Antisemitism vs. Illegitimate Anti-Israel(i) Discrimination

One thing I noticed come up a few times in the Moshava Philly saga was folks who (a) agreed that the conduct in question represented illegitimate discrimination against Israelis on the basis of nationality but (b) denied it was antisemitic. That is, they agreed it was wrong, just a different wrong from antisemitism.

I confess I haven't put a ton of thought into making this differentiation myself, particularly in cases (as here) where it seems that the "anti-Israeli" discrimination is inextricably bound up with the fact that the targets are Jewish Israelis, specifically (it is dubious that an Israeli Arab food truck would have faced the sort of pushback Moshava Philly experienced). In concept, it is obviously possibly for someone to have a prejudice against Israelis that has absolutely nothing to do with Jewishness -- it is even-handed hatred towards Israelis of all backgrounds and faiths. In practice, there are very few cases of illegitimate anti-Israel biases which are not linked in some way to its Jewishness (even if, on occasion, the link is that the non-Jewish Israelis are tied too closely with the Jewiness of it all).

But my own views notwithstanding, this got me to wondering: What are the stakes of insisting on this distinction between antisemitism and concededly illegitimate anti-Israeli discrimination? And if we do make the distinction what short-form name should we give to illegitimate anti-Israeli discrimination?

On the latter, the lack of a pithy title is inconvenient to say the least. I've heard "Ziophobia" used a few times, but let's just say not by the people who I'd expect to be invested in rigorously policing the difference between antisemitism and anti-Israeli discrimination. But I'm not sure a better term currently exists out there. Suggestions welcome.

On the former, certainly one often hears people emphatically distinguish between "antisemitism" and "legitimate criticism of Israel" -- an important distinction, to be sure. But this is different, since by stipulation the persons I'm talking about concede the "criticism" in question is not legitimate -- and, in particular, is not legitimate in a discriminatory and thereby morally wrongful fashion (there are plenty of cases where a criticism may be technically "wrong" but does not morally wrong anyone -- free speech must allow for some play in the joints where people are free to be mistaken -- but these cases go further and entail circumstances where by concession the bad behavior generates a valid claim of injustice). Given that, what are the consequences of being sure to say "this is wrong, and discriminatory, and should be opposed -- but we shouldn't call it antisemitic"?

My instinct is that it is part of a broader campaign to disassociate discourse about Israel in any form -- even concededly illegitimate forms -- from claims of antisemitism. In that way, it is an adjunct to the "legitimate criticism of Israel is not antisemitism" contention, albeit different in content. Holding fast to this distinction even in the cases of illegitimate criticism helps build the firewall which blocks accusations of antisemitism in the cases of legitimate criticism (or, perhaps more importantly, in the arguable cases).

And a side-effect -- perhaps desired, perhaps not -- is to prevent this form of discriminatory from accessing the particular moral punch of "antisemitism" as a concept. While nominally there's no reason why "antisemitic" discrimination has to be worse than "national origin discrimination against Israelis", practically speaking it represents a retreat -- it's bad, but not antisemitic bad. 

Part of what the disassociation campaign is doing, after all, is trying to split off discourse about Israel from the broader histories and structures of antisemitism that accentuate its dangers -- tying certain discourses into extreme manifestations of violence and oppression. The goal, in some ways, isn't just about protecting "legitimate" criticism but also about degrading the dangers of "illegitimate" criticism. There are all sorts of cases where we might think someone is being kind of extreme or ridiculous or unfair to, I dunno, Canada, and so we might "oppose" it insofar as we generally oppose extreme unfair ridiculousness, but we also don't view it as a four-alarm moral fire. The goal is to do the same thing when faced with unfairness towards Israel or Israelis -- not so much justify as make it mundane, make it small-potatoes, isolate it from any broader pattern or practice of systemic wrongdoing.

Bad Clients Make Shaky Law on National Origin Discrimination

I just saw an interesting new decision out of New York, Bibliotechnical Athenaeum v. American University of Beirut, concluding that "national origin" anti-discrimination protections do not encompass discrimination against a company for its place of incorporation. The short version of the facts: BA is incorporated in Israel with it's principle place of business in New York, it sought to participate in AUB's online job fair, when it told AUB it was an Israeli company, AUB locked it out of the fair, BA sues alleging national origin discrimination.

