The Washington State Supreme Court heard oral arguments on Tuesday in the case against sixteen current and former members of the Olympia Food Co-op board of directors. The plaintiffs say the board exceeded its authority by passing a resolution to boycott Israeli goods five years ago.
Lawyers for the plaintiffs — five former members of the co-op, which has 22,000 members — argued against both the 2010 decision to boycott Israeli goods and against a Washington State law that saw their previous attempts to stop the boycott defeated in lower courts.
Since the case was originally filed in 2011, it has been rejected twice by lower courts on the grounds that it has no merit and qualifies as an attack on public expression. The anti-boycott co-op members have been ordered to pay damages to members of the Olymia Food Co-op board as well as attorneys fees.
The lawsuit followed the board’s 15 July 2010 decision to stop carrying Israeli goods at the co-op’s two grocery stores in Olympia, the capital of Washington state. The decision made the co-op the first grocery store to join the international boycott, divestment and sanctions (BDS) movement.
When five of the co-op’s members objected, the board offered to put the boycott to a member-wide ballot according to its existing procedures. But instead of pursuing that route, three anti-boycott members ran for board elections. When they lost, they launched a legal action.
Meanwhile, the co-op began removing Israeli products as soon as the decision was made and has since maintained the boycott.
While the complaint against the co-op centered on alleged procedural misconduct, defendants argued — and the courts have so far agreed — that the legal action was really motivated by a wish to terminate the co-op’s boycott of Israeli goods.
The Center for Constitutional Rights (CCR), which represents the board members, immediately requested to have the case dismissed as a SLAPP — Strategic Litigation Against Public Participation. Under Washington state law, a SLAPP is an abusive lawsuit whose purpose is to prevent or deter people from exercising their constitutional rights by saddling them with expensive litigation.
CCR argued that the lawsuit was an effort to silence the co-op’s principled stand, expressed through BDS, against Israel’s human rights violations.
Collusion with Israel
As was revealed by The Electronic Intifada in 2011, just before the lawsuit was filed, the plaintiffs are backed by both the Israeli government and StandWithUs, an anti-Palestinian advocacy group that works closely with Israel.
StandWithUs has been less than forthcoming about its collusion with the Israeli government to pursue the Olympia Food Co-op. But in a friend of the court brief, Jewish Voice for Peace quotes a StandWithUs statement that was once posted on the pro-Israel group’s website, but has since been removed.
“In 2011, StandWithUs filed a lawsuit against the Olympia Food Co-op in Olympia, Washington, to nullify its boycott of Israeli-made products,” the website had stated. “The lawsuit was the byproduct of the partnership between StandWithUs and the Israeli Ministry of Foreign Affairs, spearheaded by Israeli Deputy Foreign Minister Danny Ayalon, and brought against the Olympia Food Co-op and its board for violating their own policies.”
In February 2012, a Washington state judge agreed with the co-op board members that the lawsuit against them was a SLAPP and ordered the anti-boycott plaintiffs to pay $160,000 in damages plus legal fees. The ruling was upheld by an appeals court. Last October, the state supreme court agreed to hear arguments in the case.
Free expression versus access to justice
The Center for Constitutional Rights’ Maria LaHood represented the co-op board members at the supreme court. After the session, she told The Electronic Intifada that the justices pressed both sides over their claims. She said that one justice asked how the plaintiffs were distinguishing between their opposition to the boycott and their claim that the board breached its authority by deciding to boycott Israeli goods.
Washington’s anti-SLAPP law is considered one of the more stringent of its kind in the country. The American Civil Liberties Union’s Washington affiliate filed a friend of the court brief last December arguing that Washington’s anti-SLAPP statute is overly inclusive of “both frivolous and legally viable claims,” thereby infringing on the rights to trial by jury and access to the courts.
LaHood said the ACLU has filed such briefs twice before arguing against the state’s anti-SLAPP law. In those past cases, however, the ACLU had argued that the law had been wrongly applied, whereas in this case the ACLU’s brief had focused primarily on the statute and did not weigh in on how it had been applied in the case against the Olympia Food Co-op.
The Lawfare Project also filed a brief arguing the unconstitutionality of the anti-SLAPP law. As Phan Nguyen explains for Mondoweiss, the Lawfare Project is an anti-BDS organization with funding from pro-Israel sources. Moreover, while the Lawfare Project’s brief presents the organization as concerned with the anti-SLAPP law’s infringement on access to justice and the courts, it has in the past praised anti-SLAPP laws.
LaHood told the The Electronic Intifada that the case against the Olympia Food Co-op’s boycott is taking place amid nationwide attempts to curb criticism of Israel and inhibit the boycott, divestment and sanctions movement.
While the Supreme Court of the United States has affirmed that boycotts are protected free speech, lawmakers in three states have introduced legislation that would punish state-funded universities where faculty or departments adopt or even advocate for academic boycotts of Israeli institutions. None of the bills has become law.
LaHood said it is unclear how long it will take the Washington supreme court to reach what is likely to be a closely watched decision.