In 2005 more than 170 Palestinian civil society organizations issued a worldwide call for boycott, divestment, and sanctions (BDS) of Israel until Israel meets three demands: end the occupation of all Arab lands, grant equal rights to Palestinian citizens of Israel, and recognize the right of Palestinian refugees to return to their homes.
The BDS call is part of the time-honored nonviolent tradition of addressing injustice and oppression, similar to the U.S. civil rights movement and the movement against apartheid in South Africa. And like those movements, the Palestinian BDS movement is not directed against any ethnic or religious group but against a system of oppression.The BDS movement rejects hatred against the Jewish people just as the civil rights movement and the anti-apartheid movement rejected hatred against white people.
Israel has long feared nonviolent Palestinian resistance, recognizing its ability to galvanize world opinion and discredit the legitimacy of Israel’s apartheid project. In reaction to the BDS call, the Israeli government has created a cabinet-level position to spread Israeli propaganda ("hasbara" in Hebrew) and is now spending millions of dollars to attack the nonviolent BDS movement.
Using its surrogates in Israeli lobbies throughout the Western world, the anti-BDS effort combines propaganda and "lawfare," a term coined to describe efforts to use lawmakers and the judicial system as instruments of harassment. A frivolous lawsuit against the Olympia Food Co-op in Washington State because of its decision to boycott Israeli goods was one of the first instances of the use of lawfare against BDS.
More recently the anti-BDS lawfare campaign has taken the form of introducing bills in city, state, or federal legislatures to punish organizations or corporations that support human rights for Palestinians.
As of mid-2016, bills or resolutions have been either introduced or passed in at least 21 states and in the U.S. Congress. In one instance, after an anti-BDS bill got bogged down in committee due to concerns over violations of civil liberties, New York Governor Andrew Cuomo took an executive action, issuing an order to create a blacklist of institutions or businesses that “engage in or promote” BDS. The order mandated New York State to withdraw from or forego investments in those on the blacklist.
Legal experts point out that all of the anti-BDS lawfare efforts to date violate the protection of free speech guaranteed in the First Amendment to the U.S. Constitution. The right to boycott was specifically cited in a 1982 U.S. Supreme Court decision known as NAACP vs. Claiborne Hardware Co.In that case, the black community in Claiborne County, Mississippi, initiated a boycott against white-owned businesses following the police shooting of a young black man. The businesses sued the NAACP in retaliation, but the U.S. Supreme Court upheld the boycott as a protected First Amendment right. The Court ruled that state action “against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights” was impermissible under our Constitution.
The pro-Israel lobby in this country is trying to undermine Americans’ First Amendment rights. The lobby’s actions mirror the behavior of the Israeli government toward its Palestinian citizens and Palestinians living under its military occupation in Gaza and the West Bank. Palestinian citizens of Israel, including journalists, have been arrested and detained simply for posting their opinions on Israel’s discriminatory system on Facebook. For Palestinians living under military occupation, the Israeli military has issued numerous orders curbing their fundamental rights to freedom of speech, freedom of assembly and freedom of the press.
In 2010, Seattle got a taste of the assault on First Amendment rights when supporters of the Israeli government pressured political figures to ban SeaMAC’s previously approved bus ad that called attention to the war crimes Israel committed during its 2008-9 assault on Gaza.
Now the Israeli government and its U.S. lobby seek to take away our right to boycott.
Numerous legal organizations have expressed opposition to the wave of anti-BDS legislation and are openly campaigning against it. Among them are the American Civil Liberties Union (ACLU), the Center for Constitutional Rights, the National Lawyers Guild, and Palestine Legal. These legal experts have also challenged the claim made by some spokespersons for pro-Israel groups who say that BDS is now illegal. None of the legislation criminalizes individual behavior or seeks to curb an individual’s right to boycott Israel or Israeli-made products. Instead the bills seek to penalize institutions and corporations cooperating with BDS. Legal observers have compared the blacklists created by the legislation to the infamous Red-scare tactics of U.S. Senator Joseph McCarthy in the 1950s.
For example, First Amendment rights were cited in a July 5, 2016 editorial opposing anti-BDS legislation in the Los Angeles Times. Noting that although “the Supreme Court has held that government may engage in its own ‘speech’ and express its own opinions, it also has held that government may not deny a benefit to a person (or a company) because he holds the ‘wrong’ opinion.” The Times editorial added, “In our view, denying state business to an otherwise qualified contractor simply based on its views about Israel — and its participation in a legal boycott — goes beyond ‘government speech’ and raises serious constitutional concerns. . . . Politicians are free to denounce BDS if they choose. But they must do so without infringing on the rights of their constituents.”
Anti-BDS laws would penalize religious institutions that have endorsed divestment from companies profiting from Israel’s occupation and that boycott products made in Israel’s illegal settlements. Some religious groups have fought back against the Cuomo blacklist in New York by proudly admitting their support of the BDS movement. The New York Conference of the United Church of Christ, for example, asked Governor Cuomo to rescind his executive order, boldly noting that the United Church of Christ should be at the top of the blacklist because of its 2015 resolution to divest from “companies that profit from or that are complicit in violations of human rights arising from the occupation of the Palestinian Territories by the state of Israel,” and to “boycott goods produced in or using the facilities of illegal settlements located in the West Bank.”
Similarly, the Pension Board of the United Methodist Church recommended divesting from Israeli banks because of their role in financing illegal settlements. The Alliance of Baptists in April 2016 “affirmed the use of nonviolent boycott, divestment, and sanctions (BDS) strategies and comprehensive education and advocacy programs to end the 49-year Israeli occupation of Palestinian land.”And the General Assembly of the Presbyterian Church USA voted by 70 percent in June 2016 to engage in “prayerful study” of the Palestinian call for BDS, rejecting an effort to condemn the BDS movement and the tactic of boycott, which the church has long upheld in other instances of human rights violations.
The anti-democratic trend of these attempts to outlaw BDS has even engendered splits within the Zionist movement in the United States. Anti-Defamation League national director Abe Foxman, long a stalwart defender of Israel’s human rights abuses, wrote in 2015 that anti-BDS legislation “strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down.” Under some of the state legislation introduced, even Israeli businesses could be blacklisted. For example, a law passed in Indiana would require the state pension fund to divest from companies that no longer operate in the occupied West Bank due to BDS pressure. That provision could implicate any Israeli firm that withdrew from Israel’s illegal settlements because it, too, decided to withdraw support from the occupation or heeded world opinion regarding human rights violations.
The anti-BDS efforts in the United States are an outrageous, reprehensible, and underhanded threat to our democratic rights. These efforts, however, also give supporters of Palestinian rights the opportunity to educate Americans about the anti-democratic and repressive nature of the Israeli government and the pro-Israel lobby. Israel’s government routinely violates the free speech rights of Palestinians, subjugates them under a violent military occupation, denies equal rights to Palestinians within Israel, and prevents Palestinian refugees from returning to their homes. It’s no wonder that citizens of the world want to take part in the global BDS movement.