These days, in too many places in the "land of the free," you can be a teacher, or you can support Palestinian human rights. But in states with anti-BDS legislation, you can't do both-- at least not to the extent that the First Amendment allows.
But before we discuss the issue of anti-BDS legislation, we should remind ourselves of some important facts. The First Amendment prohibits Congress from making laws that abridge the freedom of speech or the right of the people to peaceably assemble and petition the government for a redress of grievances. The same prohibition applies to state governments under what’s known as the Incorporation Doctrine. The Supreme Court held that the First Amendment protections extend o the right to boycott in NAACP v. Clairborne Hardware Co., 458 US 886 (1982). The ACLU states that boycotting is “a form of collective action that allows ordinary people to make their voices heard.”
Boycotts have been instrumental in effecting positive social change throughout American history and should remain a viable option for non-violent social justice movements. However, in recent years state and federal legislatures have taken aim at this pivotal right. Currently, 30 states have passed or introduced legislation that either restricts or condemns participation in the international Boycott, Divestment, and Sanctions (BDS) movement, which is a nonviolent call initiated by Palestinian civil society leaders “that seeks to apply economic and political pressure on Israel” to respect Palestinian rights and uphold international law.
Earlier this month the Senate passed S.1. “Strengthening America’s Security in the Middle East Act”, which includes provisions directed at the BDS movement. Under title VII of the bill, the “Combating BDS Act,” Congress permits state and local governments to divest from and prohibit contracts with “entities” that participate in BDS activities.
At the state level, we are following anti-BDS legislation in 10 states: Arizona, Kansas, Kentucky, Missouri, Mississippi, Montana, Nevada, New York, Oregon, and Texas and the legislation is progressing. Bills were recently introduced in Kentucky and Missouri, advanced in Arizona and Nevada, and passed in the Mississippi House. The legislation varies from creating a list of “entities” that have participated in the BDS movement and prohibiting public bodies from entering contracts with such entities to prohibiting colleges and universities to use state aid to fund or provide membership in academic institutions that are boycotting a country. While some of the states with new legislation are among the 26 that have already enacted anti-BDS laws, this new batch of legislation furthers an upsetting narrative.
The Senate passage of the Combating BDS Act, combined with recent backlash against Members of Congress who are sympathetic to Palestinian rights, criticize the Israeli government, or support BDS, such as Representatives Rashida Tlaib (D-MI-31) and Ilhan Omar (D-MN-5), normalizes and encourages continued state action against the BDS movement. The implications of the US Senate’s endorsement of First Amendment violations is applicable to not only supporters of Palestinian rights and the BDS movement, but to everyone. Regardless of your individual position on BDS, the right to free speech and to boycott are at serious risk and the continued proliferation of anti-BDS legislation in so many legislatures should be very concerning. It sets a worrying precedent for future infringement on the First Amendment.
Furthermore, Anti-BDS legislation limits the debate on US policy towards Israel and increases the possibility of conflation of advocacy for Palestine or criticism of the Israeli government, and anti-Semitism. This conflation, and multiple legislatures affirming it with anti-BDS legislation, limits the First Amendment rights of Palestinian human rights advocates. In a country where boycotts have defined key moments in our history, the possibility of lacking the freedom to advocate for the freedom of others is unacceptable.
Claire Bechtel is a 2019 Spring Intern at the Arab American Institute.
