obviously chains of connection are at this stage blurry, it does seem that the counterprotesters were among the groups being supported by various external "pro-Israel" organizations. Unsurprisingly, the actual Jewish students at UCLA did not feel thankful or more secure by their "supporters" taking this action; to the contrary, it has decimated whatever social standing and moral credibility mainline Jewish students might have possessed with the broader UCLA community. And in the vein, UCLA students issued a statement that was a crystal-clear admonition to their putative "supporters":

We can not have a clearer ask for the off-campus Jewish community: stay off our campus. Do not fund any actions on campus. Do not protest on campus. Your actions are harming Jewish students.

The bold is original. And to be clear: the students who issued these statements are not aligned with the protesters. They identify as Zionists. They don't deny that there has been antisemitism amongst the protesters or on campus in general. That sort of very normie campus Jew is who is trying to communicate the message "you're not helping". And that, sadly, is exactly the sort of campus Jew who historically has been completely and utterly ignored by the rush of outsiders scrambling to demonstrate how much they care about "campus Jews".

In that vein, consider a recently announced academic boycott of Columbia University graduates by about a dozen federal judges, including Fifth Circuit Judge James Ho, on the grounds that Columbia has become an "incubator" of antisemitism. Is there any indication that Columbia's Jewish community wants "support" in this fashion? Is there any doubt that they view these judges' announcement as only making their position worse? No and no. But it doesn't matter, because this line of criticism assumes that Judge Ho and company want to help Columbia's Jewish community, when the truth is absolutely the opposite.  The abstract choice to "defend" campus Jews is paired with a palpable disdain for the campus' Jewish community.

This is at least the second time that Judge Ho has led an academic boycott campaign targeting universities on speech grounds (he sure does love BDS!), and much of what I said the last time applies here as well. It's serendipitous, but also no coincidence, that my introduction to my post about Ho's boycott "on behalf of" (but also targeting) Yale conservatives was a story about my own experience enduring harassment that began as misbegotten "solidarity" with me as a Berkeley Jewish student. The troll in question came to hate me because I was a Jew who didn't hate my time at Berkeley, and the only possible explanation for that sentiment in their eyes was that I was a self-hating Jew. 

Here too, one might find it strange that the very students these judges purport to be protecting -- beleaguered Jewish students attending Columbia -- are also covered by the boycott pledge. But this is intentional -- Ho et al fundamentally view any Jew who decides to attend Columbia for any reason as a traitor who deserves what's coming to them. What was then a parallel now is a traced-over line: the "solidarity" with campus Jews actually a thinly veiled form of contempt for any Jew who even slightly deviates from the orthodoxy James Ho wishes to impose upon the Jewish community.

There are, as always, many reasons why a Jewish (or non-Jewish) student might choose to attend to Columbia. Maybe there is a particular program they want to study in, or professor they wish to work with. Maybe they're curious to learn from people whose views are radically different than their own. Maybe they're inspired by the recent election of an Israeli as student body president of one of Columbia's colleges. Maybe they simply don't find the atmosphere as toxic as a bunch of Texas federal judges infer from afar. 

Ot maybe some of them just agree with what one Jewish student said in response to others who urged her to leave Columbia in the face of antisemitism: "It’s very important to stand our ground and show them they can’t force Zionist Jewish students out of their campus."

To any Jewish student who has thought along that line, who has said that they're not going let the risk of bullying or bad actors stop them from getting the best education possible, Judge Ho has a loud and clear message: "Get fucked." He doesn't care about you. He thinks you're absolute scum. In this, he shares a commonality with many of the outsiders who say they're supporting "campus Jews" while raining contempt upon campus Jews. Every Jewish student in America can and should internalize that message loud and clear.

The Submission is the Point

The Venice Biennale is an annual art exhibition designed to showcase the work of artists around the world. Open to exhibitors from any country with diplomatic relations with Italy, the event includes an official Israeli exhibit -- a fact which has unsurprisingly drawn the ire of those demanding a complete cultural boycott of Israel.

This year, though, there was a bit of a twist on that tale: the Israeli representative, Ruth Patir, elected to close her own exhibit until "a cease-fire and hostage release agreement is reached."

Patir -- who has been a regular participant in pro-ceasefire/anti-Bibi protests in Israel -- is not characterizing her decision as endorsing a boycott of Israel, which she emphasized she opposes, and I think we should respect her framing of her own actions. Much like with Natalie Portman, there's no reason to think that Patir does not know or understand the choices she's made.

But I don't really want to focus on the what Patir did, exactly. Rather, I want to take a look at how her decision was received by those who were demanding the removal of the Israeli exhibit. Consistent with the above, it would not be right to say that Patir was joining the boycotters. But it certainly seems like her actions were aligned with what the boycotters seem to want. 

Yet their reaction is, well, I would say it is very interesting and very revealing. What it reveals, in particular, is how the goal of this campaign is very clearly not to create a space where Israelis come out in opposition to the violent practices of their government, or more broadly one that creates space for an imagined future where Israelis and Palestinians relate to one another as equals. They do not see Israelis as potential partners even in an imagined futures. They see Israelis as enemies who must be made to submit. The submission, above all else, is the point.

