Why BDS Laws Don’t Violate Free Speech
The fate of a law is never sealed with its passage; even the best of laws can fall prey to misinterpretation and skewed enforcement.
That was the case in Dickinson, Texas, where government officials falsely interpreted legislation prohibiting state entities from doing business with organizations and companies that support the boycott, divestment and sanctions (BDS) movement against Israel.
Blame it on a lack of reading comprehension skills, incompetent legal advice or improper concerns about “freedom of speech.” For whatever reason, Dickinson officials are now requiring individuals to sign an application for a hurricane relief grant that reads in part:
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.
Just one problem. There is nothing in Texas House Bill 89 that prohibits individuals from supporting or participating in BDS activity.
But this is America. And we never pass up an opportunity to promote a political agenda and paint those who disagree with us as being enemies of freedom.
Currently, 22 states have passed legislation prohibiting them from doing business with, and/or investing in companies that participate in the BDS campaign, which singles out the Jewish state.
Since 1977, federal law has permitted civil penalties against US corporations that participate in boycott requests from foreign countries against US allies, or that make such requests themselves. There is nothing in any of these laws that restricts free speech or penalizes individuals or organizations for boycotting or advocating against Israel.
Northwestern University School of Law professor Eugene Kontorovich has addressed the constitutional concerns of free speech raised by the ACLU and other critics of certain anti-BDS legislation:
What these laws deal with is what states have deemed to be discriminatory business conduct and practices. When a company decides not to do business with someone because of its affiliation with Israel, [the company] is engaged in a form of impermissible bigotry and discrimination. The states are saying, “you’re allowed to discriminate. It’s America. You can discriminate. But we don’t have to subsidize your discrimination with taxpayer money.”
But factual interpretation of the law and the Constitution has not been a high priority for the American Civil Liberties Union ever since National Socialist Party of America v. Village of Skokie over 40 years ago. Guess who they defended?
Notwithstanding the ignorance of Dickinson officials, the Texas law itself — implemented correctly — is a moral imperative.
BDS is not about bettering the lives of Palestinians. Its only focus is to delegitimize and destroy the Jewish state, which the movement’s founders freely admit. For a US government entity, tolerating BDS is no different than tolerating racism, sexism or homophobia.
This upcoming weekend, the need for anti-BDS legislation in Texas, as well as in all 50 states, was made abundantly clear in Houston.
The fraudulently named Students for Justice in Palestine (SJP) hosted its national conference at the University of Houston — a public, taxpayer-funded institution of higher learning.
The SJP website is a survey course in the history of antisemitism. Despite its pledges to only oppose Israel and Zionism, “Zionist” and “Zionism” are code for Jews. Who are they kidding?
Dr. Martin Luther King, Jr., acknowledged this when in 1968 he told a Cambridge University student: “When people criticize Zionists, they mean Jews. You’re talking antisemitism.”
A study released in April by the antisemitism watchdog group AMCHA Initiative, revealed a rapidly growing correlation between antisemitism and pro-BDS activism. According to the study, college campuses with active anti-Israel groups such as Students for Justice in Palestine are overwhelmingly more likely to experience antisemitic activity compared to schools where BDS or other anti-Israel activism has no presence.
Still, spewing BDS hate is perfectly legal under the Texas anti-BDS law — as well as the legislation passed by the other 21 states. Individuals are free to publicly condemn Israel, and peddle as much antisemitic vitriol as their lungs will endure. Businesses are free to do the same.
Free speech is alive and well in the Lone Star State. The only thing the anti-BDS legislation does is protect the taxpayer from becoming complicit in hate speech and antisemitism.
Paul Miller is president and executive director of the news and public policy group Haym Salomon Center. Follow him on twitter @pauliespoint.
A version of this article was originally published by the Washington Times.