Supreme Court of Israel

Israel’s Supreme Court Hands a Victory to Lara Alqasem, But the Future of Foreigners’ Free Speech Remains Uncertain

By Lila Margalit
Wednesday, November 14, 2018, 7:44 AM

On Oct. 18, the Israeli Supreme Court ruled in favor of the appeal of Lara Alqasem, the 22-year-old American student who was detained upon her arrival at Ben-Gurion International Airport and denied entry into Israel when border officials discovered her involvement in pro-BDS activities (BDS is the movement to boycott, divest from and sanction Israel). While the court based its decision on relatively narrow legal grounds, the ruling was attacked by conservatives for reflecting the “extreme liberalism” of an overactive judiciary and criticized by the left for not going far enough.

The decision to deny Alqasem's entry was based on a 2017 amendment to the Entry to Israel law, preventing boycott activists from obtaining visas to enter the country. As Lawfare readers may recall, the law states that non-permanent residents cannot be granted visas, as a rule, “if they, or an organization they act for, has knowingly promulgated a public call to boycott” Israel or the settlements. The law came in the wake of several steps by the conservative-leaning Israeli government in recent years to combat international efforts to boycott and delegitimize Israel—efforts which it has identified as a major strategic threat. For many Israeli liberals, it was one of the latest expressions of “the closing of the Israeli mind”—a narrowing of the bounds of acceptable political discourse that threatens to stifle political dissent.

Delegitimization, Boycotts and Dissent: Some Context

Back in 2011 the Knesset approved a special “Boycott Law” that imposed civil tort liability on individuals publicly calling for a boycott of Israel or “an area under its control” (i.e. Jewish settlements in the West Bank). The law also empowered the government to impose various administrative sanctions on individuals or institutions that have either called for a boycott or committed to participating in one—including denying them certain subsidies and benefits and barring them from competing for government contracts.

In 2015 in Avneri v. The Knesset, a divided Supreme Court upheld the Boycott Law, striking down only one provision that provided for punitive damages. Justice Hanan Melcer, writing for the majority, held that while the law did implicate freedom of expression, it served the legitimate purposes of preventing harm to the state and protecting its citizens from unjustified discrimination—not unlike statutes that seek to combat unfair treatment based on national origin. It also served to protect free speech from the coercive impact of boycotts, which aimed to shut down, rather than promote, intellectual discourse. However, the court also held that to pass constitutional muster, the law must be construed narrowly—limiting liability to cases where plaintiffs could prove a causal link to concrete damage and where the defendants were aware that their call to boycott had a reasonable chance of actually causing harm. Four justices dissented, three focusing their ire at the provision’s conflating boycotts of the settlements with boycotts of Israel. Only one justice—Neal Hendel, who also wrote the court’s opinion in the Alqasem case—held the civil tort in its entirety to be an unconstitutional violation of free speech. (For more on Avneri and its significance, see Elena Chachko’s discussion on Lawfare.)

Also in 2015, the government tasked the Ministry of Strategic Affairs with spearheading the fight against BDS and “delegitimization.” Over the years, the ministry has sought to pursue shady policies like the establishment of a database of Israeli BDS activists, an initiative that was met with the ardent opposition of Israel’s attorney general. (It is unclear whether it was pursued further.) The ministry has over the same period aroused concerns that its activities—pursued with little oversight—serve to “securitize” criticism of government policies (a Justice Ministry bill even seeks to exempt the Strategic Affairs Ministry’s efforts to combat BDS from Israel’s Freedom of Information Act). Early this year, reports indicated that the ministry planned to transfer huge sums of money to a nonprofit corporation formed to promote global engagement and “non-governmental discourse” in the fight against delegitimization—including through what it called “mass consciousness activities” (As of late October, the collaboration appeared not to have gotten off the ground). It is the ministry that has busied itself with compiling blacklists of foreign BDS organizations whose members are to be denied entry to the country according to the 2017 amendment.

The Court’s Ruling in Alqasem: Prevention, not Punishment

Concern that the government had begun treating dissent as a strategic threat reached a crescendo last summer, following a slew of cases in which both Israelis and foreigners—including prominent Jewish-American journalist Peter Beinart—were subject to political questioning at the border, triggering an inquiry by the attorney general. Against this backdrop, the Alqasem case drew heightened attention both in Israel and abroad. The stakes seemed high, transcending the specific legal questions surrounding the revocation of a student visa: Would the court push back against a government that appeared to be exploiting its authority in order to police political opposition?

The facts of the case, as described by the court, were as follows: Lara Alqasem, an American college graduate, arrived in Israel after being accepted to Hebrew University’s master’s program in Human Rights and Transitional Justice and after obtaining a student visa from the Israeli consulate in Miami. When she landed at Ben Gurion Airport, authorities questioned Alqasem about her past activities in her college’s tiny chapter of Students for Justice in Palestine (SJP)—and her visa was revoked after officials determined she had been involved in BDS. The decision to deny her entry cited “considerations regarding the prevention of illegal immigration” and “considerations of public security, public safety or public order.”

Rather than be deported, Alqasem decided to challenge the decision and remained in detention for over two weeks as her case wound its way through the justice system. She argued that she hadn’t been a member of SJP since April 2017, and that even when she served as the chapter’s president, she was only marginally involved in promoting boycotts. In addition, she promised to refrain from participating in any BDS activities during her stay in Israel, affirming that—as indicated by her determination to study at an Israeli university—she currently does not support a boycott.