Here's how they characterize Patir's decision vis-a-vis their campaign:

“The artistic team of the Israeli pavilion has retreated as a direct consequence of widespread pressure and our collective campaign.”

Note the framing. Patir "retreated" in the face of "pressure". She did not, under this telling, voluntarily align with -- even partially -- the effort to end the war in Gaza. She is not an example of someone stepping out from an (under this telling) benighted framework to see the essential need to speak out. She did not even make a volitional choice on her own. She was forced, coerced, compelled to back down. That's the victory -- not "Israeli publicly demands ceasefire", but "Israeli publicly forced to yield."

And having secured the dominant position, are the boycotters magnanimous in their claimed victory? Not at all. Her will may have been bent; but it must be broken. Referring to the fact that the closed exhibit can still be seen through the windows, the boycotters make clear that Patir remains firmly in the camp of an enemy to be crushed:

The Genocide Pavilion has been forced to respond to 24,000 signatories who condemn the Israeli genocide against Palestinians in Gaza but, contrary to the artistic team’s claims, they have not withdrawn, the pavilion has not been closed. 

ANGA reiterates its demand to shut down the pavilion in its entirety.

ANGA does not applaud empty and opportunistic gestures timed for maximum press coverage, and leaving video works on view to the public....

Leave aside the almost absurd richness of complaining about "gestures timed for maximum press coverage" (how is that a bad thing in this context?). The boycotters will not be satisfied until it is clear that Patir has yielded, that her choices are not her own, that what happens to her is something imposed upon her against her will. It is not elevating the call for a ceasefire, it is not even (really) the closure of the exhibit, that was desired here. It is the submission that is the point, and that has not yet adequately been achieved.

This type of politics rings familiar. It called to mind Justice Alito's contradictory desire "to bludgeon the legal community into freely accepting his preeminence." It's not enough for him to prevail on the formal terrain of saying what the law is, the legal community must yield to his superiority. I saw a similar dynamic in some circles of the 2020 Bernie Sanders campaign -- when it looked like he was on the path to victory, some of his backers looked ecstatically at the prospect that the Democratic Party establishment would be forced to "bend the knee". They were less excited about winning the Democratic primary than they were about defeating the Democrats. The submission of the enemy was the point.

This politics, fundamentally, demands not just victory but domination over the enemy. And as a result, it cannot tolerate -- it is infuriated by -- possibilities of agreement or reconciliation from the putative enemy. Often, the substantive issues supposedly being fought over are besides the point. If you wonder why some parts of the left can't seem to take "yes" for an answer, this is why: for Democrats to simply agree to some progressive proposal, without it being seen as somehow wrested from the party over its most primal objections, deprives these persons of the visceral sensation of domination -- it cheats them of their victory. So the framing will never be "I'm happy that they've moved closer to what I want," it can only ever be "they've retreated as a direct response to our pressure and collective campaign." The submission of the enemy was the point.

That's what's happening here in Venice. Some might naively argue that the message of the boycotters to Patir's decision is "counterproductive" -- why are they responding with such hostility and negativity towards an Israeli who is publicly stepping forward to demand a ceasefire? But as I often say, what's counterproductive depends on what you're trying to produce. If what you're trying to produce is more Israelis recognizing the imperative of a ceasefire, a collective change in Israeli outlook to alter the current bloody course, then yes this response might be counterproductive. But if what you're trying to produce is a world in which Israelis are stripped of autonomous choice entirely, are no longer in a position to self-determine at all or even be one agential part of a broader collective movement, then the boycotters' choice of action is entirely productive -- Ruth Patir's choice to close her exhibit, precisely because it was her choice, is just as threatening to that vision and equally must be crushed.

And just so we're clear: there's an Israeli parallel to this horrible political approach. There's a significant channel of right-wing Israeli thought which insists that peace can only occur when Palestinians acknowledge they've been beaten, that they've lost. From that position of submission, Israel can impose a new state of affairs that is vaguely and magnanimously promised to be just. But no deal can be reached under any terms if it is a deal made amongst equals, because the very notion of Palestinian equality is incompatible with them accepting they've been thoroughly defeated. Indeed, the whole idea of a deal that's agreed to by the Palestinians itself becomes automatically suspect -- if they agree, then it was not imposed, and if it was not imposed, then there was not truly submission.

But if your politics demands submission on a national or collective level -- Israelis or Palestinians as a whole forced to yield, forced to accept dominance, it is almost by definition not going to be one that actually is centered around equal respect for all. At most, it will promise to magnanimously dole out justice (more than they deserve) onto the vanquished party once it is well and clear that they are vanquished. But the vanquished will not be seen as candidates for equal participation in the future community. Indeed, any efforts they might make to participate -- even in ways that might superficially suggest they are aligned with one's own vision of what just equality might look like -- will only confirm that they have not fully submitted, and must be crushed further. The submission is the point.

To reiterate, this sort of toxic politics is not unique nor does it fully characterize the desires of either pro-Israel or pro-Palestinian actors. But it does seem like this particular campaign in Venice is one whose politics take this form of demanding complete and total Israeli submission above and to the exclusion of all else. And the results are exactly what one would expect.

