Combating BDS by Legislation: Different Approaches, Same Goal
New York Governor Andrew Cuomo recently issued an executive order directing state entities to divest all public funds from companies supporting the Boycott, Divestment and Sanctions (BDS) campaign against Israel, and to refrain in the future from doing business with such entities. In so doing, New York joined several other states that have taken some form of counter-boycott measure against BDS, in addition to more that are currently considering legislation to that effect. While these measures have each targeted the anti-Israel BDS movement, there exist some notable differences in their language and form.
Before examining these legal differences: I should state the obvious: governors and legislatures are morally and politically right to counter-boycott BDS. The so-called BDS movement is part of a broader campaign to delegitimize, demonize and discriminate against the nation state of the Jewish people, and to undermine any reasonable prospect of a negotiated peace between Israelis and Palestinians.
The claim of BDS advocates that their bigoted boycott is really about promoting international respect for human rights is demonstrably false. If BDS were concerned with human rights, it would target first the worst human-rights offenders and those regimes that permit no dissent or access to justice. But the so-called BDS movement does not target Iran, China, Belarus, Saudi Arabia, Cuba or other such offenders (indeed many BDS advocates seek to increase ties with Iran, Cuba and China, despite their horrid record on human rights). Instead, BDS targets only one nation: the democratic nation state of Israel, which, despite being subjected to terrorist attacks virtually on a daily basis, has a free press and an independent judiciary. No country faced with comparable threats has had a better record on human rights, of compliance with the rule of law and of efforts to reduce civilian casualties in armed conflicts.
Israel has also offered to end the occupation — as it did in Gaza — on numerous occasions in exchange for peace based on a two-state solution, but those offers have not been accepted by the Palestinian leadership, or by hardliners like Omar Barghouti, one of the leaders of BDS, who declared, “I am completely and categorically against binationalism because it assumes there are two nations with equal moral claims to the land.”
Israel, like every country including our own, is far from perfect — and I and other supporters of Israel have been critical of its flaws — but it has internal mechanisms for addressing its imperfections. There is no legitimate reason for singling it out for the kind of external discrimination represented by BDS.
One of BDS’s core components — the Academic and Cultural Boycott (“PACBI”) — encourages participants to disassociate from Israeli cultural, artistic and scientific institutions, and to blacklist individuals who are deemed too supportive of Israel. I recently learned that I, too, feature on this blacklist when Omar Barghouti refused to debate me in front of the Oxford Union. The PACBI guidelines endorse boycotting individuals who cross the BDS “picket lines” by cooperating with Israeli academic institutions or blacklisted individuals. They also encourage the boycott of all cultural and academic institutions or artists that promote “Brand Israel,” including, for example, the singer Matisyahu. Even more egregiously, PACBI calls for the boycott of institutions that promote “normalization projects” which do not sufficiently emphasize the injustice of the occupation, even if those projects aim for Israeli-Palestinian dialogue and reconciliation. The BDS movement also implicitly opposes a two-state solution by explicitly endorsing the so-called Palestinian right of return, which would in effect unwind nearly 40 years of negotiations, and destroy Israel as the nation state of the Jewish people.
In short, governors and state legislatures are right to combat BDS as a matter of public policy — BDS is immoral, discriminatory and undermines US interests abroad. Thus far, however, states have adopted different models in this effort. Most have adopted laws that make specific reference to Israel. Florida, for example, now requires the State Board of Administration to “identify all companies that are boycotting Israel,” to divest all public funds from those entities, and further prohibits “a state agency or local governmental entity from contracting services” from those companies. Other states have embraced more general provisions. California, for example, is considering legislation that forbids the state from doing business with companies that discriminate on the basis of nationality or national origin. Similarly, Alabama has passed a bill divesting from companies that boycott US allies, or nations that enjoy “normal trade” with the United States.
There are merits to both approaches. On the one hand, the obvious target of these laws is the anti-Israel BDS movement. After all, there is no significant boycott movement against another US ally. Including reference to Israel in the text of the bill helps cement the purpose of the legislation, and prevents state resources from being wasted identifying and combating small-scale boycott movements. On the other hand, legislation with non-specific language may have some benefits, as well, namely that it more directly reflects the legal principle at the heart of anti-BDS measures — that it is generally wrong to discriminate on the basis of nationality or national origin. Such language also mirrors federal anti-boycott laws, which penalize companies and individuals that participate in boycotts based on race, religion, sex, national origin or nationality.
Regardless, recent claims by the pro-BDS punditry that any anti-BDS regulations are McCarthyite is both misleading, and insulting to the victims of real McCarthyism who were punished for their ideas, speeches and associations, not for their actions in refusing to do business based on national origin. Yes, anti-BDS regulations often result in lists of companies that discriminate against Israel, just as there are lists today of store and building owners who refuse to do business with, for example, African-Americans, LGBTQs or Muslims. Proof is required that a business engaged in a discriminatory boycott by singling out Israeli entities, or individuals based on their national origin, or political convictions, and there is a process for challenging inclusion on any list. The only McCarthyist blacklist is that which has been complied by BDS enforcers — a list I am proud to be on — of supporters of Israel and of those who seek to “normalize” relations between Israelis and Palestinians.
To be clear: anti-BDS regulations should go no further than the counterboycott of companies that actually engage in discriminatory actions. No one, not even the most rabid BDS-activist, should face legal recriminations for expressing an opinion that is supportive of BDS, or for encouraging others to support BDS. Political speech — even bigoted, misguided political speech — is clearly protected by the constitution. The wording of Governor Cuomo’s executive order in this regard raises some red flags: if regulators target institutions for “promot[ing] others to engage in any [BDS] activity” by means of speech rather than economic pressure, the courts should strike down that provision, while upholding the remainder of the order. Similarly, the bill currently under consideration in the Kansas legislature that would defund academic institutions for funding student associations supportive of BDS impacts speech and association rights of pro-Palestinian students and faculty members. It should be revised to avoid any constitutional challenges.
That said, most anti-BDS measures are clearly directed at discriminatory business activities, and not at speech or advocacy. So applied, such counter-boycott regulations will promote political, artistic and cultural freedoms, by imposing economic sanctions on those BDS bigots who are seeking to suppress such freedoms by discriminating against Israeli, and pro-Israeli advocates, artists, cultural figures and businesses.
Portions of this op-ed were first published in The Daily Beast under the title “New York is Right to Counterboycott Anti-Israel Boycotters.”