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.

Omari Hardy is the Future of BDS in the Democratic Party

In the sprawling field vying to replace deceased Democratic Rep. Alcee Hastings, there were no less than five current elected officials running in the Democratic primary that occurred this week. One of these five was State Rep. Omari Hardy.

Initially, all of these candidates avowed positions on Israel that fell roughly in the mainstream of contemporary Democratic politics. About a month before election day, however, Hardy abruptly changed his position on Israel -- announcing his support for the BDS movement (he had only several weeks earlier claimed to be opposed) as well as opposition to the U.S. funding Israel's Iron Dome missile defense system. Upon announcing this change, I suddenly started seeing him a lot more on my Twitter feed, loudly proclaiming about how he wouldn't be intimidated into changing his position and basking in the adoration of a certain wing of commentators who lauded his rare courage and bold commitment to principle, and who presented him as a harbinger of change in Democratic politics. This was not something Hardy did quietly -- his switch to becoming overtly anti-Israel and pro-BDS was a critical part of his closing argument to try and win the race and become the next Democratic Representative from Florida.

On election day, in a sprawling field that contained five current elected officials, Omari Hardy ended up placing sixth. He received less than 6% of the vote -- behind all of his fellow politicos, as well as a wealthy self-funding businesswoman named Sheila Cherfilus-McCormick (the ultimate winner has not yet been called; Cherfilus-McCormick and Broward County Commissioner Dale Holness are currently separated by a whopping twelve votes).

Sixth place finishing, 6% winning Omari Hardy is the future of BDS in the Democratic Party.

If that sounds a bit snarky, I don't -- well, okay, I do mean it to be a little snarky. But believe it or not, the snark is not actually my main thesis.

Omari Hardy was competing in a sprawling, wide open field for an open congressional seat. If you're going to stand out from the pack, you need to do something that clearly marks you as different from the pack. Adopting a generic pro-Israel position in the same vein as all the other candidates wouldn't give anyone a reason to vote for him. Or against him, to be sure. But in politics, the saying "second place is first loser" is especially apt. Announcing support for BDS and pivoting towards intense pronounced hostility to Israel was a calculated risk; it at least offered him a chance to win, even if the more likely result was that he'd just lose by a wider margin (before he announced his pro-BDS turn, Hardy was polling at 10%, so if anything he slipped in performance).

It is a myth that the only route to political power is to take broadly popular positions, even within your own party. That's probably necessary if you want to become the national leader -- as Bernie Sanders found out, if you want to become the Democratic nominee for President, you have to be supported by most Democrats. But becoming the leader is not what everyone wants. You can amass a great deal of power by becoming the standard-bearer for a smaller but intensely passionate faction of the party. And the nice thing about these smaller factions is that they are smaller, and so it's easier to become their "the guy" than it is to become the national "the guy". In particular, in a sprawling primary that's wide open and conducted under first past the post rules, consolidating the small but intense faction is an at least plausible path to victory. It's no accident that Sanders performed best against a divided Democratic field -- a high floor, low ceiling candidate is well-positioned in wide-open, sharply fractured races.

Omari Hardy represents the future of BDS not (just) because he shows that BDS remains whatever the opposite of a selling point is for most Democrats. That is certainly an important lesson to learn. But just as importantly, he's the future because he perceived -- and I think not incorrectly -- that endorsing BDS is a way of standing out from other Democrats and potentially consolidating the backing of a small but intense wing of the progressive movement, some of whom border on being single-issue (anti-)Israel voters (the seething hatred many on the left have for Ritchie Torres, who is on the left edge of the party on virtually every issue but Israel, is one manifestation of this. The comical attempt by some lefty activists to expel Jamaal Bowman from the Democratic Socialist of America because he didn't vote against Iron Dome is another). 

A sprawling primary where a small cadre of passionate supporters can plausibly carry a candidate to victory is a good place to try and leverage becoming the consensus choice of a small wing of Democrats who feel very intensely about one issue. An even better place to run this play may be after one has already won the primary to hold a safe seat and one can feel confident in one's ability to hold onto it indefinitely (Ilhan Omar, too, flipped on BDS only after she had secured a victory in a Democratic primary), when a politician's eye can drift away from local challengers and towards the national spotlight. To be clear, this path is not the route to become President, it's not even the route to become leader of the Democratic congressional caucus (neither one of these is in Ilhan Omar's future). But it is a route to securing a not-insubstantial amount of power. And that's going to be very tempting to a certain type of ambitious politico.