Birthday Month Roundup

It's February, which is Black History Month, or as it's better known around some parts, "Why Isn't There a White History Month" Month. It's also my birthday month! To celebrate the august occasion, here's a roundup!

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The Biden administration announces sanctions against named Israelis implicated in radical settler violence. And while it starts with four people, it lays the foundation for much more sweeping action. People say Tom Friedman is the Biden administration's external "whisper", but maybe he's listening to me?

Speaking of Friedman, I'd love it if his proposed "Biden doctrine" became a reality. It might be wishcasting, but then, it might not (see, e.g., the above entry).

A very interesting conversation between Joshua Leifer and some Israeli leftists, including Standing Together's Sally Abed (and credit where it's due on the hat tip). I particularly appreciate Abed completing a circle that often is left unconnected: "Palestinian liberation necessitates Jewish safety, and vice versa. And I say it to both sides. You’re pro-Israel? You need to liberate Palestinians. You’re pro-Palestinian? You need to talk about Jewish safety." As another conversant observed, it's very obvious "that Hamas went for everyone—that they weren’t just trying to kill Jews," and that acknowledgment is part of -- not a distraction from -- their calls for a ceasefire.

And speaking of Standing Together, the BDS movement is currently targeting them for a boycott as a "normalizing" op. For the most part, this smacks of jealousy -- Standing Together has been getting a bunch of good press as the first significant Israeli organization actively calling for a ceasefire in Gaza (while also stressing the importance of returning Israeli hostages), and if there's one thing BDS activists cannot abide, it's the notion that Israelis are valid contributors to the creation of a just future for Israelis and Palestinians. In my endless search for silver linings, however, I will say that probably the fastest way for Standing Together to gain credibility with more centrist-y Israeli and diaspora Jews is to be publicly hated by BDS. Great heroes need great villains, after all.

I'm on the record as supporting the right and utility of judges offering their extra-legal "moral" opinion on issues that come before them, so long as this opinion does not displace the formal legal analysis. Opinions like, say, Justice Stewart's in Griswold, which both characterized Connecticut's anti-contraception law as "uncommonly silly" (a moral judgment) while nonetheless concluding it was constitutionally permitted (a legal judgment) are valuable contributors to public conversation. On that note, Judge Jeffrey White's just-released opinion dismissing on political question grounds a claim that the Biden administration's support for Israel is violating its duties under the Genocide Convention (a ruling which is I think indisputably correct on the law), while also making evident his personal sympathy with the plaintiff's substantive arguments, is -- regardless of whether one agrees with said moral judgment -- exactly how opinions like this should go. Some judges on the Northern District of Texas would do well to take notes. (For what it's worth, Judge White is a George W. Bush appointee and now a senior judge in the Northern District of California).

Oregon Republicans in the state legislature have a tendency of just refusing to show up to work to sabotage our state's legislative agenda. Oregon voters got tired of it and passed a constitutional amendment barring legislators from running for reelection if they miss too many session. Oregon Republicans kept doing it. And now those Oregon Republicans are barred from running for reelection.

What the UAW's New Leadership Means for Campus BDS

The United Auto Workers (UAW), fresh off their huge contract win with the "Big Three" automakers following their strike, have joined a petition calling for a ceasefire in Gaza (the petition also expressly calls for the immediate release of Israeli hostages). They are (I believe) the largest union to sign on to the statement as a full union (as opposed to via individual locals).

I think Spencer Ackerman might be a little ... optimistic (from his vantage) about what this augurs for the UAW going forward (h/t: LGM). Still, at one level, endorsing this petition is very much in line with the UAW's new, more aggressively progressive leadership. And at another level, I hardly expect the UAW to go full BDS or anything like that (as Ackerman notes, a pretty sizeable chunk of the UAW's workers are Trump-voting "economic nationalists", which may or may not put a brake on the union as a whole going too lefty on foreign policy or anything else). Ceasefire + return of the hostages is a far cry from the hyper-left politics many fantasize about the union vanguarding on Israel and Palestine.

But I'm just going to quickly flag a sideline here that's of interest to me. For obscure reasons, the UAW is the union that represents graduate students at the University of California (though strangely enough, people always gave me odd looks when I called myself "an autoworker"). My recollection from my time back at Berkeley is that the UAW national office intervened to put some brakes on BDS activity by the graduate student local when the latter got a little too frisky on the subject. But that was under the old regime. And again, while I don't expect the UAW as a whole to suddenly endorse BDS, it would not surprise me if the new leadership took a more laissez-faire attitude to what their locals did on the question -- including their grad student locals.

Just something to keep in mind.

UPDATE: For example, the Association for Legal Aid Attorneys (a union for public defenders), which is also under the UAW umbrella, just passed a resolution which not only call for an immediate ceasefire but also endorses full BDS and a Palestinian right of return while not mentioning the Israeli hostages at all (indeed, it only gives one very passing passive-voiced mention to "the violent tragedy on October 7, 2023").

