A few months ago the co-founder of the Boycott, Divestment and Sanctions movement, Omar Barghouti, told me that he felt this rights-based movement had reached “the South African moment.” By that he meant that world opinion had begun to swing in favor of the Palestinians in their fight for rights and justice. Nevertheless, with such success comes even greater repression: Israel has invested the equivalent of more than $25 million to fight BDS, and increased pressure diplomatically. Meanwhile, in the U.S. several states have passed resolutions condemning BDS. All told, at least 22 bills attacking the BDS movement were introduced last year. The organization Palestine Legal notes that “These bills are part of a broader effort to shut down the movement for Palestinian rights, and BDS efforts in particular.” It has now compiled a number of documents on these bills, showing that what they all have in common is leveraging the power of state legislatures to silence criticism of Israel. This is unique in American political life—the harnessing of U.S. state bodies to protect foreign governments from criticism. One has to wonder what the purpose of these bodies actually is in these instances. Don’t they have the needs and requirements of their own citizens to worry about?
One bill, passed in New York state, would make boycotting countries allied with the United States illegal. As Rebecca Vilkomerson, executive director of Jewish Voice for Peace. explained in Salon,
The bill requires the state to create a blacklist of ‘persons’ (individuals and companies) that boycott or encourage others to boycott U.S. allies. While the bill references other countries as well, its supporters have made clear their main motivation is to protect Israel from censure….
Boycott is a tactic that leverages the power of consumers to draw attention to an issue and shift public opinion in favor of policy change. Boycott has long been a tool of social movements: used by abolitionists to protest slavery, by civil rights activists to demand an end to segregation during the 1960s, by labor organizers to demand collective rights for farmworkers, and by global civil society to call for an end to apartheid in South Africa. It is an especially important tactic when, as in the case of Israel, people are acting when our government will not.
What is essential to note is that whereas boycotts such as those just mentioned are entirely legal, legislation such as that passed in New York is, in fact, unconstitutional:
These bills seek to unconstitutionally punish human rights boycotts of Israel (and other “American allies” in the case of S6378A/A9036) by:
- Creating an online blacklist of individuals, non-profit organizations, companies, and other entities that support politically motivated boycotts;
- Prohibiting blacklisted individuals and entities from doing business with the state of New York, and
- Prohibiting state pension funds from investing in companies engaged in politically motivated boycotts of Israel.
S6086/A8220 and S6378A/A9036 are an unconstitutional attack on freedom of speech and establish a dangerous precedent reminiscent of McCarthyism.
Indeed, the more one looks at these bills, the more one perceives the contradictions they present—how much are we willing to go along with tearing up the Constitution so that an illegal occupation can continue unimpeded? Palestine Legal points out that Pennsylvania HB 1018
attempts to stifle constitutionally-protected speech by denying state aid to colleges and universities that boycott or divest from Israel. But government restrictions and regulations cannot be based on the desire to punish First Amendment activities that aim to influence public opinion on a nation’s policies and actions. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Boycotts “to bring about political, social and economic change” through speech, association, assembly, and petition are unquestionably protected under the First Amendment.
It notes the great irony of the state of Pennsylvania passing this anti-boycott legislation when, in fact, “Pennsylvania played a critical role in this country’s long history of protecting boycotts as political speech. On October 20, 1774, the First Continental Congress, meeting in Philadelphia, issued a boycott against British, Irish, and West Indian goods in an effort to avoid war, persuade British lawmakers, and influence British public opinion.” When we acquiesce to such bills, we abandon the very rights that our country is predicated upon.
Rahul Saksena, staff attorney for Palestine Legal, points out, "Instead of protecting and advancing civil and human rights, our elected officials in Albany are taking steps to punish First Amendment-protected activity and blacklist human rights activists around the world. The lawmakers who support these bills are not only out of touch with the growing movement to boycott, divest from, and sanction Israel, they are also out-of-touch with the U.S. Constitution."
Nonetheless he told me that he urges those working for justice in Palestine not to be deterred from continuing their activism, "While we are concerned with the anti-boycott bills being introduced in state legislatures, Palestine solidarity activists should know that your right to engage in boycotts to bring about political, social, and economic change -- like boycotts for Palestinian freedom -- is protected by the First Amendment of the U.S. Constitution. No state law can take away that right. The best way to fight these bills is to organize more BDS campaigns and use these bills as an opportunity to raise public support for Palestinian freedom." If anything, these repressive measures coming from established institutions of power only call out the need for more grass-roots activism—not only to advance the Palestinian fight for rights, but also to advance the rights of all progressives to lodge protests against injustice in all forms. If we give in to these unjust legislative bills, we will have relinquished one of the last remaining tools we have for social justice.
UPDATE: On Feb. 12, Electronic Intifada reported two anti-BDS measures introduced in Congress that seek to offer these state bills some federal cover: “Earlier this week, Senators Mark Kirk (R-IL) and Joe Manchin (D-WV) and Representatives Robert Dold (R-IL) and Juan Vargas (D-CA) introduced the ‘Combating BDS Act of 2016’ (S.2531 and H.R.4514), bills which seek to authorize state and local governments to divest assets from and prohibit investment in any entity that “engages in a commerce or investment-related boycott, divestment or sanctions activity targeting Israel.”
The report makes three important points:
First, they seek to proactively prevent the doctrine of preemption from being employed in the future to invalidate state-level anti-BDS laws. This doctrine holds that federal law takes precedence over state law when the two are in conflict. By passing the Combating BDS Act, Congress would align federal law with emerging state law to prevent this potential conflict from arising in the future.
Second, the bills attempt to immunize state and local governments from legal challenges by corporations which may be harmed by state divestment.
Third, and perhaps most importantly, these bills would have the federal government “authorize” states and local governments to do something blatantly unconstitutional: penalize entities for engaging in First Amendment-protected political speech.
In a landmark 1982 decision in NAACP v. Clairborne Hardware, the US Supreme Court ruled that boycotts and related activities to bring about political, social and economic change are political speech, occupying “the highest rung of the hierarchy of First Amendment values.”
So now we have the Congress itself colluding with state legislatures to deny people their constitutional right to free speech, all for the sake of defending a foreign government’s right to violate human rights and human dignity. What if the South African apartheid regime had made it illegal to boycott South Africa in the US and elsewhere? So in this way BDS is experiencing even worse pressure than South African protesters. Yet there is no question that its message is spreading nonetheless.