The First Amendment Blocks Anti-BDS Legislation in the United States

Since Palestinian civil society organizations issued a call in 2005 for international solidarity with Palestinians through the use of boycott, divestment, and sanctions (BDS), modeled after the anti-apartheid movement in South Africa, Palestinian rights advocacy has grown and successfully shifted conversations in various US institutions, including universities and churches. Israel, equipped and experienced in the use of military force, found that its traditional weapons cannot defeat such activism. It would instead have to win a battle of ideas.

BDS efforts present audiences with a question: Can they remain complicit in Israel’s human rights abuses against Palestinians? Israel’s supporters have various responses to these efforts, including 1) to claim no such human rights abuses exist or that they are insignificant, and 2) to smear the activists. Neither of these responses is compelling, even if both approaches may muddy the waters and slow down the process. In the end, however, the reality of Israeli policies and the impact they have on the rights of Palestinians are the deciding factors. The longer the battle of ideas goes on, the more people will turn away from supporting Israel. Defending Israel’s policies on their own merits simply doesn’t cut it. Another way to try to stop the success of BDS efforts is to silence the conversation altogether; after all, an argument cannot be lost if it is not permitted to be proposed in the first place.

Repression across the Country

Various repressive efforts have been attempted and aimed at silencing and intimidating BDS activism. Perhaps most notorious among these is the advancement of legislation that would turn the law into an instrument against such activism. Such repressive legislation, most common at the state level, often takes the form of statutes that would compel state governments to terminate financial relationships with persons and businesses supporting a boycott of Israel. For example, if a local snow plowing company in the state of Maryland—one of the states where such laws exist—divested from corporations that profit from Israel’s occupation, that snow plow company would not be eligible for contracts with the state.

Repressive legislation, most common at the state level, often takes the form of statutes that would compel state governments to terminate financial relationships with persons and businesses supporting a boycott of Israel.

Legislation like this has spread across various states. A new investigative report by the Center for Public Integrity and USA Today found that  “pro-Israel advocates have taken the battle to state legislatures, where their lobbyists worked with sympathetic lawmakers to shut down” BDS efforts. Further, a “rapid succession of states – 27 in four years – adopted measures to curb the initiative known as BDS. These new laws and executive orders were crafted by activists, then copied from one state to the next and adopted with virtually identical language.”

Despite the quick spread of these laws in states across the country, many of them have come up against an important obstacle: the US Constitution, and specifically, the First Amendment. This amendment guarantees freedom of speech, saying that “Congress shall make no law” which infringes on the free speech of individuals in the United States. Further, the Supreme Court has ruled that political boycotts are protected speech under the First Amendment; therefore, discriminating against people for supporting a boycott of Israel would be unconstitutional.

The Supreme Court has ruled that political boycotts are protected speech under the First Amendment; therefore, discriminating against people for supporting a boycott of Israel would be unconstitutional.

Indeed, the courts have already begun to hear cases stemming from laws aimed at repressing BDS activity and ruling them as unconstitutional. Laws passed in several states have been challenged in federal courts, including in Kansas, Arizona, and Texas, and the courts have issued injunctions to stop the state from enforcing the laws.

Most recently, the Texas case was brought by an array of plaintiffs including a school speech pathologist and other school and university employees. The federal judge rejected every single one of the defendants’ arguments and granted an injunction in a decision for the plaintiffs. His ruling made clear the following:

“In Texas, only five legislators voted against H.B. 89. (Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 4). Texas touts these numbers as the statute’s strength. They are, rather, its weakness. ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). ‘[T]he purpose behind the Bill of Rights, and of the First Amendment in particular[,]’ is ‘to protect unpopular individuals from retaliation—and their ideas from suppression—at the hands of an intolerant society.’ McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).”

One Israel supporter recently wrote in a Jewish newsweekly regarding the Texas case, “The case has already become a public relations debacle for the pro-Israel community. It has all the appearances of an overbearing government thought-police pressing down on the little guy, holding paychecks hostage in order to demand ideological conformity on the merits of a country two continents away.”

If this strategic blunder seems eminently foreseeable, that is because it was. In 2017, a report by the ADL and the Reut Institute, two organizations working together to inform what they call the global “pro-Israel network” on how best to combat Palestinian rights activism, the authors ask, “How far should we take anti-BDS legislation?” They answer that “Legislative initiatives in a number of states have raised concerns regarding their possible violation of free speech. Future legislation needs to be developed with careful consideration of this issue to avoid the potential for rallying progressive groups in coordinated opposition.”

Federal Level Legislation Stalls

Despite this warning, the ADL along with many other pro-Israel groups continued to support blatantly unconstitutional legislation aimed at intimidating and silencing BDS activism, including at the Federal level. One of these laws was the Israel Anti-Boycott Act (IABA).

The Israel Anti-Boycott Act was so obviously controversial that its initial cosponsors in the US Senate tried to attach it to other legislation in the hope that it would pass quickly and quietly, thus circumventing debate. That did not happen.