Another Case of Self-Inflicted BDS

Some of you are familiar with the "Deadly Exchange" allegation -- an effort by JVP and allied groups to block cross-training programs between Israeli and American police officers on the grounds that such programs really are just avenues for Israel to transmit brutality and oppression to their American counterparts. It's a signature campaign of the BDS movement, albeit one that -- like most BDS activities -- hasn't gotten much traction.

But today comes the news that Itamar Ben-Gvir, the notorious far-right racist who also happens to be Israel's National Security Minister, has taken it upon himself to bar Israeli police from partaking in programs run by the Wexner Foundation for Jewish Leadership. Wexner programs have hosted an array of significant figures in Israel's security establishment, but as is becoming increasingly passe they have come under predictable fire from the Israeli right upon allegations that they are a tool of leftist indoctrination and the ever-shadowy "deep state". So a ban was announced, and yet another screen of isolation falls upon the Israeli public vis-a-vis the outside world (and here, in particular, the Jewish diaspora world).

The Wexner programs are not, to be sure, exactly the sorts of police cross-training programs that "deadly exchange" targets. Nonetheless, this is yet another data point to the proposition that Israeli right is far more successful at actually instantiating a BDS regime than BDS activists ever have been.

Making the Grade Roundup

It's grading season at Lewis & Clark. I have the entire 1L day class this semester across two sections of Con Law I, so it's a bit of a bear. But I'm almost halfway done!

You get a roundup.

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As a professor, I cannot fathom the hubris it takes to see one of your papers rejected from a journal -- the most normal possible experience for an academic -- and decide to parlay it into an entire New York Times column decrying "wokeness".

Florida is set to legalize kidnapping trans children from their families. But don't worry -- they'll only do it if the families love their kids and provide them with healthcare. Family courts in other states better start boning up on asylum law, because the phrase "well-founded fear of persecution" is going to become increasingly germane in cases where there's a possibility of the child being sent to Florida.

Local elections in the UK are seeing the Tories getting absolutely stomped. Over a thousand seats lost by the party, most of which are going to Labour and a healthy chunk of which are going to the LibDems and Greens. It's amazing what Labour can do when it isn't being led by a wildly unpopular antisemitic extremist!

Princeton under fire for hiring prominent BDS activist to a fellowship position. The twist? The activist is a member of the Israeli far-right. But the BDS thing is real -- he supported a divestment campaign against Ben Gurion University in retaliation for its allegedly "anti-Zionist" tilt.

The UAW has new leadership (I had half an eyeball on this, since I technically was a UAW member in my capacity as a UC-Berkeley graduate student instructor), and they're playing hardball against the Biden administration demanding compensation for how new electric vehicles may reduce the number of autoworker jobs.

The Counterrevolution Eats Its Own: Conservatives Turn On Yale Law Conservatives

A few years ago, I had the distinctly bizarre experience of being the target of a particularly devoted internet troll.

The interesting thing about him, though, was that he initially presented himself as an ally. He saw that I was publicly Jewish and was (at the time) a graduate student at UC-Berkeley, and was eager to hear tale of how horrible my life must be, stuck in such an antisemitic cesspool as Berkeley.

I answered honestly: my experience was mixed. There were definite problems with being Jewish at Berkeley, and I had little patience for those who denied it. I had some discomforting encounters, and I had a particularly tense relationship with my own graduate student union. But at the same time, being Jewish at Berkeley also was not nearly as bad as sometimes portrayed in the media. Berkeley is a big place, and every department is different. What happens in the anthropology department didn't necessarily travel to my home in the political science department. There were professors I had read about who had done terribly antisemitic things, but I had never met them (again, big place!). And my professors were generally quite supportive of my work on antisemitism, even when it may have clashed with some presumed progressive shibboleths. On the whole, the portrayal of Berkeley as a sort of warzone for Jews, where one could not reveal one's faith or (God forbid!) interest in Israel and antisemitism without being ripped to pieces by one's peers, was quite far from my experience; even as I could not say either that there was no fire whatsoever behind the smoke. As I said: a mixed experience.

This, I rapidly found out, was the wrong answer. My interlocutor quickly decided that the only way I could be a Jew at Berkeley and not be beaten down, miserable, and ready to flee for my life was if I was an antisemitic sympathizer myself. And so, a troll was born.

I'm reminded of this story via Josh Blackman's defense of Judge James Ho's announcement that, going forward, he will refuse to hire any Yale Law School graduates as clerks. Judge Ho objects to what he sees as Yale's indulgence of a campus protest culture which he believes has created a toxic and unproductive intellectual climate for campus conservatives. His boycott is an effort to induce and/or coerce Yale into adopting a harsher line (one wonders, if the boycott fails, will divestment and sanctions follow?).

The immediate irony, of course, is that the students most directly effected by Judge Ho's announcements are the putative victims of the campus culture he decries -- the beleaguered Yale Law conservatives. After all, the presumably liberal protesters likely were neither applying to nor would have been hired by Judge Ho even before now. And the irony goes deeper. Refusing to evaluate applicants from Yale "as individuals" and instead impute to them the sins of their broader group rests uneasily with the putative meritocratic individualism extolled by Ho and his allies. After all, isn't it precisely that form of rugged individualism that at least allegedly marks off the core of Ho's ideological disagreement with Yale liberals? Perhaps, channeling Ilya Shapiro, we might ask whether, by enacting a preemptive group-based exclusion that limits the pool of candidates to be considered, Judge Ho has ensured that the "lesser" clerks he does hire "will always have an asterisk attached" to their accomplishment (surprising no one, Shapiro has enthusiastically endorsed Ho's decision to depart from strictly individualist meritocratic consideration).

