Harassment by Lawsuit in Salaita Case

KC Johnson and Adam Kissel have written insightfully about the case of Steven Salaita for MTC. Briefly, this August the University of Illinois at Urbana Champaign withdrew its offer to Salaita of a tenured position in American Indian Studies. The offer was withdrawn after Chancellor Phyllis Wise and the Board of Trustees became aware of a series of comments Salaita had made about Israel on Twitter, perhaps the most striking of which concerned the kidnapping of three Jewish teenagers in June. It soon came to be known that they had been murdered, and at the time Salaita tweeted his comment, they were already feared to be dead: “You may be too refined to say it, but I’m not: I wish all the fucking West Bank settlers would go missing.”

As Kissel and Johnson write, U of I’s actions in the case have generated heated controversy, and honorable disagreement, about academic freedom, and, more distastefully, an embrace of Salaita, who has been treated as a rock star on North American campuses ever since. Now, inevitably, Salaita has filed a lawsuit, which I have written about here. Though the suit was expected, one element of it was unexpected: Salaita is suing unspecified donors to U of I who, according to the complaint, caused the trustees and the chancellor to end U of I’s relationship with Salaita.

That’s funny. Salaita’s lawyers want to hold the donors liable for “tortious interference with contractual and business relations.” Simply, Salaita either had a contract or, if his offer letter wasn’t a contract, a reasonable expectation that U of I would, through the Board of Trustees, finalize his offer. But, as we have learned from Freedom of Information Act requests, Chancellor Wise heard from a number of donors, who either suggested or explicitly threatened that if Salaita were hired, they would stop supporting the university.  For this reason, the complaint asserts, they are liable for the damages Salaita suffered as a result of not getting the job.

I say that’s funny because the legal theory here is that the donors, even if they were acting on the basis of a principled and plausible belief, became proper objects of a lawsuit merely by threatening to withhold charitable contributions from the U of I. You know who else tries to get people to break off business relations by threatening to damage their bottom line? That’s right: the boycott Israel movement in which Salaita is a leading figure and in which some of his lawyers are also involved. Whether the boycott, divestment, sanctions movement tries to get department stores to remove Israeli products from their shelves, or to get musicians to break concert dates in Israel, it is applying pressure with the explicit intent of interfering with contractual or business relations. Moreover, while Salaita’s lawyers have preposterously charged the donors, who did not act in concert, with conspiracy, the charge applies much better to the BDS movement, whose members clearly do act in concert.

I do not mean to suggest that boycott opponents should take BDS organizers to court for tortious interference. Like Salaita’s own action, such a suit is very unlikely to succeed; moreover, like some attempts to oppose the anti-Israel movement in court, it might be a propaganda gift to the boycotters, which may convince the public that the suit is intended less to win in court than to  “chill public debate on targeted controversial issues.” That, by the way, is how the Center for Constitutional Rights, which is representing Salaita in his suit, described a civil action against the Olympia Food Co-op board, which had voted in favor of boycotting Israeli goods. The Center noted concerning the case that when you act to punish people economically because you disagree strongly with something they have done, you are engaging in “speech protected by the First Amendment,” and suits that suggest otherwise are “harassment-by-lawsuit.”

The CCR issued that statement nine days before they announced Salaita’s suit against the donors.  It turns out that they are not against “chilling public debate on targeted controversial issues” or “harassment-by-lawsuit” after all.