I'm not accusing Hardy of being purely opportunistic in his sudden embrace of BDS. I don't think he's lying; I believe he believes BDS is a reasonable and non-pernicious campaign. But I also don't think it's wrong to look a little archly at his rapid about-face, just a month before election day -- one that was loudly trumpeted and promoted by his campaign, one that he quickly tried to make a centerpiece of his campaign and his boundless courage -- and think that political calculations were playing a rather sizeable role here. Most likely, I suspect that Hardy didn't really care that much about BDS or Israel at the start of this race, and doesn't care too much about it now. He took the anti-BDS position at the start of the race not because he had strong feelings against it but because it was the easiest, default option and didn't seem patently offensive, and he swapped positions at the end of the race not because he developed strong feelings for it but because it was a plausible Hail Mary play that also didn't patently offend him. And if this sounds very cynical, I suspect this is how most politicians deal with most issues that are not especially central to their identity -- it's not that they don't believe what they're saying, but for the 90% of issues that aren't "their" issues, there's plenty of room for beliefs to accommodate a more bloodless calculation of political interest. Hardy is no different from any other politico save for the particular lane his bloodless calculation of political interest ended up placing him in.

And so, despite the fact that the result for Hardy was finishing in sixth place with less than 6% of the vote, plays like Hardy's are something I think we'll be seeing a lot more of. Most Democrats will continue to oppose BDS, and oppose extreme anti-Israel policies (while -- hopefully -- become more open to practical and sorely needed policy shifts designed to actually promote Palestinian rights, such as backing the Two State Solution Act). But more and more frequently, we'll see cases like Omari Hardy: candidates who are laboring at the back of a crowded field and are looking to stand out and get a burst of cash and volunteers, or safe seat backbenchers yearning to garner a national profile and internet likes, will view BDS as a promising avenue for rising for obscurity. It won't win them national or competitive races; it often won't even succeed in fragmented contests amongst Democrats. But if you're going to lose the race anyway, it's a cost-free gamble. And if you don't care that much about the issue to begin with, plenty of people will be happy to roll those dice.

Academic BDS Comes to China

The Guardian has an interesting article about a scientific journal editor, David Curtis, who stepped down from his post after his attempt to implement a boycott of Chinese academics was rebuffed by his publishers. The direct precipitation of his resignation appears to be a mix of two things: first, that he was prevented from publishing an article he co-authored raising the specter of a China boycott, and second, that he had of his own accord begun implementing a policy of rejecting all submissions by Chinese academics due to "the complicity of the Chinese medical and scientific establishment in human rights abuses against the Uyghurs." (The latter decision was denounced by the journal higher-ups as a violation of policies forbidding national origin discrimination).

It is not clear whether the figures involved in the call to boycott Chinese academics are involved in the BDS campaign against Israel. I can imagine them being sympathetic; I can also imagine them being people who thought BDS against Israel was absurd precisely because we should be starting with more serious violators like China and decided to put their money where their mouth was (a quick google search didn't reveal any particular links between Curtis and BDS, whether favorable or critical).

I have been banging the drum about the likelihood that BDS (or BDS-style tactics) will at some point stop "singling out" Israel and make itself apparent as part of activists' toolkits addressing other countries and controversies. And indeed, this particular iteration seems highly reminiscent of the earliest days of anti-Israel BDS (not only because it is originating in the UK). The flat ban on submissions by Chinese academics is identical to how academic BDS began -- the earliest significant academic BDS "move" was a decision by a British journal editor to demand the resignation of Israeli colleagues from her editorial board because "I can no longer live with the idea of cooperating with Israelis as such." Nowadays the BDS movement has made gestures at moving away from pure nationality-based discrimination in favor of allegedly targeting only "institutions, not individuals"; I suspect if the China BDS movement gains legs it will begin making a similar pivot (though, as with the Israel case, I also suspect that the new standard will often be honored primarily in the breach).

But what does the potential emergence of a China academic BDS movement mean for the future of the Israel academic BDS campaign? The core personnel are going to be different -- partially because different people have different interests, partially because the Israel BDS movement has more than its share of tankies who think the entire Uighur issue is western imperialist claptrap. Nonetheless, there will likely be some overlap, and the fact that BDS is being promoted in other cases will do more to legitimize it as a legitimate option even as there may be disagreements about whether a BDS style campaign is properly applied to this or that case. So in that sense, any successful mainstreaming of the China BDS campaign will likely help bolster the Israel one even if the principal actors are different people.