But so it goes. Perhaps these Yale conservatives, though victims, must necessarily be victimized still further for the greater good. Excluding them is a necessary sacrifice for the cause of restoring Yale's good name and academic reputation. There may be bigger values at stake here that meritocratic individualism.

Enter Blackman. Blackman does not view Yale conservatives as victims. Blackman wants them to know that they deserve what's coming to them. They deserve to be excluded, they are getting no more than their just deserts. 

How can this be? And how can it be reconciled with allegedly defending Yale Law conservatives from the predations of their peers?

The answer is simple. Blackman thinks there is one and only one reason why a conservative student would attend Yale in the year 2022: because they're prestige whores. That, to Blackman, is the singular and defining feature of a Yale conservative. And as prestige whores they can and should be punished for their failure of moral character.

That's harsh, but that's the argument. Read for yourself:

Imagine you are a senior in college. You were accepted to Yale Law School, as well as several other top-tier schools. Mazal tov! Now you have a choice. How do you choose between Yale, Harvard, Columbia, Stanford, Chicago, and Virginia? Perhaps there are financial constraints–some schools may give more aid than others. There may also be personal constraints, such as the need to be close to family. More likely than not, neither of these factors would tip in favor of Yale. I doubt that YLS gives substantially more generous financial aid packages, and New Haven is a pain to get to. Instead, I think an applicant would choose Yale over those other schools because of prestige....

Knowing how inhospitable Yale is to conservatives, why would an applicant still pick Yale over other more tolerant places? The answer, again, is prestige. And the desire to obtain that prestige trumps a commitment to values like free speech and academic openness.

How, then, should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the traphouse for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice their principles for prestige. In this regard, the Judge would choose to not hire any conservative YLS graduates because they are unreliable, and maybe even untrustworthy. They have already sold out on their values to go to YLS, and will likely sell out in similar ways in the future. In this view, choosing to go to Yale, with full information, is a failure of moral character.

There are, of course, many reasons why a conservative student might elect to choose Yale over Harvard or other competitors. Perhaps there are particular professors they are eager to work with and learn from. Perhaps they are attracted to Yale's small size. Perhaps they are eager to test their beliefs inside a true bastion of liberalism (this, running in the opposite direction, was part of why liberal me decided to attend the University of Chicago, with its reputation as a conservative citadel). Or perhaps -- and I suspect this is the most unforgivable sin of all -- they do not find Yale's intellectual climate to be quite as inhospitable as it is portrayed in the sensationalist media. Perhaps they, while being conservative, disagree with the conservative orthodoxy on this subject. Perhaps they've come to a different conclusion from the "politically correct" answer, just as I came to my own conclusions about the state of life of being a Jew at Berkeley.

But just as with my assessment of Berkeley, all of these are, of course, the wrong answers. If you are a conservative and you are not fleeing Yale as fast as your legs will take you, the only explanation is you are a morally bankrupt sellout. As Blackman illustrates, there is no tolerance for deviation from the right-wing orthodoxy on this point. If you are a conservative and you do not subscribe to this orthodoxy via your continued attendance at Yale, you are a villain, you are a traitor, you are a RINO, you are an enemy of the movement, and you deserve what is coming to you. And this from the supposed allies of conservatives on campus! How quickly the alleged defenders of intellectual heterodoxy collapse back into singular, ideologically convenient explanations which can brook no departure.

We have seen how quickly alleged concern for "free speech" on campus collapses into calls for censorship, ostracization, and exclusion that dwarfs any of original sins allegedly enacted against campus speech in the first place. This is of a piece with that trend. The counterrevolution eats its own. It always has, and it always will.

The Eighth Circuit's Boycott Ruling Does a Lot More and a Lot Less Than You Think

Yesterday, the Eighth Circuit sitting en banc upheld Arkansas' law prohibiting government contractors from boycotting Israel during the tenure of their contract. The ruling makes for interesting reading, more because of what isn't said than what it is. At one level, the ruling seems to have dramatic implications extending far beyond the case of Israel. And on another level, the ruling (including the solo dissent from Judge Kelly) barely even discusses what I would consider to be many of the critical issues in play.

First thing's first. As many of you know, I clerked on the Eighth Circuit, and it is now as it was then a very conservative court. JTA's bland statement that "The Eighth Circuit is considered to have a conservative makeup" does not do it justice. There is a grand total of one Democratic appointee serving on the court, the inestimable Judge Jane Kelly. While it lacks the outright nihilist streak that has afflicted the Fifth Circuit of late, it is fair to characterize the Eighth Circuit as among the most right-wing courts in the country.

In any event. The Arkansas law requires that state contractors certify they will not "boycott Israel" for the duration of the contract. "Boycott Israel", in turn, is defined to encompass doing any of the following three things “in a discriminatory manner”:

(1) “engaging in refusals to deal”; 

(2) “terminating business activities”; or 

(3) taking “other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories.”