The case reached the Supreme Court after Alqasem’s initial appeals were rejected by the administrative immigration tribunal and by the District Administrative Court in Tel Aviv. The proceedings were joined by Hebrew University, which argued that the government’s policy could cause irreparable damage to Israeli academia and the university’s international relationships. The right-wing organization Im Tirzu asked to join the proceedings to argue for the government, asserting that allowing Alqasem to attend the university would cause “tension” among students that could lead to physical harm.

The case was heard by a panel of three judges: Justices Neal Hendel and Uzi Vogelman, both of whom had dissented in Avneri, and Justice Anat Baron, who joined the court in 2015, after the Avneri ruling. In the Alqasem decision, Hendel, writing this time for a unanimous court, emphasized that the purpose of the 2017 BDS law is preventive rather than punitive: It does not seek to punish activists for past statements, but rather to give the government an additional tool to fight the boycott movement and protect its citizens against discrimination. This tool, however, is subject to the general purposes of the Entry to Israel Law—the protection of Israeli sovereignty, public safety and security—which preclude purely punitive measures. Thus, the 2017 law allows the government to bar entry to individuals who seek to exploit their physical presence in the country to act against the State; but given the above purposes, it only applies to those that “threaten Israeli democracy and seek to subjugate it through the imposition of an aggressive and violent boycott.” In addition, it only applies to current activists (though the question of when an individual can be said to have ceased past activity could vary from case to case).

Hendel also referenced internal guidelines approved by the interior minister and the minister of strategic affairs that limit the application of the statute to senior members of organizations (or individuals) that act in an “active, consistent and continuous” manner to promote boycotts. While he accepted the interior ministry’s argument that the 2017 statute may not be exhaustive of its authority to prevent entry by boycott activists, he emphasized that even the broad discretion granted to the government in immigration matters had to be exercised in line with the Entry to Israel Law’s general purposes, outlined above.

The court held that the preventative rationales justifying the law simply did not apply in Alqasem’s case. Given the amount of time that had passed since her involvement in BDS, her young age, and her very minor role in the movement to begin with, Alqasem’s desire to study at an Israeli university was enough to negate any concern that she sought to exploit her presence in Israel to promote a boycott. Recommendations by college professors, describing her interest in Jewish studies and her eagerness to engage in open and respectful dialogue, were also cited by the court. At the same time, the court noted that that the decision to allow her into the country did not grant her carte blanche: If at any point she “returned to her problematic ways,” the minister could always revoke her visa and send her home. The fact that she had gotten a visa in advance, and relied upon it in making her plans, was given some weight by the court but was not a decisive factor; had she not so clearly distanced herself from BDS in the period leading up to her arrival, it would not have been enough to enable her to stay.

Justice Vogelman, in a concurring opinion, also emphasized the preventive nature of the law, which sought to prevent boycott activists from entering Israel and spreading their ideas from inside the country. Justice Baron took the most strident tone against the government, noting that the circumstances of Alqasem’s case create the inevitable impression that her visa was revoked simply for her political opinions—a “dangerous and extreme step that could lead to the disintegration of the pillars upon which Israeli democracy is built.”

The Preventive Paradigm in the Service of Ideological Screening

The court in Alqasem found itself navigating a difficult terrain. Only three years earlier, an extended panel of nine justices had upheld much of a law imposing civil liability and administrative sanctions on domestic boycott advocates—and even the portion of the law struck down by the court has since become the focus of renewed legislative efforts (last June, the Constitution and Law Committee of the Knesset voted to approve for first reading a new bill seeking to reinstate punitive damages for BDS activists). Furthermore, Israeli law—like many jurisdictions—grants the government particularly broad authority to regulate entry into the country, and aliens generally have no vested right to obtain a visa. Under these circumstances, the very fact that the court intervened at all is noteworthy.

At the same time, while the decision in Alqasem does place some limits on the government’s power to exclude aliens on ideological grounds, the use of the “preventive” paradigm in this context raises significant problems of its own.

Baron blasted the government for seeking to deport Alqasem for her political views rather than due to concern she would exploit her presence in Israel to further BDS. In Alqasem’s case, this nuance provided a legal basis for her to stay in the country. But for the free speech issues at stake, it’s a distinction without a difference. While the government may not be able to overtly punish people for having held objectionable opinions in the past, it can enlist the logic of “prevention”—verbiage usually associated with threats to national security—to keep them out of the country, as long as it can point to a reasonable “danger” that they continue to espouse such views and will spread them while they are here.

Worse, consider the implications of admitting a student into the country on the explicit condition that they refrain from engaging in certain noncriminal political speech. An unwitting result of the decision in Alqasem could be the creation of a class of individuals—foreigners—subject, while they are in the country, to a specialized regime of ideological scrutiny.

Foreigners, as noted, do not generally have a right to enter the country, and visas can be subject to all sorts of conditions. But censorship at the border chills the space for free discourse for everyone, marking certain beliefs as “off limits” and blocking at least one important avenue for the free exchange of ideas. Israelis have the right not to have their exposure to certain political opinions “managed” by the government; and even aliens, once they are present in the country, should not be threatened with deportation for engaging in speech that has not been criminalized—speech that constitutional considerations of proportionality preclude from criminalizing.

Alqasem left a lot of questions open. How will the BDS law be applied to people who promote boycotts of Israeli settlements rather than Israel itself—can they also be said to “threaten Israeli democracy” or undermine Israeli sovereignty? In addition, the justices took pains to note that a separate constitutional challenge to the 2017 law remains pending. As Elena Chachko argued in March 2017, it was always unlikely that the court would strike it down. The Alqasem ruling, it seems, makes that possibility even more remote.