On the other hand, the development of "BDS" in the China context, precisely because it offers a comparator case and can falsify the "singling out" hypothesis, also is likely to generate new norms which will serve to modulate and regulate the Israel case as well. While Curtis' proposal is drastic -- no submissions from any Chinese academics, period -- it is supremely unlikely, given China's integration into global academia and knowledge-production, that a BDS movement of that form will gain any traction. Far more plausible is the implementation of considerably more narrow and targeted measures -- particular institutions or projects that are inextricably bound up in human rights abuses that directly (and not just by association) taint the specific academic work emanating therefrom. And particular will likely actually be particular -- it will not be tenable to use sweeping notions of complicity or culpability to drag in every single Chinese university or institution (the main mechanic by which "institutions, not individuals" reverts back to "individuals").

This is part of what I've been saying when I suggest that social movements, BDS including, "moderate as they mainstream." The more BDS becomes a general tool of social activism rather than an Israel-only one-off, the more it will adjust itself to adopt standards that actually can be plausibly generalized to a range of cases, and while extirpation of all Israelis from the global community is at least a conceivable social goal, extirpation of all Chinese nationals (or all nationals of all countries whose governments are implicated in significant human rights abuses) is not.

Put differently, to the extent people start thinking seriously about applying "BDS" to the China case in a manner that is plausible and scalable, the equilibrium that will be set will be one that likely will not countenance flat bars on academic participations by persons of a particular nationality, nor "institutional" proscriptions that amount to doing the same thing, but may accept narrowly-tailored measures targeted at specific wrongdoers. And -- insofar as China would be used as a comparator case to justify measures in other states as well (namely, Israel) -- there is a decent chance that these norms will translate over to the Israeli case as well. It won't happen without a fight, and you can be sure that the old-guard will continue to insist on the more fundamentalist version. But I do think that's the most likely trajectory.

The Coda to the Israeli-American Food Truck Fiasco

(Previous posts here and here)

Eat Up the Borders, which ignited a firestorm of criticism after uninviting an Israeli-American immigrant food truck from its festival, has issued an apology.

It is, I think, a good apology. It provides relevant context, while making absolutely clear that they own their mistake and affirming their absolute intention to keep working with Moshava Philly in the future. While the apology is primarily -- an appropriately -- directed at Moshava and the Jewish community, it also at one point extends its apology to "the Jewish and Palestinian communities." I've seen some people push on this -- why the apology to Palestinians? -- but I don't have any particular problem. Eat Up the Borders made its own mistake, and yet Palestinians are having it imputed to them. To the extent Eat Up the Borders dragged them into a mess of their own creation, it's fine to apologize for that.

More broadly: apologies are important, and we should be encouraging Eat Up the Borders for doing so here. It's hard to apologize, and harder still when you know that many won't accept the apology and many others will be furious that one deigned to apologize at all. Sometimes it's paradoxically more comfortable sitting with obvious, outright antisemitism -- there is a weird sense of relief in finding a situation where everyone knows this was not okay, and there is the temptation to continue sitting in that comfortable position of righteous anger than to transition to the far more precarious, vulnerable, and uncertain posture of trying to grow forward. 

This is a temptation that must be resisted. If we want people to apologize and work to do better, one needs to respond favorably when they earnestly try to do so. Positive reinforcement is good! And this, I'd note, has been the consistent tone taken by Moshava Philly, which has been emphatic that it likes Eat Up the Borders, thinks they do good work, wants to continue working with them, and thinks this was a mistake they'll learn and grow from. If one refuses to allow for that possibility, one cannot hold oneself out as an ally to Moshava Philly.

In other thoughts: It was notable that, once this story broke into the mainstream, one spotted very few defenders of the decision to expel Moshava Philly. Obviously, they exist and one could find them if one looked, but the usual suspects remained pretty quiet and the slightly-less usual suspects tended to use this as a case of "here's an example of where a 'boycott' goes too far." So that's notable. 

Those who did come out in defense of the expulsion -- JVP's Swarthmore branch was probably the highest-profile case I saw -- really did a sterling job of demonstrating how BDS, at least for that camp of fundamentalist, is about objecting to Israelis existing in any form or capacity. Eater Philadelphia got a quote -- one of the first I've seen -- from one of the persons who initially put pressure on the festival to cut ties with Moshava Philly based on the view that its food was "appropriated Palestinian food that they’re marketing as Israeli food" and therefore "contributes to the marginalization and erasure of Palestinian culture" (as Ron Kampeas notes, when it comes to the food in question, this is both historically illiterate and erasive of Middle Eastern Jewish history).