The court essentially divides its analysis in two. One question is whether things like "refusals to deal" or "terminating business activities" should be seen as potentially implicating First Amendment values (that is, are they expressive). The second question is whether the third clause, covering nebulous "other actions", includes activities that are unquestionably First Amendment protected (e.g., writing an editorial supporting BDS -- which presumably would be "intended to limit commercial relations with Israel"), or whether that clause should be read to only cover commercial conduct akin to that covered in the first and second clause.

The first question basically gets to the issue of whether "boycotts" are First Amendment protected. Citing Rumsfeld v. FAIR, the majority concludes they are not, because boycotts are non-expressive conduct that only garners an expressive meaning if accompanied by explanatory speech. The venerable NAACP v. Claiborne Hardware case does not control, the court says, because Claiborne only extends to the speech that accompanies the boycott (e.g., the signs and pickets around a store), not the "action" of the boycott itself.

This is a big ruling. The holding that the "action" of boycotting falls categorically outside First Amendment protections is a major decision, and one that deserves every bit of public scrutiny and inquiry that this decision is getting. In that respect, the Eighth Circuit decision is getting the proper amount of attention and concern.

This makes it all the more strange the fact that the court itself doesn't act as if its conclusion was a big deal. Its holding was delivered in conclusory fashion at scarcely three pages worth of analysis. While the Eighth Circuit does tend to prefer relatively terse opinions over the long, rambling, and often self-indulgent treatises that other circuit courts typically issue, there's little indication that it viewed the "are boycotts speech" question as a substantial issue. 

Likewise, most of the dissenting opinion also does not really question the majority's assumption that boycotts are not speech. Indeed, far more of the debate between the majority and dissent focuses on the second question -- whether or not the Arkansas law, in its third provision, captures activity that is unquestionably First Amendment protected. This is a matter of statutory interpretation -- what is the best way to read the statute under Arkansas law? -- and while that may be an interesting question to some, it is certainly not what is driving the interest over this case. Yet nearly all of Judge Kelly's solo dissent focuses on this second question, while arguably taking for granted the seemingly big sweep the court makes regarding the first question. The result is that the "boycotts are speech" position -- fervently held and believed in by substantial sectors of the American people -- neither gets a substantial challenge (from the majority) nor a substantial defense (from the dissent). This is a very, very odd omission.

Judge Kelly does not spend much, if any time, arguing that the "action" of boycotting is First Amendment protected. Rather, her position is that the law goes beyond regulating non-expressive economic activity and captures purely expressive speech (again, the proverbial pro-BDS editorial or flyer). On my quick read, both majority and dissent have plausible arguments for what the best read of the Arkansas statute is -- but again, that is not the issue anyone actually cares about. A ruling that says "Arkansas' law is unconstitutional because it does not just target the act of boycotting but also pure expression supporting a boycott" should be equally upsetting to critics as "Arkansas' law is constitutional because it only targets the act of boycotting and does not cover pure expression supporting a boycott." Yet that appears to be the locus of the dispute between majority and dissent.

Judge Kelly at most only alludes to the questions that many of us view as central to a case like this. For example, the very end of her dissent briefly suggests that the law does not just cover what the contractor does in the course of fulfilling his or her contract but also "prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship 'on its own time and dime.'" This is something I've long felt was important in distinguishing valid versus invalid state regulations in this field. Is Judge Kelly correct that Arkansas' law does limit the contractor's "own time" behavior? Does that make a difference? Neither majority nor dissent really say.

Likewise, the seemingly key question of whether boycotts are at all "expressive" is given scant attention. The majority cites FAIR to say they are not, because the conduct would not be understood as "expressive" absent additional speech explaining the intended meaning. In FAIR, the question was whether a law school could refuse to allow military recruiters on campus as a means of protesting Don't Ask Don't Tell; the Court said that was not expressive because an observer wouldn't know that the recruiters' non-presence was meant to be a message sent from the law school absent the law school saying "the recruiters are not here because we are sending the message that ...."

There is some purchase to applying FAIR to the case of boycotts. Imagine two people walk into a store. They both see a Hewlett-Packard computer on sale. They both then walk out without buying it. Have they "boycotted" HP? An observer would have no way of knowing absent the customer explaining their behavior as a boycott. After all, there are a myriad of other reasons why one wouldn't buy an HP computer; the average observer would not have any basis for assuming that the non-purchase was for boycott related reasons.

However, the logic of FAIR also cuts in the other direction. In FAIR, the Solomon Amendment required that law schools provide access to military recruiters. It didn't matter why a law school didn't want to provide such access (whether for "expressive" or "non-expressive" reasons); the schools had to provide the access regardless. In this way, the law didn't single out "expressive" objections for singular opprobrium; it treated the expressive and non-expressive objectors exactly the same (i.e., by bulldozing the objection).

