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Anti-BDS Law and the 1st Amendment

Posted on 21 February 2019 by admin

In 2017, Texas Governor Greg Abbott signed into law House Bill 89, also known as the Anti-BDS (Boycott, Divestments and Sanctions) bill. The bill prohibits state agencies from contracting with, or investing funds in, companies that boycott Israel.
Now, the Anti-BDS law is being challenged on the basis that it violates the U.S. Constitution’s First Amendment Rights — specifically, freedom of speech. However, anti-BDS laws do not, and are not intended to, restrict an individual’s right to speak against Israel but rather to target the discriminatory commercial nature of the BDS boycott campaign.
Prohibition of
discriminatory practices
There is a long history of laws in the U.S. prohibiting discriminatory commercial activity targeting Israel. Such laws were designed to prevent entities from imposing misguided foreign policy in the U.S.; they apply to both individuals and companies, and restrict unauthorized commercial boycotts against foreign nations. While these federal anti-boycott laws apply to BDS boycotts, they have yet to be enforced against BDS.
Meanwhile, in response to the BDS’ anti-Israel stance, 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. As of this writing, 26 states currently have anti-BDS laws on the books, and additional states are considering adopting similar laws.
However, these state-supported 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.
Free speech violations? No.
Why, then, is the constitutionality of this law being challenged on the basis of free speech?
Those arguing that anti-BDS laws violate the First Amendment typically cite the 1982 U.S. Supreme Court case of NAACP v. Claiborne Hardware Co. In this case, African-American citizens in Mississippi could engage in a commercial boycott against white business owners who directly discriminated against African-American citizens. According to the U.S. Supreme Court, this action violated the Constitution.
However, the Claiborne and BDS boycott models are vastly different. In Claiborne, the boycotters were the injured parties, with the targeted businesses doing the damage. As such, the boycott was used to vindicate the African-Americans’ constitutional rights.
However, the Israeli/Palestinian conflict isn’t a constitutional issue. In addition, those engaging in BDS activity in the United States are involved with a secondary boycott: in other words, a boycott that isn’t directly between an aggrieved party and the party from whom they are seeking redress.
Another U.S. Supreme Court case, International Longshoremen’s Association, AFL-CIO v. Allied Int’l, Inc., focused on a secondary boycott. Workers refused to unload cargo from the Soviet Union as a form of protest against that country’s war in Afghanistan. The court ruled that the First Amendment did not protect the workers, since neither the workers, the ship’s owners, nor American consumers penalized by the boycott were a party to the foreign dispute.
Finally, others point to similarities between the BDS campaign against Israel and the boycott of South Africa during apartheid. Again, there are critical differences, the main one being that apartheid doesn’t exist in Israel. Additionally, while the U.S. officially sanctioned South Africa via a government-mandated boycott, the government has friendly relations with Israel. Israel is a strategic partner of the United States, and the U.S. government is against organized boycotts of Israel.
Challenging the challenges
The BDS campaign’s discriminatory nature is evident, as it advocates actions that would lead to the end of Israel as the nation/state of the Jewish people. Implementing constitutionally-protected anti-BDS legislation is a decision that allows states to express, loud and clear, the will of their citizens.
When it comes to the question of constitutionality, an Arkansas federal judge ruled in a recent case that the state’s 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.
Additionally, in defense of Arizona’s anti-BDS law, Zachor Legal Institute filed an amicus (friends of the court) brief in court, detailing the anti-Semitic, discriminatory nature of BDS and the direct connection between BDS founders and designated terrorist organizations. The Zachor Legal Institute supports First Amendment Rights, and supports anti-discrimination laws that focus on combating BDS.
Separately, the Israeli government recently issued a report “Terrorists in Suits,” detailing the ties between non-governmental organizations (NGOs) 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.
To conclude, while a person has a First Amendment right to express a political opinion, the Supreme Court has ruled that this does not include the right to engage in advocacy that constitutes material support to terror. As such, properly constructed anti-BDS laws are protected by the First Amendment, and we are confident the Texas law will withstand the current legal challenge.
Ron Machol is the COO of Zachor Legal Institute, an organization using the law to combat BDS; he can be reached at ron@zachorlegal.org. Charles D. Pulman is a Dallas attorney and Israel advocate.

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