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Anti-BDS Laws Violate Our Freedom

Photograph Source: Kate Ausburn – CC BY 2.0

Americans’ free-speech and other rights are being violated by state laws aimed at stifling the BDS (Boycott, Divestment, Sanctions) Movement against Israel’s illegal rule of Palestinians in the West Bank and Gaza Strip, both conquered over half a century ago. Twenty-eight states have enacted anti-BDS laws or executive orders that prohibit state agencies and state-financed entities, such as colleges, from doing business with any person or firm that hasn’t pledged never to boycott Israeli goods.

Appropriately, these laws have come under fire as violations of both free speech and the right to engage in boycotts, which consist of peaceful decisions not to buy products of a particular origin.

The latest case to hit the news is concerns journalist and filmmaker Abby Martin and the state of Georgia. Martin explained the case in a January 11 tweet:

After I was scheduled to give keynote speech [about the media, not about BDS] at an upcoming @GeorgiaSouthern [University] conference, organizers said I must comply w/ Georgia’s anti-BDS law & sign a contractual pledge to not boycott Israel. I refused & my talk was canceled. The event fell apart after colleagues supported me.

This sounds unbelievable, but it’s true. To speak at a Georgia institution that gets state tax money (with a minimum honorarium), you must pledge never to boycott Israel. Here’s how the Louis D. Brandeis Center for Human Rights under Law, which supports such laws, described Georgia’s situation:

Georgia’s State Senate passed an anti-BDS bill which states that “a company or individual seeking a procurement contract worth at least $1,000 with any state agency would have to certify playing no party in a boycott of Israel.” When making his claim for passage on the floor of the Senate, Senator Judson Hill cited companies like HP and Motorola as examples of companies that use Israeli technology, and stated that boycotting any products or companies that were developed in Israel goes hand in hand with discriminating against the people of Israel and the Jewish people as a whole. [Emphasis added.]

One would be hard-pressed to show that boycotting Israeli goods discriminates against all Jewish people. Many Jews support BDS and condemn Israel for its brutal mistreatment of the Palestinians. Sen. Hill merely repeated the pro-Israel smear that anti-Zionism equals anti-Semitism, which is patently absurd. As for BDS constituting discrimination against the people of Israel — perhaps it does (except for Israelis who oppose the occupation of Palestinian territory and support efforts to end it). But why don’t Georgians and other Americans have a right to do that? It’s a peaceful decision to not buy certain products, and it violates no one’s rights.

Martin’s exclusion from Georgia Southern is under legal challenge by her, the Council on American-Islamic Relations (CAIR), and the Partnership for Civil Justice Fund (PCJF).

At least one other legal challenge on this issue has succeeded on constitutional grounds, and similar laws are now in the courts. Regarding the successful case, MPN News reports,

In 2018, Bahia Amawi, a Houston-based children’s speech pathologist who worked with autistic, speech-impaired and other developmentally disabled children, lost her job after she refused to sign a similar document. Amawi had been at her job for nine years previously without a problem. CAIR took up Amawi’s case and managed to overturn every Texas boycott law on the grounds of their unconstitutionality and she is now free to return to work. They appear confident of a similar victory in Georgia.

Quoting a previous case, federal district Judge Robert Pitman ruled that the Texas anti-BDS law “threatens to suppress unpopular ideas” and “manipulate the public debate” on Israel and Palestine “through coercion rather than persuasion.” Judge Pitman added: “This the First Amendment does not allow.”

This issue ought to be a no-brainer. By what right does a state government require contractors, including speakers, to sign what is in effect a loyalty oath to Israel (or another other country)? That those laws have passed state legislatures and been signed by governors is more evidence of the influence — dare I say power? — the Israel lobby routinely wields in American politics. The lobby along with the Israeli government works overtime to destroy the BDS movement and discredit the activists who participate in it. (See my “The Art of the Smear — The Israel Lobby Busted.”)

To address an objection (which I’ve already seen), anti-BDS laws are nothing like antidiscrimination laws that prohibit state agencies and state-funded entities from contracting with firms that practice racial, ethnic, religious, or sex discrimination. As long as states exist (hopefully for not too much longer) they will surely tax everyone without regard to race, ethnicity, religion, or sex. Therefore, it is wrong for the state — or tax-financed entities — to discriminate in hiring, contracting, etc., on the basis of those incidental characteristics. The liberal principle of equality before the law demands such nondiscrimination. But one cannot move from that reasonable principle to other kinds of conditions on contracting, particularly conditions that infringe the right to free speech (say, advocating BDS) or peaceful action (say, boycotting for any reason).

Finally, a word about BDS itself. The movement aptly models itself on the effort to boycott, divest from, and sanction South Africa during its apartheid days. Israel has deprived the Palestinians in the West Bank and Gaza Strip of their rights since the war of 1967. Gaza is a prison camp under a long-standing Israeli blockade, punctuated ever few years by full-blow military assault. Peaceful protesters in Gaza have been shot by Israeli military snipers from outside the prison fence, killing hundreds and wounding tens of thousands. The Palestinians in the West Bank have no rights and are subject to military surveillance and Jewish-only settlements and roads, as well as separation wall that snakes through the territory. It is naked apartheid in that Jews have full rights while Palestinians are treated like nonpersons. Meanwhile, Israeli officials, encouraged by the Trump administration, have been moving toward formal annexation of key parts of the West Bank. Thus, no mystery surrounds the selection of Israel for boycott and divestment. (The Palestinians inside Israel, 20 percent of the population, are treated no better than second-class citizens, which is not surprising since Israel bills itself as the state of the Jewish people everywhere, not the state of all its citizens regardless of religion or ethnicity.)

I have no problem with the B and the D, and I applaud those who refuse to do business with companies and individuals associated with the oppression of the Palestinians and who liquidate investments in Israeli firms. That’s a proper and peaceful exercise of their rights. But we advocates of liberty should draw the line at S — sanctions — because we should on principle reject the state’s power to impose sanctions on anyone. Sanctions punish people who don’t wish to boycott the targets. But the right to boycott logically entails the right not to boycott. Also, if the state has the sanction power, it will surely use it against targets we wouldn’t want targeted.

I propose a different S instead: Strip Israel of its $3.8 billion annual military appropriation.

More articles by:

Sheldon Richman, author of Coming to Palestine, keeps the blog Free Association and is a senior fellow and chair of the trustees of the Center for a Stateless Society, and a contributing editor at Antiwar.com.  He is also the Executive Editor of The Libertarian Institute.

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