State anti-BDS (boycott, divestment and sanctions) laws that oppose discriminatory trade boycotts against Israel are being challenged in court.
The BDS Movement, a self-proclaimed civil rights organization, claims that this legislation violates the First Amendment that guarantees freedom of expression.
The pro-Israel community fully supports the First Amendment to the Constitution. Laws against BDS are narrowly crafted anti-discrimination laws, similar to many other anti-discrimination laws that protect women, racial minorities, and LGBTQ people, among other categories of people. All of these laws highlight the fundamental distinction between commercial activity and the exercise of freedom of expression, which becomes apparent in the course of fulfilling the government’s obligation to protect classes of people from discrimination.
In a January 2019 ruling, an Arkansas federal judge agreed with this analysis, prejudicially dismissing a challenge to that state’s anti-BDS law.
There is a long history of laws in the United States that prohibit discriminatory business activity against Israel. More than 40 years ago, in response to the Arab League boycott of Israel, amendments were implemented to the Export Administration Act and the Tax Reform Act of 1976 to prevent entities from imposing the wrong foreign policy on the US. They apply to both individuals and businesses and prohibited unauthorized commercial boycotts against foreign nations.
In response to BDS discrimination against Israel, states enacted state-level bans that generally protect their economic and business interests by prohibiting the state from spending taxpayer money to hire or invest in companies that engage in BDS business discrimination against Israel. More than half of all states currently have anti-BDS laws, and other states are considering adopting similar laws.
Anti-BDS laws do not restrict a person’s right to speak out against Israel and, contrary to the incendiary claims of those who oppose such laws, do not require residents of the state to take “oaths” in favor of Israel. Rather, these laws simply target the discriminatory business conduct of the BDS boycott campaign.
Additionally, a long list of Supreme Court cases supports the fact that state anti-BDS laws do not violate the First Amendment.
Those who argue that state anti-BDS laws violate the First Amendment generally cite the landmark US Supreme Court case of NAACP v. Claiborne Hardware, who protected the rights of African American citizens to participate in a business boycott against white business owners in Mississippi who directly discriminated against them in violation of the United States Constitution, including the 14th Amendment. However, this US Supreme Court case does not represent the BDS boycott model. In the Claiborne case, those who boycotted were the harmed and the businesses that were being boycotted were the ones who did the damage, turning that boycott into a main boycott to vindicate the constitutional rights of the boycotters.
The conflict between Israel and the Palestinians does not involve the United States Constitution, and those who participate in BDS activities in the US are participating in a secondary boycott to influence US foreign policy. Supreme Court International Longshoremen Association, AFL-CIO v. Allied Int’l, Inc., involved a secondary boycott in which workers refused to unload Soviet cargo to protest the Soviet Union’s war in Afghanistan. The Supreme Court of the United States ruled that the First Amendment did not protect the workers, since neither they nor the owners of the ship nor the American consumers who were being sanctioned by the boycott were part of the foreign dispute.
The State of Israel recently published a report, Terrorists in suits, which extensively details the material connections between those who run and finance the BDS Movement and designated terrorist entities. Anti-Israel terror groups such as Hamas and the Popular Front for the Liberation of Palestine participated in the formation of BDS and continue to manage BDS activity around the world. While a person has the First Amendment right to express a political opinion, the Supreme Court has ruled that this does not include the right to engage in promotional activities that constitute material support for terrorism.
The discriminatory nature of the BDS campaign is evident as BDS holds Israel to a double standard, and BDS advocates for actions that would lead to the end of Israel as the nation / state of the Jewish people. When combined with the close association between BDS and terrorist organizations, it is no wonder so many states have distanced themselves from BDS. The implementation of constitutionally protected anti-BDS legislation is a decision that allows states to express loudly and clearly the will of their citizens.
Supporters of BDS may claim that they are a social rights movement, but that does not mean that they are.
For those who insist on such an association, this quote from civil rights leader Martin Luther King is most appropriate: “When people criticize Zionists, they mean Jews. You are talking about anti-Semitism!”