The Lawfare Project has just published a legal analysis paper it believes will “demolish the claims of Palestine Legal and the Center for Constitutional Rights” that the Boycott, Divestment, and Sanctions (BDS) movement aimed against Israel is impervious to legal threat. The New York based non-profit legal organization is dedicated to fighting anti-Israel and anti-Semitic “lawfare,” which it defines as “the use of the law as a weapon of war,” and “the abuse of Western laws and judicial systems to achieve strategic military or political ends” against Israel.

The paper, entitled “The Illegality of BDS in New York State: Response to Frivolous Arguments of Palestine Legal and the Center for Constitutional Rights,” observes that “BDS advocates claim that any boycott of Israel, Israeli goods, or Israeli persons is protected by the First Amendment, and that the application of state anti-discrimination laws to prohibit or penalize BDS activities is consequently unconstitutional.” However, the paper demonstrates the “fatal flaws” of their arguments, and warns business contemplating the implementation of BDS practices that they must understand these flaws, “lest they find themselves subject to potentially crushing legal liability.”

The paper first analyzes false claim that BDS is entirely protected under the Supreme Court’s landmark 1982 decision in NAACP v. Claiborne Hardware Co. It points out that while that decision foreclosed certain boycotters from facing liability under a theory of tortious and malicious interference with business, it did not foreclose their liability under, for example, New York State law, which “expressly prohibits boycott activity targeting persons and entities because of their national origin.” It also notes that Claiborne only declared it unconstitutional for government to completely prohibit speech and advocacy promoting boycotts; the decision left it perfectly constitutional for a government to forbid actual boycotts. Thus, the paper emphasizes that New York’s anti-boycott statute is perfectly constitutional under Claiborne, as it is “limited to business activity [actual boycotts] and, notably, does not forbid advocacy, picketing, or other forms of speech in furtherance of boycotting.” Later, the paper also notes that according to the Second Circuit’s opinion in Jews for Jesus, Inc., a suit brought under New York’s anti-boycott statutes will withstand a First Amendment challenge, as the statute “easily satisfy [the] criteria” necessary for states to “constitutionally regulate conduct even if such regulation entails an incidental limitation on speech” and, further, “[t]hese statutes are plainly aimed at conduct, i.e., discrimination, not speech.” (more…)