Anti-boycott laws, though, are different. The Arkansas law here certainly does not say "every government contractor must buy Israeli goods". There are myriad reasons why a contractor might not purchase from an Israeli vendor, and for the most part they remain free to do so. The only time they are forbidden from doing so is when their action is a boycott. But that means that, unlike FAIR, the hitherto hidden expressive character of their conduct is what distinguishes licit and illicit behavior. Judge Kelly does allude to this in a footnote, pointing out that the ordinary meaning of  "boycott" (undefined in the Arkansas statute) "includes an inherent element of expression" -- it is a refusal to buy that is done as a means of protest or disapproval. Hence, the contractor's action is only illegal if it is expressing a particular (disfavored) message -- something that should spark obvious First Amendment concerns.

We should recognize we're treading on very precarious terrain here. While not defining "boycott" directly, the Arkansas statute frames what is prohibited as "discrimination" against Israel. The risk that First Amendment protections for "boycotts" could generate First Amendment protections for "discrimination" is by no means unfounded, particularly in the era of Masterpiece Cakeshop and First Amendment Lochner-ism. Applying the above analysis to anti-discrimination claims, one can imagine a restaurateur refusing to seat a Black patron, then defending himself by saying "there are all sorts of reasons why I might not seat a patron; yet what makes my conduct illegal is the message I intend to convey -- that I object to Black people." Courts have not (yet) accepted that logic, and there are some bases for making distinctions here. But ask yourself how much you want to prop that door open for Alito and company by going all in on "refusal to engage in business transactions with disfavored groups is your First Amendment right!"

Finally, one other nettlesome issue about the Arkansas law that comes to my mind is the potential viewpoint discrimination problem. Different states have written their anti-BDS laws in different ways, and I've noted before my strong preference for those which do not single out Israel for special treatment but instead craft a broader rule forbidding, e.g., discrimination on basis of nationality or national origin. Arkansas' law is not like that -- it provides enhanced protections for Israel and only Israel. Contractors are apparently free to boycott Palestine, or France, or Germany, or Russia or Ukraine or China or India or Zambia without consequence.

This to me generates a serious viewpoint discrimination problem. As Justice Scalia pointed out in R.A.V. v. City of St. Paul, even where a state has legitimate reasons for restricting certain types of speech -- and we can stipulate for sake of argument that nationality-based discrimination, even where styled as a "boycott", is one such case -- it "has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." If Arkansas thinks this sort of behavior has to be restricted, it has to restrict on both sides of the ledger -- it cannot single out one side of the controversy for special restriction because that side represents the disfavored viewpoint. After all, we might not be aghast if a state required its contractors to certify that they do not discriminate on the basis of race; I think we'd be far more concerned if a state only required them to certify they do not discriminate against White people, while being a-okay with contractors who discriminate against other racial groups.

In any event, the Eighth Circuit decision devotes cursory, if any, attention, to all of these issues. That applies as much to Judge Kelly's dissent as Judge Kobes' majority opinion. Normally, I'm not upset by the Eighth Circuit's preference for shorter and more compact opinions, but here I think they made a very big move without fully thinking it through or potentially even realizing it. This case very well could end up before the Supreme Court, and with the court that we have who knows what hash will be made of both First Amendment and anti-discrimination legal guarantees?

The Sovereign's Grace, Kosher Food, and BDS at UofT

A BDS resolution passed by students at the University of Toronto's Scarborough campus is in the news, primarily because of one interesting wrinkle: it specifically addresses the matter of Kosher food sources. In particular, while the resolution sweepingly targets goods, services, and events which it deems implicated in Israeli apartheid, it offers a narrow carve-out for Kosher food products if "no alternatives are available." The specific policy language is this:

Efforts should be made to source kosher food from organizations that do not normalize Israeli apartheid. However, recognizing the limited availability of this necessity, then exceptions can be made if no alternatives are available.

The resolution was, for what it's worth, sharply criticized by the President of the University.

I do want to focus on this Kosher food issue, though, because it raises some interesting issues. The specter of the student government policing how Jewish students gain access to Jewish food -- seeking to ensure that Jews obeying the dictates of their faith do so in a way that satisfies a political litmus test set by the student union -- understandably rankles many Jews on campus (not the least because one suspects there are sharply different opinions between the student government and the median Jewish student about what it means for a food organization to "normalize Israeli apartheid"). Yet, at one level, this language was almost certainly meant as a conciliatory gesture -- an accommodation meant to alleviate burdens placed on Jewish students by the resolution by treating Kosher food options more leniently and opening the possibility of exemption. There is history here: a few years ago the UofT graduate student union made headlines for refusing to support Kosher food access on campus, on the grounds that the campaign was allegedly incompatible with BDS commitments. This was highly embarrassing for the union, which was forced to issue an apology. I strongly suspect that this provision of the new resolution was meant to avoid, or at least, ameliorate, the prospect of a repeat. I can even imagine the student union being surprised and hurt that their kind-hearted, magnanimous gesture is being thrown back in their face with such revulsion.

