On May 28, 2015, the Washington State Supreme Court struck down the state’s anti-SLAPP law, following an appeal filed by five individuals who are suing the Olympia Food Co-op for boycotting Israeli products.
The Israeli advocacy organization StandWithUs immediately hailed the decision as a “BDS Defeat,” “a major setback to the anti-Israel boycott, divestment, sanctions (BDS) campaign,” and an “overwhelming victory.” In reality the Supreme Court did not rule on the merits of the plaintiffs’ case, much less on BDS. Instead it determined that the state law against SLAPP suits—suits designed to deter free speech by imposing a legal and financial burden on the defendant—violated the constitutional right to a trial by jury.
As the anti-BDS suit was originally dismissed in Thurston County Superior Court on grounds that it had violated the state anti-SLAPP law—and as the law has been struck down—the case will now resume in that court.
StandWithUs admits to involvement in the lawsuit
Before the lawsuit was even filed in 2011, internal StandWithUs documents revealed that the organization was behind the suit—even coordinating with the Israeli Ministry of Foreign Affairs. On March 11, 2011, six months before the civil complaint was filed, StandWithUs hosted a secret meeting in Olympia, Washington, with the future plaintiffs and with San Francisco–based Israeli Consul General Akiva Tor. There, plaintiffs’ attorney Avi Lipman gave what StandWithUs meeting notes described as “presentation of legal case.” Subsequent notes referred to the Olympia Food Co-op lawsuit as a StandWithUs “project.”
At times since then, StandWithUs has publicly denied involvement in the suit, claiming that it had done no more than recommend a StandWithUs-affiliated attorney to the plaintiffs. The case had initially incurred few legal costs, and as StandWithUs-affiliated attorney Rob Sulkin has admitted to working pro bono, StandWithUs could reasonably deny financial sponsorship of the suit.
However, after losing the case first in Superior Court and later in the State Court of Appeals, the plaintiffs incurred $230,000 in legal fees. Having now received a positive decision in the State Supreme Court, StandWithUs has changed its tune and is openly taking credit for the case, admitting to posting a bond of over $400,000 so that the case could be heard in the Supreme Court:
When the trial court ruled against the plaintiffs, it assessed $232,000 in fees and penalties, an amount that would have been an overwhelming burden to the plaintiffs.
To appeal the case, the plaintiffs would have had to post a bond for more than that amount – over $400,000 – extremely difficult for the five middle class Olympia plaintiffs.
StandWithUs saw the situation the plaintiffs were in – long-time co-op members, supporters of Israel – who now faced devastating financial penalties simply because they stood up for fair treatment of Israel and demanded that their co-op board follow its own rules and bylaws.
StandWithUs stepped in and borrowed the money to post the bond for the full amount so that the plaintiffs could challenge the lower court decisions.
Yet the claim that StandWithUs’s involvement is incidental—in this case, investing nearly half a million dollars out of sympathy for “five middle class Olympia plaintiffs”—is implausible. One would have to accept that StandWithUs also incidentally organized a “legal presentation” between the plaintiffs and the Israeli consul general six months before the suit, that the plaintiffs incidentally appeared in a StandWithUs anti-BDS propaganda video directed at food cooperatives around the same time, that StandWithUs incidentally referred to the lawsuit as a StandWithUs “project” in its internal documents, that StandWithUs incidentally provided the lead attorney for the plaintiffs, and that an attorney filing an amicus curiae in support of the plaintiffs in the Court of Appeals is also incidentally affiliated with StandWithUs.
Plaintiffs’ claims about process, not Palestine, are undermined
Throughout the duration of the lawsuit, the plaintiffs have claimed that their case is not motivated by Middle Eastern politics, which would have otherwise affirmed that the lawsuit was targeting constitutionally protected participation in an “issue of public concern.” Instead the plaintiffs situate their complaint in the claim that the Co-op board of directors had violated its own policies, independent of a position on BDS.
In other words, the lawsuit is ostensibly a complaint over internal Co-op process, not BDS. If the Israel boycott had been instituted by other means, the plaintiffs suggest, there would be no cause for complaint. Yet the claims by the plaintiffs’ own financial sponsors undermine this, with StandWithUs falsely declaring a victory over BDS with the Supreme Court ruling.
In 2011 the food co-op in Olympia, Washington, voted to boycott. Some members, unaware that the issue had been brought to a vote, demanded a new vote in a bid to override the old one.
When that wasn’t allowed, they launched a lawsuit against the co-op’s board for violating its bylaws.
Yet this is completely false. The board had in fact asked the plaintiffs if they wanted a member vote on the boycott, and the plaintiffs repeatedly said no. As the plaintiffs’ attorney informed the Co-op prior to filing the complaint:
You propose as an alternative to litigation that our clients avail themselves of the “member-initiated ballot process.” This suggestion is not well taken.
How did Nussbaum Cohen get the point of the lawsuit so wrong? It’s possibly because the only individual she acknowledged interviewing about the Olympia case was Robert Jacobs, the Pacific Northwest director of StandWithUs.
Despite rejection of anti-SLAPP law, lawsuit remains weak
Contrary to StandWithUs’s claims of a “BDS Defeat at Washington Supreme Court,” the court never actually considered BDS in its ruling.
The plaintiffs appealed on several grounds, such as that the Co-op’s boycott of Israeli products was not protected speech and that the boycott was unlawfully enacted. To suggest that boycotts are not legally protected speech, the plaintiffs’ attorneys even made a reference to the “checkered history” of boycotts, such as the “anti-integration boycotts in the South during the 1960s,” while conspicuously omitting the more well-known boycotts from that time period.
Yet by the time the case was finally heard in the State Supreme Court, the issue was not about BDS or even Co-op process, but rather about the constitutionality of the state anti-SLAPP law, with several outside parties filing amici curiae over the issue.
The American Civil Liberties Union, though usually supportive of anti-SLAPP legislation, filed a brief against the Washington State law on the basis that it was “one of the most if not the most restrictive provision on the books.” At the same time, the ACLU noted that its “amicus takes no position on the boycott issue.”
On the other side, the Reporters Committee for Freedom of the Press—in conjunction with twenty-nine other press organizations—filed an amicus in support of the Washington law on the basis that the law was “constitutionally sound” and “consistent with a long-standing nationwide trend of protecting speakers from frivolous suits meant to silence their speech.”
The Supreme Court eventually made its ruling solely on the issue of the state anti-SLAPP law, ignoring all the plaintiffs’ arguments pertaining to BDS and Co-op policies. In doing so, the Supreme Court did not challenge the claims of the previous four judges who affirmed that the plaintiffs failed “to establish by clear and convincing evidence a probability of prevailing on the claim.”
In other words, every single judge who has considered the merits of the anti-BDS lawsuit has found the case itself to be weak. But the Supreme Court ruled that the state’s anti-SLAPP law set the bar too high, and that the ultimate consideration of the merits of the case should be left to a jury.
Thus what the anti-BDS forces are hailing as a “big win” is not a legal determination against the right to boycott, but rather the opportunity for the five StandWithUs-sponsored plaintiffs in the Olympia Food Co-op lawsuit to have their case heard before a jury of their peers—before losing again.
Further information on the Olympia Food Co-op lawsuit can also be found in my previous articles:
Attorney Ken White of the Popehat blog offers a concise analysis of the Washington State Supreme Court ruling on the anti-SLAPP law.
Documents filed in the Olympia Food Co-op anti-BDS lawsuit can be found at the Center for Constitutional Rights.