(November 17, 2021 / JNS) The post-Holocaust moratorium on openly expressing anti-Semitism is over. Even where blatant targeting of Jews remains unfashionable, it often flourishes masquerading as anti-Israelism. Its latest incarnation is the BDS campaign. States can and should help fight this stealthy discrimination.
Even as more Arab countries recognize Israel, Israel’s high-tech economy flourishes and competing Palestinian leaderships achieve nothing positive for their people, BDS warriors inside and outside the Middle East ramp up a rejectionist narrative painting Israel as a pariah and its supporters (read, “Jews”) as the devil’s handmaidens. The strategy is not just to harm Israel’s economy, but to destroy political and moral support for the continued existence of the world’s sole Jewish state. As for the goal, former BDS co-founder and Hamas leader Omar Barghouti explained: “definitely, most definitely, we oppose a Jewish state in any part of Palestine.”
Ben & Jerry’s is the first high-profile company to buy into BDS. Judging by the recent success that ideology has had in penetrating Western business culture, it won’t be the last. Like other ideologies, BDS blames successful people and societies for their success, presumes the unsuccessful bear no responsibility for failure and, in fact, blames the successful for others’ failure.
But many states are fighting back. Thirty-five of them have passed anti-BDS laws, resolutions or executive orders opposing boycott, divestment, and/or sanctions against Israel. Some are modeled on anti-boycott legislation the United States passed back in the 1970s to counteract the Arab boycott. U.S. law forbids taxpayers from participating in a foreign boycott of Israel.
Anti-Israel groups have targeted anti-BDS laws for extermination. In the course of litigation, they have shone a spotlight on the laws’ strengths and weaknesses. Here are some suggestions for strengthening anti-BDS legislation consistent with First Amendment rights.
Include “de minimis” exceptions: Early challenges raised underwhelming claims like an individual public-school contractor asserting her right not to buy Sabra hummus. Arizona and Texas overcame legal challenges after their laws were narrowed to apply only to companies having 10 or more employees, and contracts over $100,000. Texas also excluded sole proprietorships from coverage.
Clearly exempt speech activities: Anti-BDS laws should clearly state that they do not prohibit pro-BDS speech, demonstrations or other core First Amendment activity, only economic activity. The laws should also exclude activities of a state contractor’s employees, and, where the contractor is a corporation, the corporation’s owners, officers and directors from coverage under the act.
Narrowly draw catch-all provisions: A few courts have harped on standard legislative catch-all phrases (like “or other actions that … ”) in anti-BDS laws. Statutes should be carefully worded to make clear that these provisions refer strictly to commercial or economic activities, not core First Amendment activity.
No boycott with state funds: Anti-BDS laws should clearly bar investing state funds (like state employee pension funds) in companies that boycott Israel. These types of provisions are an important factor behind the recent state divestments in Unilever, discomfiting the company that owns Ben & Jerry’s.
Give “anti-BDS” a positive nomenclature: Abortion opponents don’t market themselves as “anti-choice”; they call themselves “pro-life.” BDS opponents should do likewise. It would be one small step in turning the tide of the propaganda war, which BDS opponents are currently losing.
Embrace anti-BDS laws’ compelling anti-discriminatory purpose: Legal challenges to anti-BDS laws cast them as discriminatory. Instead of simply denying this, the laws’ proponents should explicitly identify BDS as discriminatory in method and intent, and anti-BDS laws as anti-discriminatory, as Professor Eugene Kontorovich has noted. BDS is the disease; narrowly-tailored anti-BDS laws are part of the cure.
How to do this?
Anti-BDS laws should be prefaced with legislative findings making the case. For example, findings could detail the recent increase in violent anti-Semitic hate crimes, including murder; the International Holocaust Remembrance Alliance (IHRA) working definition of anti-Semitism, which includes demonizing Israel, challenging its fundamental legitimacy (as opposed to particular policies), and applying double standards against it; the U.N. report linking BDS to anti-Semitism; and AMCHA’s report detailing connections between BDS and increased anti-Semitic harassment on campus. The laws should make the point that by fighting BDS, anti-BDS laws aim to fight discrimination against Jews.
To give added muscle to the anti-discriminatory purpose, states should consider incorporating provisions into anti-BDS laws combating high-handed BDS tactics regularly practiced at state (and private) universities. Examples of these tactics include shutting down pro-Israel events by physical force and harassing interruptions; discriminatory harassment of Jews generally; requiring students to parrot professors’ anti-Israel political attitudes; fostering a climate that chills access to factual information about Israel and denies students the chance to study in Israel; and foreclosing debate while disenfranchising Jews by scheduling BDS resolution votes during Jewish holidays. The laws should mandate sanctions against state universities that fail to protect and vindicate the First Amendment and Equal Protection rights of all students and faculty, including Jews.
Where once Jews were portrayed as uniquely evil people, today Israel is castigated as a uniquely evil state and Jews are condemned “because they support Israel.” States can and should push back against such insidious discrimination.
Johanna Markind is a research editor and counsel at Legal Insurrection Foundation. She is an attorney, researcher and writer who has worked for the U.S. Department of Justice, as well as in private practice.
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