But the flailing effort to find something -- anything -- that supposedly rendeered their targeting of Moshava Philly something more than just naked national origin discrimination made them look more ridiculous than righteous. A popular move was to claim that "moshava" means "settlement" (it means something like "small village", which, yes, most thesauruses would say is a synonym for "settlement", but not in the sense referred to here). Others poured over social media to find basic statements of pride in being Israeli or love of their country to present as mortal sins (Manny's in San Francisco endured a similar strategy). One "collective", for example, made the shocking discovery that a product that Moshava Philly sold had its origin in a farm which the proprietor began working on "illegally" in 1993 (the intended implication being that it was from an illegal West Bank settlement). Even that six-degrees-of-Kevin-Bacon tag fell apart when it was discovered that the farm in question was in pre-48 Israel (who knew that BDSers had so much respect for Israeli property law!), at which point they showed their whole self by declaring flatly that "It’s all a settlement: Tel Aviv is a settlement just like Havot Ma’on, or Kiryat Arba." So yeah, that's who we're dealing with.

Ultimately, this story ends on an optimistic note. The festival apologized. The promise to keep working with Moshava Philly was secured, and it appears neither grudging nor coerced. Moshava Philly has been very vocal about how humbled they've been from the outpouring of support they've received. Few, if any, mainstream actors did anything but say "this was wrong". Those are all good things. We can be happy about those good things, and work to build on them -- and it looks like both Moshava Philly and Eat Up the Borders are committed to doing so.

What the Israeli-American Food Truck Fiasco Tells Us About (Some) BDSers

Briefly following up on the saga of the Israel-American food truck, and in particular JVP Swarthmore's position that expelling the truck from an immigrant food festival is a righteous example of BDS in action, I want to return to something I wrote a few years back about none other than Natalie Portman. In 2018, Portman refuses to travel to accept her award of the Genesis Prize in Israel because doing so would involve sharing a platform with Bibi Netanyahu. At the same time, she emphatically rejected that she was endorsing BDS, and affirmed her commitment to continue engaging with other Israeli voices and institutions.

Many pro-BDS persons nonetheless insisted that Portman -- her own avowals notwithstanding -- was in fact engaging in BDS. So (part of) my column was trying to explain why it mattered that Portman was so insistent that she was not doing so. Here's what I wrote:

It is one thing to say that a particular politician or a specific company stands beyond the pale, such that they cannot be productively engaged with until they alter their behavior. But when it is every politician, every company, every university, every artist, every film - at that point the message communicated becomes something different. 

The (well, a) problem with BDS, as a movement, is not that there is something intrinsically objectionable to not wanting to share a stage with Bibi or not purchasing a Sodastream. 

The problem is that BDS does not just cover Bibi or Sodastream. It covers the Anti-Defamation League and Jerusalem Open House and A Wider Bridge. It covers Moshe Halbertal and David Grossman and Ami Ayalon. It covers Tel Aviv University and it covers random middle schoolers who have questions about horses. 

It covers every Israeli company and every company that does business in Israel; it covers every Israeli movie, every Israeli actor, and every Israeli theater production.

(I didn't include perhaps the most incredible example I've seen in this ilk: complaints that a newspaper quiz that had a question about Israel's national bird was in breach of the BDS: "This includes any reference to their wildlife." But I digress.) 

Time and again BDS has shown itself to be a train that has no brakes. Vagaries about targeting "institutions, not individuals" - often only honored in the breach regardless - serve as no limit when any every institution is found guilty and any affiliation is implicating. 

Crossed with cousins like "anti-normalization" and "pinkwashing," BDS becomes a systemic and inescapable net ensnaring and excluding Israelis indiscriminately. Too often, it stretches even further and simply serves to exclude Jews-qua-Jews - anywhere, everywhere, in toto.

What's striking about the Moshava Philly fiasco is how it gives lie to so many of the purported limiting constructions of BDS that are meant to explain how it isn't simple antisemitism, xenophobia, or national origin discrimination.

• Some argue that BDS doesn't target Israelis-qua-Israelis, only organizations which have specific ties to problematic Israeli policies and are personally implicated in wrongdoing. But nobody is arguing that Moshava Philly has such ties -- its sin is simply that it serves the food of its own proprietors.

• Some argue that BDS is justified against all Israeli firms insofar as, by being in Israel, they are inherently acting as occupiers of Palestinian land. But Moshava Philly is, as the name suggests, in Philadelphia -- in turns out that even when Israeli Jews come to the, ahem, "real promised land" the taint still follows. It is its Israeli origin, not where it sits or does business in, that generates the contagion.

