How The Split Over BDS Laws Has Come To Test The Limits Of Free Speech

What began as a move by states to fight the BDS (boycott, divestment and sanctions) movement against Israel has morphed into a fight over free speech that has divided many in the Jewish community who oppose the BDS movement.

“We are strongly opposed to any legislation at the federal or state level that seeks to criminalize or penalize BDS activities,” said Logan Bayroff, a spokesman for J Street.

“Anyone who cares about a democratic Israel understands that legislation that gags free speech opposing settlements is just wrong,” said Daniel Sokatch, CEO of the New Israel Fund.

“Those of us who are committed both to the future of Israel and to free speech must oppose this wrong-headed and dangerous federal and state legislation, which penalizes Americans for nonviolent political action and speech,” said Rabbi Jill Jacobs, director of T’ruah: The Rabbinic Call for Human Rights.

But Malcolm Hoenlein, executive vice chairman of the Conference of Presidents of Major American Jewish Organizations, insisted, “You don’t have free speech to engage in hate and incitement without limits. These bills protect against restrictions imposed by the BDS movement and enable people to engage freely in trade and interactions that the BDS movement opposes.”

In a statement, the Anti-Defamation League said it “strongly supports anti-BDS measures because we believe that the BDS movement is anti-Israel and anti-Semitic.”

The American Jewish Committee has consistently applauded states that have adopted anti-BDS laws. And Marc Stern, its general counsel, wrote in a brief appealing a federal court ruling that struck down as unconstitutional an anti-BDS law in Arizona: “Arizona lawmakers, like state officials across the country, recognize that the BDS campaign aims to single out Israel for punitive action and does not offer a path to achieve Israeli-Palestinian peace. In fact, BDS movement leadership seeks and has actively promoted the elimination of Israel as a Jewish state.”

Both the Arizona and Kansas anti-BDS laws were ruled unconstitutional by federal courts after the American Civil Liberties Union sued to overturn them on the grounds of free speech. Last week, it sued Texas in behalf of four residents challenging that state’s anti-BDS law that requires government contractors to certify that they are not engaged in boycotts of Israel or territories controlled by Israel. It contended the law violates the First Amendment’s protection against government intrusion into political speech.

A separate suit was filed against the Texas law by Bahia Amawi, a speech language pathologist who has been contracting with the Pflugerville Independent School District for nine years. She has been conducting bilingual Arabic evaluations and early childhood evaluations for Arabic-speaking children. When she was presented with her school contract this year, it contained a rider that required her to sign a statement saying she does not and would not boycott Israel for the duration of the contract. She refused and was terminated.

In her suit, which also names the school district, Amawi, described by her lawyer as a Palestinian-American who has family living in the West Bank, said she “advocates for boycotts of Israel due to Israel’s continuing violations of international law in its treatment of Palestinians. … Speech and advocacy related to the Israel-Palestine conflict is core political speech on a matter of public concern entitled to the highest levels of constitutional protection.”

The suit noted that the United Nations Security Council on Dec. 23, 2016, adopted a resolution condemning Israeli settlements in the “Occupied Palestinian Territories” and said Israeli settlements “constitute a flagrant violation of international law.” The suit said the BDS movement “seeks the peaceful end of Israeli discrimination against and maltreatment of Palestinians” and encourages economic divestment from institutions that are not in compliance with established international law related to Israel’s occupation of Palestine.”

It makes no mention of what Hoenlein said is BDS’ goal — Israel’s demise. He said BDS has not launched “an attack on Israel that is restricted to the territories, but it challenges Israel’s right to exist. And when you question them, they won’t say they accept Israel in the 1967 or even the 1948 borders because they don’t accept Israel’s right to exist.”

Amawi’s lawyer, John T. Floyd, termed the Texas law “a very strange piece of legislation because it is obviously unconstitutional on its face. It appears it was passed to gain cheap political points from a donor base.”

Another ACLU suit seeks to overturn as unconstitutional the anti-boycott law in Arkansas, noted Lara Friedman, president of the Foundation for Middle East Peace, an organization that takes no position on BDS.

In an interview and in an article, Friedman addressed with what she said were problems with the anti-BDS laws.

“Lawmakers from both parties are working together to erode the First Amendment in a joint effort to create a new political free speech exception for Israel,” she wrote. “The potential ramifications of this effort are far-reaching and should provoke deep bipartisan alarm.

“In Congress, these efforts take the form, most prominently, of pending legislation —  long a key element of AIPAC’s legislative agenda — that would criminalize many voluntary boycotts of Israel or Israeli settlements, if the decision to boycott is undertaken in support of a call by the United Nations or the European Union.”

But Hoenlein said the proposed federal law is “merely an extension” of the federal anti-boycott law developed to counter the Arab League’s boycott of Israel that has been in effect since the 1970s.

A total of 26 states have adopted anti-boycott laws since 2016. Some were done through legislation and some, like New York’s, by executive order. Some involve contracting laws and others involve restrictions on the investment of state pension funds.

A spokeswoman for New York Gov. Andrew Cuomo told The Jewish Week in an email that the state is “not obligated to affirmatively invest in companies that support BDS. When it comes to our own investment portfolio, we stand by our executive order and will continue to vigorously defend it.”

In Congress, the Israel Anti-Boycott Act has been proposed and although both the House and Senate have different versions, The Jewish Week has learned that a new bill has been written that is acceptable to the leadership of both houses of Congress. The partial government shutdown has put on hold further legislative action this year. Should the bill not be pass this year, sources on Capitol Hill believe it would have broad support if introduced next year.

Although the laws in both Arizona and Kansas were ruled unconstitutional, the Kansas law was revised and has not been challenged, according to Stern of the AJC.

He said the revised law narrows the scope of the legislation. It restricts it to companies with 10 or more employees that have a state contract worth more than $100,000. Thus, Stern said, if a company “has a contract to provide lunches to schools, the company cannot boycott Israeli food products. But a company asked to buy aspirin for the office can decide not to buy from Israel.”

“That is the way we fixed the law in Kansas and we are going to try to fix it in other states as well,” he said. “It just didn’t occur to us how many things states buy with contracts. … We think that contracting laws are eminently fixable. I don’t think the pension laws need to be fixed.”

Asked about the Jewish groups that have come out against the anti-boycott laws, Stern said: “We disagree with them; it’s unfortunate they are taking that position.”

Regarding a story in the Forward that reported there had been dissention within the ADL about these laws in 2016, with one staff member writing that they are “ineffective, unworkable, unconstitutional and bad for the Jewish community,” Stern replied: “You would not want Jewish organizations not be able to have full and vigorous discussions about the implications of what they do. People have differences, and it is a great disservice to intelligent policy making that such leaks occur.”