And yet. Often times, supporters of BDS lean so hard on the trite truism "Israel and Judaism are not synonymous" that they begin to act almost as if any connections between the two are wholly  idiosyncratic and coincidental. It can end up verging on the comical: "Israel is related to Judaism? Why, I had no idea -- in any event, that interesting factual tidbit, which never occurred to me until just now, certainly has nothing to do with anything I'm doing." But increasingly, it is becoming impossible to overlook the obvious fact that BDS commitments, interpreted expansively, necessitate significant regulation of Jewish political, social, cultural, and religious life, including aggressive and systematic policing of which Jews are okay to talk to or work with. The SunriseDC fiasco was one manifestation of this, the AMP position paper seeking to establish rules regarding when it is okay to collaborate with Jews is another. The myth that "BDS" will or perhaps even could be pursued in such a way that only incidentally and idiosyncratically affected Jews qua Jews (as opposed to "Zionists" or "settlers" or "occupiers") is collapsing.

Even if in the minds of the resolution drafters they were resolutely thinking about Zionists, Zionists, Zionists, and not Jews, Jews, Jews; there was no avoiding the reality that in practice the brunt of the impact would be felt far more in the latter capacity than in the former. Indeed, while virtually none of the entities which support BDS are in a position to impose regulatory burdens on the Israeli state, they absolutely can regulate their local Jews, and so it is the local Jewish community that in practice will predictably be the main venue through which these campaigns actually regulate conduct (I am hardly the first to note that BDS does far more to injure diaspora Jews than it does to harm Israel in any concrete way, let alone motivate Israel to alter its conduct). Who is most likely to have a speaker, or a food product, or a program, that potentially runs afoul of the guidelines (and who is most likely to have their speakers/foods/programs checked and rechecked and placed under the finest microscope to ensure they satisfy the relevant political litmus tests)? It's the local Jewish groups (and not just on matters that directly relate to Israel, either). The effect of these mandates is to place Jewish groups under constant, humiliating surveillance and interrogation to ensure they're not stepping out of line ("Wanna support the miners--what's your position on Zionism?" Or for a campus example, just ask Rachel Beyda). 

Critics sometimes argue that if the Jewish community in North America is that tied up with the Jewish community in Israel, that's an "us" problem. But it is simply not reasonable or feasible to expect the Jewish community writ large to wholly disentangle itself from a place where nearly half the world's Jewish population (and well more than half of the non-European Jewish population) lives and which is central to Jewish religious worship, history, and culture -- particularly given the depth of the "disentanglement" demanded (whereby nearly any connection whatsoever is sufficient to be deemed "complicit" or "implicated"). And again, that sort of insistence on a sweeping and dare I say revolutionary reorganization of Jewish public life is necessarily one that represents a "significant regulation of Jewish political, social, cultural, and religious" affairs. Even if one supports that revolution, and even one supports it so fervently that one is fine with it taking place via external non-Jewish compulsion, at the very least those making this demand cannot plausibly hold to the comforting myth that "we're not talking about Jews". They are, inescapably, and Jews are not doing anything unfair or unreasonable in calling it what it is (a few proponents of the revolution -- some Jewish, some not -- are open in saying "yes, we are targeting the Jews for compulsion because the Jews need and deserve to be compelled", and at the very least I appreciate the honesty).

History provides many examples of edicts placed upon the public whose effects would be to make Jewish public life difficult or potentially impossible. And sometimes, the sovereign in his grace would agree to the possibility of dispensation or exemption for Jews, or at least worthy Jews or sufficiently well-connected Jews, or for the Jews who impressed him and garnered his favor. Much of Jewish political history has been the project of begging for the establishment of these exemptions, begging for them to actually be effectuated, and then begging for them not to be removed or retired when the sovereign's mood changed. And on the one hand, the prospect of these exemptions existing is better than them not being available at all. On the other hand, their presence really hammered home the degree to which the Jews were at the mercy of the sovereign's whim; it illustrated in stark tones who was the law-maker and who was the supplicant subject.

The UofT clause on Kosher food is heir to this tradition. The broad sweep of the resolution risks making Jewish qua Jewish life on campus intolerable (there is a reason why the Nexus definition of antisemitism specifically includes as a species of antisemitism "conditions that discriminate against Jews and impede their ability to participate as equals in political, religious, cultural, economic, or social life."). The law-makers in their beneficence thus offer the possibility of an exemption, if those seeking it come with the right amount of supplication and prove their worthiness by demonstrating to the student union's satisfaction that there is absolutely no "alternative". How gracious! But in its grace, it actually lays bare something previously obscured. In so many words, what the student union is doing is developing an official bureaucratic apparatus whose job specifically is to regulate and oversee Jewish religious life -- with no question regarding who ultimately holds the power and who comes in as a mere petitioner.

Ironically, when there was no exemption at all it would be perhaps easier to cling longer to the myth that the impact on Jews qua Jews is mere idiosyncratic coincidence. The drafters surely would concede that there might be some people who might happen to be inconvenienced by the resolution and it just so may happen that some number of them (who can really say how many) might be Jewish -- but such is life! These things happen! Here, by contrast, the prior history of the Kosher food issue meant that the student union here finally had to admit to itself "yes, thinking about Israel and Zionism means also thinking about Jews" (lack of definitional identity notwithstanding). And in doing so, and in actually being somewhat responsive to that thought, it made visible the actual power dynamics in play that perhaps previously could be denied.