Anti-BDS laws are constitutional
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 which guarantees freedom of expression.
The pro-Israel community fully supports the First Amendment to the Constitution. Anti-BDS laws are narrowly designed 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 business activity and the exercise of free speech, which is clearly highlighted in the course of fulfilling the government’s obligation to protect classes of people from discrimination.
In a January 2019 ruling, a federal judge in Arkansas agreed with this analysis and dismissed with prejudice a challenge to the state’s anti-BDS law.
There is a long history of laws in the US prohibiting discriminatory business activity directed at Israel. Over 40 years ago, in response to the Arab League boycott of Israel, amendments to the Export Administration Act and the Tax Reform Act of 1976 were implemented to prevent entities from imposing the wrong foreign policy on the US. They apply to both individuals and businesses and prohibit unauthorized trade boycotts against foreign nations.
In response to BDS discrimination against Israel, states have 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 business discrimination against Israel. BDS against Israel. Currently, more than half of all states have anti-BDS laws, and other states are considering adopting similar laws.
The 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 state residents 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, which protected the rights of African-American citizens to participate in a business boycott against white Mississippi business owners who directly discriminated against them in violation of the US Constitution, including the 14th Amendment. However, this The US Supreme Court case does not represent the BDS boycott model. In the Claiborne case, it was the harmed parties who were boycotting, and the businesses being boycotted were the ones doing the harm, making that boycott a primary boycott to vindicate the constitutional rights of the boycotters.
The conflict between Israel and the Palestinians does not involve the US Constitution, and those who engage in BDS activities in the US are engaging in a secondary boycott to influence US foreign policy. The case of the Supreme Court International Longshoremen’s Association, AFL-CIO v. Allied Int’l, Inc., engaged in a secondary boycott in which workers refused to unload Soviet cargo to protest the Soviet Union’s war in Afghanistan. The United States Supreme Court ruled that the First Amendment did not protect the workers, since neither they, nor the owners of the ships, nor the American consumers who were being penalized by the boycott were a party to the foreign dispute.
The State of Israel recently published a report, terrorists in suits, which extensively details the material connections between those who lead and finance the BDS Movement and designated terrorist entities. Anti-Israeli terrorist groups such as Hamas and the Popular Front for the Liberation of Palestine participated in the formation of BDS and continue to administer BDS activity around the world. While a person has a 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 of terrorism.
The discriminatory nature of the BDS campaign is evident as BDS holds Israel to double standards and BDS advocates actions that would lead to the end of Israel as a nation/state of the Jewish people. When combined with the close association between BDS and terrorist organizations, it is not surprising that so many states have distanced themselves from BDS. The implementation of constitutionally protected anti-BDS legislation is a decision that allows states to express loud and clear the will of their citizens.
BDS supporters may claim to be a social rights movement, but that doesn’t mean 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. They are talking about anti-Semitism!”