Courts should not police advocacy organization leadership for taking strong positions. 

This week, the D.C. Court of Appeals accepted an amicus curiae (“friend of the court”) brief we filed in a lawsuit against the American Studies Association (ASA), arising out of ASA leadership’s decision to support Palestinian activists’ call to “Boycott, Divest, and Sanction” (BDS) Israel. While we support the protection of human rights and the environment everywhere, EarthRights International has never engaged on contested issues in the Middle East, and we certainly do not have the expertise to sort through the complicated questions surrounding the BDS movement. So why weigh in here? Because ultimately, this issue is not about the Middle East—it’s about upholding the ability of NGOs like the ASA to engage in public discussions about controversial issues and to show solidarity with allied organizations. 

Why File An Amicus Brief?

First this amicus brief focuses on a specific legal issue, not the underlying dispute. In particular, the brief is about interpretation of DC’s anti-SLAPP statute, a law designed to guard against nuisance lawsuits targeting speech and advocacy. We have joined with other NGOs to fight SLAPPs through the Protect the Protest coalition.

Second, this lawsuit poses an insidious threat to the ability of nonprofits to advocate for important issues. In particular, the Sierra Club’s engagement on issues of immigration and systemic racism demonstrates the dangers posed by this case.

Parallels with the Sierra Club

As the largest grassroots environmental organization in the US, the Sierra Club has faced a variety of challenges  beyond simply protecting the environment in its 128-year history. In the 1980s, the Sierra Club endorsed the idea that immigration into the United States needed to be limited to lessen the strain on the environment, as part of an overall goal of limiting population growth. The Club moved to a neutral position on immigration in the 1990s, which prompted a dissident group of members to force a membership vote to advance an agenda that opposed immigration; that effort was defeated. In recent years, the Sierra Club has evolved into a staunchly pro-immigrants-rights group, supporting DACA and opposing “deportations that tear apart families and communities.”

More recently, the Sierra Club has reckoned with its own history of racism, including that of its co-founder and first president, John Muir. Amid the nationwide protests following the killings of George Floyd, Breonna Taylor, and others, the Club’s board endorsed the platform of the Movement for Black Lives: “Defund the police, invest in Black communities, and get Donald Trump out of office.”

The Sierra Club has had vigorous debate among its membership regarding some of these issues, and members can always decide to elect a board to take a different direction. Some members undoubtedly still think that restricting immigration is important for protecting the environment; others may believe that the Club has no business weighing in on issues of abusive policing. But no one has suggested that the Sierra Club board, or its other leadership, is somehow violating the law by taking these positions. Its leadership follows its convictions; if the membership disagrees, they can elect different leadership.

American Studies Association in Court

That brings us back to the American Studies Association, which is an organization of academics studying U.S. culture and history that engages in scholarship and advocacy. In December 2013, the ASA’s board endorsed a boycott of Israeli academic institutions, stating that it was acting in solidarity with Palestinian civil society, and acting to protect students and scholars everywhere.

Several members of the ASA, who opposed the resolution, sued the organization. They argued that its leadership had violated their “fiduciary duties” to the membership by advocating in support of the BDS movement, and by concealing their convictions about BDS when they ran for office. And the trial court agreed with this—in an order issued last December, the judge found that for the ASA’s leadership to promote their “own goals” or their “personal political agenda” could violate their duties to act in the best interests of the organization.

Why this ruling is dangerous

That’s nonsense – and it’s dangerous nonsense.  A breach of fiduciary duty typically involves rank incompetence that harms the organization, or a conflict of interest—such as financial self-dealing, or hiring family members. It’s dangerous because stating that the leadership of an advocacy organization cannot act in support of their own political convictions would threaten movement-building across the spectrum. It would threaten actions such as the Sierra Club’s endorsement of Black Lives Matter. (EarthRights itself is not a membership organization, but we issued a similar statement of solidarity.)

Anyone could claim that the Sierra Club’s leadership was not acting in the “best interests” of the organization, or its membership—but instead only promoting the political agenda of its leadership by calling for racial justice. Courts are not well-equipped to make that kind of determination. Indeed, the DC court even recognized that the ASA’s resolution “related to the ability of foreign scholars to work on relevant issues safely, freely, and without fear of persecution.” This is arguably more relevant to the ASA’s mission than the Sierra Club’s actions on racism.

Freedom of expression must prevail

Courts should not be attempting to police whether a membership organization’s leadership is taking the correct positions—this strikes at the heart of the independence of civil society, and freedom of thought and expression. Advocating for one’s sincerely-held convictions cannot be considered a breach of fiduciary duty. That kind of thinking leads us down a road where NGOs risk lawsuits by acting in solidarity, or taking controversial positions. It would build silos between movements, because the leadership of an environmental group might be afraid to endorse anti-racism out of fear of being accused of promoting their own personal agenda.

And it’s entirely unnecessary; as the Sierra Club’s experience shows,there’s already a corrective mechanism built-in: democracy. If the membership doesn’t like the actions of leadership, they can vote them out. Political contests within an advocacy organization should not be decided by a court. Regardless of what you think about the BDS movement, failing to support the ability of an organization to endorse that movement may have far-reaching consequences.