The Volokh Conspiracy

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Volokh Conspiracy

Federal judge advances lawsuit challenging academic group's Israel boycott


A federal district court just issued its first ruling in Bronner v. Duggan, a case brought by several prominent members of the American Studies Association against the group and its officers. The plaintiffs contend that the ASA's adoption of a boycott of Israel violated its own rules and procedures, as well as general laws regulating corporations and nonprofits.

I noted the case in these columns when it was filed a year ago, and helped advise the plaintiffs' legal team. Back then, Palestine Legal—an activist group that provided legal advice to the ASA during its adoption of the boycott—claimed the lawsuit was designed to "chill speech supporting Palestinian rights," and predicted the lawsuit would be would "thrown out by the court."

Instead, a Memorandum Opinion by Judge Rudolph Contreras of the U.S. District Court for the District of Columbia denied the defendants' demands for dismissal of most of the plaintiffs' causes of action (waste, breach of contract and violation of the D.C. Nonprofit Corporation Act).

The court rejected what was perhaps the defendants' most vocal contention, which invoked the First Amendment. They claimed the group had a broad "right to engage in a boycott," and that enforcing the group's own associations rules, or general provisions of corporate law, would infringe on their free speech. The judge noted the obvious—the dispute does not involve any state action, but rather members of an organization seeking to enforce the group's own private rules and arrangements. Judicial enforcement of contractual arrangements does not constitute state action, and the defendants were surely unwise to rely on famous outlier cases such as Shelley v. Kraemer. Moreover, the fact that complying with the requirements of the D.C. nonprofit code might make it harder for the association to pass boycotts does not make it a First Amendment issue.

The ASA case will now proceed to discovery, which may shed more light on the full circumstances and considerations that lead a group of academics to adopt a unique boycott of a foreign country's academic institutions.