Objectives of Zachor Legal Institute
One of the most frequently asked questions about the activities of the anti-Israel “Boycott, Divestment and Sanctions” (BDS) movement is: Is that legal?
The simple answer is, in many cases, NO.
So why is BDS still active in the United States?
The answer to this question is more nuanced, but it comes down to two reasons. First, there is widespread misinformation about the legal status of BDS. Second, there is not yet an organized effort to stop the spread of illegal BDS activity.
Zachor Legal Institute, a legal think tank and advocacy organization, is taking the lead in the legal battle against BDS.
Zachor seeks to combat the detrimental financial impact and discriminatory effects of BDS activity through two distinct strategies:
The initial phase of Zachor’s strategy has been to promote legal action that defends against concerted BDS activity in the United States. Zachor’s first step in defending against BDS was to expose the misleading legal analysis published by BDS supporters that, among other things, claimed that BDS activity was not subject to existing federal anti-boycott laws that specifically prohibit anti-Israel boycott activity. In this vein, Zachor’s legal scholarship has been cited in numerous legal initiatives against BDS boycotts, as well as by the Supreme Court of Israel in upholding Israel’s domestic anti-boycott law. A number of advocacy groups, including The Lawfare Project, The Louis D. Brandeis Center for Human Rights under Law, Scholars for Peace in the Middle East and StandWithUs, have relied upon Zachor’s scholarship in fighting BDS’ commercial and academic boycotts of Israel and Jews.
In particular, Zachor played a role in fighting back against BDS activity by union members at the Port of Oakland and helped to prevent the City of Berkeley from adopting pro-BDS measures. In addition, Zachor has assisted in the legal analysis that supported the adoption of anti-discrimination legislation in several states, including, most recently, the State of California’s Assembly Bill 2844, signed into law by Governor Brown in September 2016.
Zachor believes that in order for any strategy to be effective, there must be a strong offense to complement a strong defense. As such, it is time to put into motion the more aggressive offensive measures detailed in Zachor’s legal scholarship.
It is not enough to simply react to the spread of BDS activity. What must be done is to use existing laws, and promote new legislation, to obtain redress against the leadership and funders of the discriminatory BDS movement. This is important not only to serve as a bulwark against the spread of BDS; it will protect American commercial markets from the harmful effects of foreign boycotts and, at the same time, prevent the spread of a hateful campaign of discrimination against Americans of Jewish and Israeli descent.
This muscular new approach in the battle against the harmful effects of BDS, while revolutionary in its immediate context, is based on tried and effective methods that have been used to successfully target and dismantle organized crime syndicates and terrorist networks.
The stated goal of BDS is to disrupt commercial markets to inflict harm on an important ally of the United States and to spread discrimination through financial and academic venues. These goals are in direct conflict with American law and policy. The application of laws that protect against discrimination and economic disruption is a natural response to BDS activity. Since Zachor, and others, have demonstrated that there are ties between BDS supporters and supporters of terrorist entities, individuals with ties to such entities that are leading the BDS campaign in the United States should not enjoy or expect impunity as others spread their illegal aims. Zachor’s offensive legal campaign is designed to put an end to illegal BDS activity in the United States.
In the course of providing legal assistance in support of California’s recently enacted anti-discrimination legislation, it became clear to Zachor that while the pro-BDS actors had established a support community to spread legal claims that had no rational basis, there was very little organized opposition to the pro-BDS legal agitprop.
As a result, the California Assembly’s initial legal analysis of the anti-discrimination legislation was fatally flawed in concluding that the First Amendment of the United States Constitution provided an absolute protection for any and all boycott activity. This legally unsupportable conclusion was arrived at due to the influence of pro-BDS activists who pushed, without opposition, their self serving and erroneous legal narrative.
Zachor was called in to correct the legal record the night before the Assembly Judiciary Committee met to consider the bill and its flawed legal analysis. By the time the California Senate considered the bill, Zachor was able to roll back the blatantly misleading legal analysis pushed by pro-BDS forces and provide the Senate with an accurate understanding of the First Amendment as it relates to BDS activity.
Zachor followed this up by re-asserting the constitutionality of the bill, in the face of continued misleading legal analysis by pro-BDS activists, and published an op-ed in a major Jewish newspaper in support of the bill.
From this experience, it became clear that there is a need for a comprehensive legal analysis of the various federal and state laws that may come into play when other states and localities consider adopting anti-discrimination legislation. Zachor intends to publish a detailed legal outline for use by legislators and political executives that not only dismantles the false claims of the pro-BDS legal community but also clearly demonstrates the solid constitutional grounds for future anti-discrimination legislation. In particular, Zachor’s legal guide to BDS legislation will address constitutional issues such as the First Amendment, the Dormant Commerce Clause and the Unconstitutional Conditions doctrine. With such a publication, anti-discrimination legislation will no longer be subject to opposition based on the misleading and legally unsound claims of pro-BDS agents.
Additionally, on the offensive legal front, Zachor intends to create a detailed framework that can be used by individuals and entities that have been harmed by BDS activity, and government agencies with the power to enforce the applicable laws, to prepare claims against (and promote prosecution of) BDS under anti-trust, anti-discrimination and anti-racketeering laws.
How to Help Zachor
Zachor is seeking financial support in order to accomplish the following:
Zachor Legal Institute is a qualified 501(c)(3) tax-exempt and registered non-profit organization with a principle office in the United States. In addition to working to combat BDS, Zachor Legal Institute is active in research and scholarship on the Constitution in general, with a focus on advocacy relating to First Amendment and Second Amendment rights.