When I first got into the game of fighting against BDS in the early 2000s (simply called “divestment” back then), I became fairly dogmatic regarding the superiority of political victories over legislative and judicial ones.
This was largely due to the nature of boycott and divestment activity at the time, which consisted of anti-Israel organizations seeking to get a civic institution, such as a college, municipality, church or business, to boycott or divest from the Jewish state through strategies that tended to involve trickery (like getting organizational leaders to pass anti-Israel motions before members knew what was going on) and moral blackmail.
Back then, members of such organizations tended to get enraged once they realized what was about to be done in their name. This meant the most effective ways to counter BDS votes was to activate those members and help them organize to defeat unwanted political measures. While conflicts generated by turning divestment into a political matter (usually accompanied by an organizational vote) gave the boycotters the public show trials they craved, their inevitable defeat left BDS looking more and more like a loser.
In many cases, ongoing defeat within a category of institution helped immunize other organizations from the BDS virus. For example, food coops are no longer targeted by boycott activists since a string of defeats helped establish the fact that the coop movement should not be taking political stands on controversial issues unrelated to their missions. In contrast, when wronged members of the still-only boycott-embracing food coop decided to challenge that boycott in court, they nearly faced catastrophe in the form of harsh court-ordered punishments against them (which have fortunately since been overturned).
Over the course of many years, however, I’ve been convinced by other activists that legal remedies are sometimes warranted, given the changing nature of boycott-related activism.
For example, Kenneth Marcus (now in a position to do something about rising levels of bigotry directed against Jews and Israel supporters on campuses) pointed out how Israel haters engaging in brutish campaigns against their opponents use their own lawyers to scare administrators away from punishing students who engage in gross violations of campus rules. Under such circumstances, it would be malpractice if our side didn’t challenge those same administrators with better lawyers insisting schools enforce their own rules for civil behavior.
Similarly, anti-boycott legislation at the state and federal level serve two important purposes: (1) demonstrating that, far from being widespread, support for BDS is marginal compared to support for Israel demonstrated by the votes of overwhelming numbers of democratically elected representatives; and (2) creating a counterweight to BDS activity taking place way above the level that can be challenged effectively by local, grassroots activists (such as attempts by the UN to create and implement a blacklist of Israeli companies).
But even if some circumstances warrant legal/judicial and legislative activities, I continue to be circumspect about how quickly our side should reach for those arrows. Going to court is tricky, with decisions creating precedents that can be long-lasting. It is also time consuming, and by the time matters are resolved by a judge or jury, the battle may have moved to entirely different ground.
Laws passed to fight BDS can also be double-edged swords. To take a high-profile example, Israel’s law to bar BDS activists from visiting the country has generated bad press for the Jewish state that needs to be compared to the damage that might have occurred had those activists been allowed into the country. Legislators tend to be motivated by a desire to do something in the face of perceived crises and be less concerned with the consequences of the measures they vote in once enacted. Recent controversy generated by banning two anti-Israel congresswomen from Israel also shows how the worthy fight against BDS can get entangled with domestic politics, both in Israel and in the US.
Given the growing and increasingly dangerous anti-Israel project, its continued attempts to take over major institutions and its support by powerful actors (such as national governments and major non-governmental institutions), counting on grassroots activists to save the day is unrealistic. But where and when to appeal to higher authority (such as a judge or legislative body) needs to be thought through and risks balanced against rewards before a strategy is pursued.
If we consider grassroots activism, lawsuits, and legislation as just three of many weapons we have at our disposal, then the issue boils down to how to choose which one(s) to use and how they will be deployed to help us achieve our goals. In other words, it requires us to cultivate not a political or legal mindset, but a military one appropriate when someone else has been waging war against you for over a century.