It is well-established that a corporation can be subjected to "discrimination" under federal law (on account of race, ethnicity, national origin, or other protected characteristics). But that right is derivative of the identities of members of the corporation -- its shareholders, officers, employees, etc. -- and so merely noting that a company has incorporated in Israel does not demonstrate that any of its human beings are of Israeli national origin. For example, sometimes a company incorporates in a given state purely for tax purposes, but none of its officers or employees have any particular connection to the company. BA, for its part, did not plead any facts demonstrating a connection to Israel beyond the fact that it was incorporated there, and so the court concluded that if that was its only link to Israel, discrimination based on that fact is not actually "national origin" discrimination.

Precedents like this make me nervous. I get the example of how weird it would be for a company which incorporates in some random country for tax purposes being imputed as having the "national origin" of that country for discrimination law claims. At the same time, any time one opens a hole like this -- "national origin discrimination is forbidden, but this thing that's one step adjacent to national origin discrimination and could be used to effectively do the same thing as national origin discrimination is a-ok" -- one does serious damage to the vitality of anti-discrimination law. Exempting from "national origin discrimination" "discrimination on basis of place of incorporation or place of business" is an exception that could easily swallow the rule.

What's going on here? The name "Bibliotechnical Athenaeum" rang a bell -- I had heard of litigation they launched a few years ago against the National Lawyers Guild when the latter refused to accept an ad from them listing their (West Bank) address as in "Israel". But I didn't know anything else about who they were, so this time around I did some research.

Or tried to, anyway. It's virtually impossible to find anything about Bibliotechnical Athenaeum aside from coverage of lawsuits like this (which it appears to launch in collaboration with the Lawfare Project). Indeed, my strong suspicion is that they only exist to launch lawsuits like this: go up to a target they suspect does BDS-like activity, say "we're Israeli and we want to participate", then sue the organization when it locks them out. But aside from that, they don't do any substantive work (the above link on the NLG litigation says that "Bibliotechnical is not an operational, commercial business enterprise."). They are a vehicle for launching lawsuits, nothing more.

Judges tend not to look favorably on this sort of concocted litigation. The most noble example one could find is the "testers" sometimes employed by the Fair Housing Authority, to see if apartments are treating Black and White applicants alike. These are usually state employees, though, engaging in a specific enforcement mission. For better or for worse, more recent efforts by people to fly solo in this endeavor are less warmly received. I recall a series of cases from the Eighth Circuit in the past few years where a guy in a wheelchair would drive hours away from his house to random restaurants looking for technical violations of the ADA, take some pictures, and then sue the business. He didn't have any actual interest in dining at the establishments -- he was just looking for the settlement. The Eighth Circuit started rejecting these "drive-by" cases on standing grounds, saying the plaintiff was not actually injured.

I suspect that the judge in this case perceived this litigation as of a similar sort -- an ideological "drive-by" from an entity that did not actually have any real interest in working with AUB or hiring at its job fair. The fact that BA couldn't plead a tangible connection to Israel other than incorporating there (and, one surmises, it incorporated there solely so it could claim to be "Israeli" when launching litigation like this) further underscored the sense that it was engaging in abusive gamesmanship. And so the court took the path of least resistance in getting rid of the claim, which was to leverage the relatively meager connections between BA and Israel (at least as the case was pled) in order to say that it does not qualify as national origin discrimination under the statute.

However -- cases launched by bad clients still establish governing law. When Bibliotechnical (and Lawfare) launch a case like this and lose, they establish precedents that make life harder for entities with actual, non-concocted legal claims. One can easily imagine an actual company that does actual business and is actually harmed by being excluded from a job fair or whatnot suing for national origin discrimination, and the defense pointing to this case and saying "no no -- we're not excluding you because of national origin, we're excluding you because of the nation you're incorporated in, and that's totally fine!"

Ideally, the cases could be distinguished -- there is language in this opinion which suggests things would be different if BA plead connections to Israel that went beyond place-of-incorporation. But there's also language that is more sweeping in suggesting that, so long as the discriminator is targeting the company for its place of incorporation, no national origin discrimination can be found, period. The former, I think, is the better read; but the latter is absolutely available. And so a bad client makes, at best, very shaky law. Way to ruin it, guys.