Ben & Jerry’s announcement that it would no longer sell ice cream in areas it deemed “occupied Palestinian territories” raised an outcry among Israel supporters around the world, against both the ice cream brand and its parent company, Unilever. Hamodia spoke Tuesday with Alan Dershowitz, a prominent attorney, Harvard law professor emeritus, and pro-Israel activist, regarding the boycott and legal action he may take against Unilever.
Interview has been lightly edited.
Ben and Jerry’s announced last week that it is boycotting what it referred to as the “occupied Palestinian territories.” What is your reaction to that?
First Ben & Jerry’s wanted to boycott all of Israel — Tel Aviv, Haifa, Bnai Brak, all of all of Israel. They were overruled by the parent company, Unilever. So let’s put the blame squarely where it belongs, on Ben and Jerry, for the bigoted, antisemitic singling out of Israel.
They haven’t boycotted other countries with far, far, far worse human-rights records. It was blatant bigotry and antisemitism on the part of Ben and Jerry.
Ben and Jerry and their board are bigots and are guilty of discrimination. That’s number one.
Unilever, let’s understand what they want to boycott. Unilever wants to boycott the Jewish Quarter of Jerusalem — that is regarded as occupied territory by them. They want to boycott the Hadassah Hospital. They want to boycott the areas around the Kotel, all of which they regard as occupied territory. They also want to boycott Maaleh Adumim and Gilo, which are basically parts of Metropolitan Jerusalem. It’s immoral and it’s illegal, and we’re going to fight back by all legal and economic means.
You said Unilever wants boycott these places. Did you mean Ben & Jerry’s wants to boycott them?
No. Ben & Jerry’s wants to boycott all of Israel. Unilever overruled them and said they’re only going to boycott “occupied” areas. But according to Unilever, “occupied” areas include the Jewish Quarter.
Are you working on a lawsuit on behalf of Unilever’s shareholders?
I’m not working on anything at the moment. Right now we’re in the strategy phase. I’m talking to a lot of different lawyers about what the best approach is. The one thing we all agree on is that we will sue. What we are still strategizing about is what form the suit can take.
There are lots of different forms. There could be a stockholder derivative suit against Unilever. There could be a contract lawsuit against Unilever by the Israeli distributor of Ben & Jerry’s. There could be lawsuits brought by various attorneys general under state law. There could be a lawsuit brought in federal court. There are lots and lots of potential lawsuits. What we agree on at the moment is that there will be lawsuits. There will be a legal response. And the question is how to coordinate. There are a number of different legal groups that are thinking about how best to do this. And as far as I know, a final decision hasn’t yet been made. But a final decision has been made that we will bring lawsuits.
Unilever says that when it acquired Ben and Jerry’s, part of the deal was that Ben & Jerry’s could engage in political activism. So why is it appropriate to go after Unilever rather than Ben & Jerry’s?
Because Unilever owns Ben & Jerry’s. Ben & Jerry’s is not any longer an official company. Unilever made that deal. It’s an illegal deal. It violates their obligation to stockholders. A corporation has an obligation to maximize the value of the stockholders. To allow Ben & Jerry’s to engage in their own vanity political views undercuts the role of a public corporation. Public corporations are supposed to have a fiduciary obligation to their stockholders. So particularly if Ben & Jerry’s’ politics are illegal, you can’t legally contract with somebody to do something illegal.
What if Ben and Jerry decided now they want to discriminate against African Americans? That would be illegal. And discriminating against a country is illegal based on national origin.
Also, Ben & Jerry’s would probably continue to sell to Muslim stores on the West Bank. And if they would sell to Muslim-owned stores and not to Jewish-owned stores, that would constitute religious discrimination.
I don’t think Unilever wants to do this. I think they’re caught; they’re stuck by their stupid contract that they made with Ben & Jerry’s.
Last time something like this happened and we threatened lawsuits, it was against Airbnb, they backed down and we won. And we anticipate winning this one as well.
As a general matter, is political activism that affects the bottom line always a violation of fiduciary duty? One example: some people are calling for companies not to advertise at the 2022 Beijing Winter Olympics, because of China’s treatment of the Uyghuirs and other human-rights violations. Is it always improper for a company to engage in political activism if it affects the bottom line?
If it affects the bottom line, it’s not illegal, but if stockholders disagree with it, they can challenge it.
As far as the states that have anti-BDS laws: In general, is there any concern that a state using the power of the purse, whether it’s divesting pension funds or refusing to purchase products from a company, based on their political beliefs, might be a First Amendment violation?
No, because it’s not their political beliefs, it’s their actions. You can advocate whatever you want. You can advocate BDS, you can advocate discriminating against women. You can advocate anything. You just can’t practice it. So if the statutes are limited to the practice of discrimination, then they’re constitutional. If they applied merely to advocacy of discrimination they would be unconstitutional.
On another note, you’re involved in a program with some attorneys to sue anyone who physically attacks a Jew. Can you talk about that?
“Hit a Jew, we sue you.” That’s the program. If you attack a Jew physically, we will sue you, and take away your car and take away your home and take away your pension.
Is this because of a concern that the criminal penalties aren’t stiff enough?
And that prosecutors aren’t prosecuting some of these cases.
Finally, I heard you on the Zev Brenner program the other night discussing that you are working to bring a Chabad House to Martha’s Vineyard, where you have a summer home. Can you discuss that?
Martha’s Vineyard has a Hebrew Center which goes back a long time and has always served the community very well. But it has now become a kind of J Street, anti-Israel congregation. And a lot of Jewish residents of the Vineyard don’t want to associate with a Reform congregation that is perceived as being anti-Israel and that won’t have pro-Israel speakers and that generally doesn’t serve the interests of the pro-Israel community on the Vineyard. So a Chabad shliach came to me and I encouraged him, and will help support any effort to build a Chabad on the Vineyard.
People are skeptical. But people were skeptical when Rabbi Hirschy Zarchi came to me 20-something years ago to build a Chabad at Harvard. We succeeded beyond any expectations, and that was the beginning of Chabads at hundreds of university campuses around the world.
I’m proud of the role I played in that. And I’m proud of the role I’ll be playing in helping to bring a Chabad to Martha’s Vineyard.
You like to say that with your activism for Israel and your defense of Trump, it’s easy for you to socially distance these days at Martha’s Vineyard.
I’ve been the victim of a kind of left-wing McCarthyism on the Vineyard.
A cabal of people, most of whom are virulently anti-Israel, have gotten together to ostracize my wife and me. The Chilmark Library won’t allow me to speak. The Chilmark Community Center won’t allow me to speak. The Chilmark Hebrew Center won’t allow me to speak. So we’re fighting back.