Anti-BDS laws do not impede free speech
Texas’ anti-BDS (Boycott, Divestment and Sanctions) law opposing commercial boycotts against Israel is being challenged on the basis that it violates the First Amendment’s guarantee of freedom of speech.
We at the Zachor Legal Institute disagree with this position and also reject the notion that the BDS campaign is a civil rights movement.
Zachor Legal Institute supports the First Amendment and encourages states and the federal government to implement and enforce anti-discrimination laws that focus on combatting BDS. These laws are narrowly tailored anti-discrimination laws similar to many other anti-discrimination laws that protect, among other categories of people, women, racial minorities and LGBTQ individuals. All of these laws balance the right to free speech with the government’s obligation to protect classes of people from discrimination.
In a recent case, an Arkansas federal judge ruled that Arkansas’ anti-BDS law is constitutional and not a violation of free speech. This judge, for the first time in a challenge to a state anti-BDS law, analyzed relevant case law and subsequently came to the correct conclusion.
In response to the BDS movement’s discrimination against Israel, Texas and other states enacted laws that generally prohibit the state from using taxpayers’ money to contract with or invest in businesses that engage in commercial discrimination against Israel. Twenty-six states currently have anti-BDS laws, and additional states are considering adopting similar laws.
Anti-BDS laws do not and are not intended to restrict an individual’s right to speak against Israel. Rather, the laws target the discriminatory commercial nature of the BDS boycott campaign. To reinforce this point, a bill — House Bill 793 — has been filed in the Legislature to remove sole proprietorships from the coverage of the Texas’ current anti-BDS law.
These state anti-BDS laws do not infringe upon the First Amendment. There are many Supreme Court decisions that allow states to choose whom they do business with and to exclude discriminatory actions from First Amendment protection.
People who argue that state anti-BDS laws violate the First Amendment generally cite the 1982 U.S. Supreme Court case of NAACP v. Claiborne Hardware Co., which protected the rights of AfricanAmerican citizens in Mississippi to engage in a commercial boycott against white business owners who were directly discriminating against African-American citizens. However, this U.S. Supreme Court case does not represent the BDS boycott model. In the Claiborne case, the people boycotting were the injured parties and the businesses that were being boycotted were the ones doing the damage — thus making that boycott a primary boycott to vindicate the boycotters’ Constitutional rights.
Those who engage in BDS activity in the U.S. are participating in a secondary boycott — a boycott that is not directly between the aggrieved party and the party they are seeking redress from. Their goal is to influence U.S. foreign policy. The Supreme Court case International Longshoremen’s Association, AFL-CIO v. Allied Int’l, Inc . involved a secondary boycott where workers refused to unload Soviet cargo to protest the Soviet Union’s war in Afghanistan. The U.S. Supreme Court ruled that the First Amendment did not protect the workers, since neither they nor the ship’s owners nor the American consumers that were being penalized by the boycott were a party to the foreign dispute.
Furthermore, the Israeli government recently issued a report “Terrorists In Suits,” detailing the ties between nongovernmental organizations promoting BDS and terrorist organizations. Anti-Israel terrorist groups, such as Hamas and the Popular Front for the Liberation of Palestine, were involved in the formation of BDS and continue to manage BDS activity worldwide. While a person has a First Amendment right to express a political opinion, the Supreme Court has ruled that this right does not include the right to engage in advocacy that constitutes material support to terror.
BDS supporters may claim they are a civil rights movement, but that does not make it so.
Finally, the BDS campaign against Israel and the previous boycott of South Africa differ legally in a critical way. At the time of apartheid in South Africa, the U.S. officially sanctioned South Africa via a U.S. government mandated boycott. The case with Israel is opposite. The U.S. government maintains friendly relations with Israel, which is a strategic partner of the United States.
Properly constructed anti-BDS laws are fully protected by the First Amendment, as the recent Arkansas ruling clearly states. We believe that Texas’ law will fully withstand the current legal challenge. Machol is the COO of Zachor Legal Institute, an organization using the law to combat BDS; he can be reached at ron@zachorlegal.org. Pulman is a Texas attorney; he can be reached at cpulman@meadowscollier.com.