The IABA was so obviously controversial that its initial cosponsors in the US Senate tried to attach it to other legislation in the hope that it would pass quickly and quietly, thus circumventing debate. That did not happen and the bill became a flashpoint for controversy when the American Civil Liberties Union (ACLU) weighed in against it and one of its Democratic cosponsors, Senator Kirsten Gillibrand (D-New York), withdrew her sponsorship. Now with this unconstitutional legislation out in the open, legislators would have to decide whether to side with the ACLU and the Constitution or with a law seeking to silence criticism of Israel. For Republicans, siding with Israel over the First Amendment gave them little pause. For Democrats, however, the story was different. Public opinion on Israel was shifting in the party and criminalizing dissent did not seem like a progressive thing to do. Groups like the ACLU carried much more important weight among Democrats than Republicans. By the end of the 115th Congress, the controversial legislation could not move forward, and it expired. The 116th Congress, with a Republican-controlled Senate but a Democratic-controlled House, began with a Senate resolution that would once again force lawmakers to choose between the Constitution and silencing Israel’s critics.

Senator Marco Rubio put forward a bill––“Strengthening America’s Security in the Middle East Act of 2019”––that packaged four different bills including one that had expired without passing in the previous Congress (called the Combating BDS Act of 2019). Although this bill passed in the Senate, nearly half the Democrats voted against it, including almost every Democrat in the Senate who was running for president. The fight over the IABA and now this second vote made it very clear that laws seeking to silence criticism of Israel were dividing the Democrats. Now in control of the House, the Democrats will be much less likely to advance such legislation, and even though S.1 has companion legislation in the House, it has yet to advance and likely will not.

Now in control of the House, the Democrats will be much less likely to advance such legislation, and even though S.1 has companion legislation in the House, it has yet to advance and likely will not.

It seems that Israel’s lobbyists have begun to figure this out and adjust. The American Israel Public Affairs Committee (AIPAC), the biggest and most influential among Israel lobby groups, had supported the IABA and also the S.1. package that included the Combating BDS Act of 2019. AIPAC’s current approach, however, with the aim of achieving wide consensus, is to push for a resolution that merely condemns BDS without attempting to criminalize it or otherwise violate the First Amendment in the process. While this resolution provides AIPAC an opportunity to demonstrate bipartisan support again, it also seems to be an acknowledgment that the previous efforts were counterproductive and an overreach. It is not clear if this is an adjustment of tactics based on an acknowledgment of the costs or merely a recognition of shifting political majorities in Congress. If the latter, there might be a return to unconstitutional legislative pushes at the federal level in the future.

Effort Backfires but Attempts at Repression Continue

While it seems the effort to push unconstitutional legislation has backfired, other repressive initiatives continue. For example, after a recent high-profile university event about the right to free speech on Palestine was scheduled at the University of Massachusetts, some Israel advocates sued to try to get the university to stop the event alleging that it would cause harm to Jewish students. This effort to equate Palestinian rights advocacy with anti-Semitism has been another pathway to try to harness the power of the law as a repressive instrument to silence debate. In such cases, advocates seek to use preexisting laws relating to discrimination and demand their enforcement against Palestinian rights advocacy. A judge in Massachusetts, however, rejected the request for an injunction against the event and stated, “I can’t enjoin a forum just because someone may say something at that forum that fits someone’s definition of anti-Semitism or racism or homophobia or anything else.” Judge Robert Ullmann continued, “There’s nothing that comes even close to a threat of harm or incitement to violence or lawlessness.”

Although the event took place, it was only after a legal obstacle was thrown in its way. To be sure, efforts to intimidate and silence students on university campuses are very common. It is not clear yet whether the work of the repression network will significantly shift due to the First Amendment or merely be slightly adjusted to attempt passing constitutional challenges.

Efforts to intimidate and silence students on university campuses are very common. It is not clear yet whether the work of the repression network will significantly shift due to the First Amendment or merely be slightly adjusted to attempt passing constitutional challenges.

If laws aimed at silencing and intimidating Palestine rights advocacy cannot be passed because they violate the Constitution, using preexisting laws against discrimination might be the fallback option. In line with this, there is a growing chorus attempting to conflate anti-Zionism with anti-Semitism. Indeed, the newly appointed US Special Envoy for Monitoring and Combating Anti-Semitism, Elan Carr, has taken this view, as has US Secretary of State Mike Pompeo. That this seems to be an operating principle within the executive branch now suggests that the groundwork is laid for the existence of current anti-discrimination laws being used against Palestine rights advocacy. One avenue through which this could happen is the Department of Education, because President Donald Trump appointed a staunch advocate of such political targeting to head the Office of Civil Rights. Universities like the one in Massachusetts, for example, could face penalties or lose funding over their willingness to host such events. While this would set up yet another constitutional challenge, the repressive effect might well be easier to impose since the laws are already in place.

In sum, developments over the last several months have underscored something of a shift in the battle over the right to boycott Israel in the United States, with the First Amendment presenting a thick red legal—and, importantly, political—line. While the First Amendment has proved a useful guarantor of the right to boycott, interest groups backing Israel still seem more strategically committed to stopping the debate than attempting to win it when it comes to addressing US complicity in Israeli policies.

Yousef Munayyer is a Non-resident Fellow at Arab Center Washington DC. To learn more about Yousef and read his previous publications click here