Beginning in October 2017, in order to receive aid to rebuild after Hurricane Harvey, residents of Dickinson, Texas were required to verify that they would not boycott Israel. The city of Dickinson’s application form for hurricane repair funding included the following clause:
“By executing this Agreement below, the Applicant verifies that the Applicant:
(1) does not boycott Israel; and
(2) will not boycott Israel during the term of this Agreement.”
This was the only clause about political affiliation in the form and was a result of Texas passing a law in May banning state entities from contracting with businesses that boycott Israel. Though the Dickinson City Council voted to remove that requirement for homeowners, Dickinson’s city attorney said that businesses applying for relief funds must still vow not to boycott Israel to comply with the law.
Just to the north of Texas, the Kansas State Department of Education told a high school curriculum coach she must certify that she does not boycott Israel in order to help train other math teachers. When she refused to sign the document, she was told she could not participate in the training program, and thus, could not get paid.
In reading the above stories, one could easily confuse them for the McCarthy-era loyalty oaths of the 1940s and 1950s. Welcome to 2018, when your First Amendment rights are eroded if you are an advocate for Palestinian human rights.
Regardless of one’s views on Palestine/Israel and on the boycott movement in particular, such oaths, a direct result of anti-boycott legislation, threaten the rights of everyone in the U.S. What is this boycott movement, where did these U.S. laws come from, and what does exercising one’s constitutionally protected right to political association have to do with receiving hurricane assistance or training teachers in the U.S.?
In 2005, Palestinian civil society called for a Boycott, Divestment, and Sanctions (BDS) movement to impose non-violent political and economic pressure on Israel to comply with three goals:
1) Ending military occupation and colonization of Palestinian land;
2) Recognizing the rights of Palestinian citizens of Israel, who comprise about 20% of Israeli citizens (Israel has 30 laws that discriminate against them); and
3) Protecting the rights of Palestinian refugees to return to their homes, as stipulated by UN Resolution 194.
BDS continues to gain steam: US churches, including the Presbyterian Church (USA) and the United Methodist Church, along with major European banks, like Nordea and Danske Bank, voted to divest from companies on the boycott list. Prominent BDS supporters include Archbishop Desmond Tutu, Angela Davis, Naomi Klein, and Judith Butler. Noticing BDS’s success, in 2015 senior Israeli officials, including Prime Minister Benjamin Netanyahu declared BDS a strategic threat – language usually reserved to describe a nuclear Iran. The Israeli government approved a $72 million anti-BDS project, with funds coming from the Israeli government and donors abroad, such as Sheldon Adelson and Haim Saban.
During a 2016 trip to Israel, Texas Governor Greg Abbott promised Netanyahu that he would seek to pass the anti-BDS bill. This takes us full circle back to Texas and Kansas. As part of a campaign to curtail the success of BDS in the U.S., at least 102 anti-BDS measures have been introduced in state and local legislatures across the country. As of January 2018, 24 U.S. states have enacted anti-BDS laws. These bills accomplish at least one of the following:
- Prohibit individuals, non-profit organizations, and/or companies that support BDS from entering into contracts with state or local governments. An example of this is that the United Church of Christ or the Presbyterian Church (USA), supporters of BDS, could be prohibited from contracting with the state to run social services like soup kitchens.
- Prevent state pension funds from investing in companies that boycott Israel or Israeli settlements.
- Create blacklists of activists, non-profit organizations, and/or companies that are engaged in boycotts of Israel.
At the national level, the Israel Anti-Boycott Act, which was introduced in the Senate in March 2017, would make it a crime to support or even “furnish information about a boycott directed at Israel or its businesses called by the United Nations, the European Union or any other ‘international governmental organization.”’ Violators would be punished by civil and criminal penalties of up to $1 million and 20 years in prison.
These local and federal anti-BDS bills have stark ramifications on American civil rights and civil liberties because they violate protected First Amendment freedoms of speech and association. It is important to recall the history of boycotts in the U.S. and how pivotal they were to social change, from the Boston Tea Party, to the Montgomery bus boycott, to the divestment campaigns during apartheid South Africa. Just as each of these movements was a tactic to protest state policy, so too is the BDS movement a tactic to protest and apply pressure for Israel to change its state policies towards Palestinians.
The ACLU, which has filed multiple suits challenging these anti-BDS laws, explains that in NAACP v. Claiborne Hardware, a Supreme Court case about an organized boycott to protest white supremacy in Mississippi, the Court held that a political boycott is an exercise of the right to political association and is protected by the First Amendment. The ACLU argues that the precedent set by Claiborne should apply to anti-BDS legislation. In its complaint representing the Kansas schoolteacher, the ACLU argues that participation in the boycott is protected association and speech related to a matter of public concern, both of which are protected under the First Amendment. The ACLU’s complaint also argues that anti-BDS legislation violates the Equal Protection Clause of the Fourteenth Amendment, both on its face and as applied, because it engages in speaker-based discrimination and penalizes state contractors based on their exercise of fundamental First Amendment rights.
In response to the ACLU’s analysis of anti-BDS legislation, Senators Robert Portman and Ben Cardin have insisted that the Israel Anti-Boycott Act narrowly targets commercial activity rather than free speech. Proponents argue that cases like Rumsfeld v. Forum for Academic and Institutional Rights, Inc., which held that it was not a violation of free speech to condition federal aid to universities on providing equal access to military recruiters, should apply to BDS. In Rumsfeld, the court noted that the law at issue regulated conduct and not speech.
However, during oral arguments in Koonz v. Watson, the Kansas schoolteacher case, the judge distinguished Rumsfeld from the Kansas anti-BDS statute by stating that the Kansas law aims to regulate conduct that is “inherently expressive” because: “It is easy enough to associate plaintiff’s conduct with the message that the boycotters believe Israel should improve its treatment of Palestinians. And boycotts—like parades—have an expressive quality.” In addition, as the ACLU’s national legal and political directors argue, the federal bill imposes harsh penalties against both individuals and businesses who refuse to purchase goods from companies on the BDS list and who make it clear that they are doing so in support of the BDS movement. They argue that this clearly targets free speech and political beliefs, not commercial conduct.
It is also essential to debunk a falsehood about BDS: Proponents of the anti-BDS legislation often equate BDS with national origin discrimination and view anti-BDS legislation as a form of anti-discrimination legislation, while acknowledging that it may have a chilling effect on speech. However, the targets of the BDS movement are not chosen based on their national origin. Instead, BDS targets are chosen based on what they do. For example, multinational companies like Caterpillar, G4S, and Hewlett-Packard (not Israeli-owned companies) are on the boycott list because they profit from Israeli occupation of Palestinian land – an occupation that has resulted in a settlement industry that is illegal under international law.
Even if proponents of anti-BDS legislation distinguish the present case from Claiborne by saying that anti-BDS bills only withdraw a privilege from those participating in the boycott, the doctrine of unconstitutional conditions holds that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.” And as the ACLU states, prohibiting state contractors from receiving any government contracts based on their political beliefs and/or associations violates the First Amendment, both on its face and as applied.
Finally, anti-BDS legislation will have a chilling effect on Palestinian human rights advocates, including student activists, and will hurt businesses and individuals who become ineligible for state contracts because they refuse to sign a promise to refrain from boycotting Israel. Regardless of whether one approves of BDS as a tactic or views boycotters as free speech heroes, the anti-BDS bills seriously threaten the freedom of speech and association upon which our most basic civil rights and civil liberties rest.
Editor’s Note: The author’s name is not attached to this post because of an Israeli law barring BDS supporters from entering Israel.