• Some argue that BDS doesn't object to Jewish presence in modern-day Israel per se, only that which is attributable to the "Zionist invasion" (see PLO charter Art. 6). Yet the term "Moshava" refers to villages the earliest of which were established prior to the First Aliyah by a mix of immigrants and persons who were already living in the Old Yishuv. This makes it all the more striking to witness the word "Moshava", literally "village",  being re-translated to mean "settlement" or "colony" in order to present Moshava Philly as some avatar of colonization -- an ordinary word made sinister by judicious leveraging of its exotic foreignness (we've seen this before). It turns out that when push comes to shove, the projects of pre-Zionist Jews in Eretz Yisrael are going to be portrayed as foreign, colonial impositions too -- because it's Jewish existence, not policy or practice, that ultimately is sufficient to earn the label of invasion.

• Some argue that "Israel" doesn't have a right to exist because only people, not states, have a right to exist. But here we see the view that the entire existence of an Israeli peoplehood -- even purely as culture -- is viewed as corrupt, tainted thievery, hence why the mere existence of "Israeli" food is presented as an affront. The problem, it turns out, is Israelis existing -- anywhere, anyhow, in any context. (I think even JDA would consider this antisemitic, though as always the question is whether any of its backers will actually stand up and apply the document to the case).

One thing I've said before about BDS is that, like other social movements, it will moderate as it mainstreams. People who endorse some forms of boycotts, divestments, or sanctions are a diverse group, and not all of them have any interest in these fundamentalist applications. It is wrong to say that anyone who says they won't buy wine from a West Bank settlement also necessarily endorses barring Israeli immigrant food trucks.

But we should be clear that there is a contingent -- and not a trivial one either -- that does intend to ride the train all the way to the end. For them, the train really has no brakes. And for them, their vision of BDS really is one that is incompatible with Jewish equality -- whether in Israel or abroad. We should be clear-eyed about who they are, and what they represent.

Paper By Ariel Univ. Scholar Rejected Over Whether Ariel is in Israel

This is a very interesting story that pulls me in several different directions.

The thrust of it is as follows: an academic at Ariel University, an Israeli institution in the West Bank settlement of Ariel, had a paper set to be published in the chemistry journal Molecules. As part of the publication, she needed to provide an address for correspondence, and she listed Ariel as being in Israel. The journal asked her to delete "Israel", the author refused, and the journal pulled the paper.

So a few things:

• Obviously, there's something off-putting about papers on chemistry being (not) published not on the basis of chemistry, but based on geopolitical debates over the proper assignment of sovereign authority in the West Bank.
• This does not appear to be a "boycott" of Ariel University or its scholars. The journal was willing to publish the article by the professor, with the notation that she taught at Ariel University, so long as it didn't claim that Ariel was in Israel.
• The article indicates that some activists wanted the journal to go further and require that the address be formatted as "Ariel University, illegal Israeli settlement of Ariel, Occupied Palestinian Territory." But it doesn't look like the journal was going to demand that formulation.
• Ariel simply isn't in Israel. That isn't me wearing my anti-occupation hat -- Israel has not annexed Ariel (unlike, say, East Jerusalem). So to some extent, the journal is simply enforcing a rule that statements in its journal have to be accurate. It's undoubtedly rare that this comes up with respect to correspondence addresses -- but this is one of those rare cases. The same rule should apply if a far-left writer in Israel proper tried to render her address as "Acre, Palestine". It would simply be inaccurate.
• In some ways, the journal's proposal was similar to the long-standing American rule that persons born in Jerusalem have "Jerusalem" (rather than "Jerusalem, Israel") listed as their birthplace on their passport. This was famously litigated in the Zivotofsky case. One could argue it's more contentious there because Israel has annexed East Jerusalem (and has relatively uncontested sovereign jurisdiction over West Jerusalem). Ultimately, I'm not convinced that this solution was unreasonable under the circumstances.
• How does one mail a letter to Ariel University? Must one put "Israel" in the address for the letter to arrive? Can one put "West Bank" or "Palestine" or leave that portion of the address blank?
• I wonder if there was any explicit or implicit pressure on the author from her university (or the Israeli government) to refuse to accept the deletion of "Israel" from the address. Certainly, the Israeli government has been more than willing to punish academics whom it sees as insufficiently resistant to, or cooperative with, BDS.