In recent years, there have been waves of legislation introduced in local, state, and federal legislatures aimed at punishing and suppressing Palestine human rights activism, and Israel advocacy groups have indicated that campaigns to introduce and pass anti-BDS bills are being organized in dozens of other states.[1] While we oppose any attempt to undermine or punish human rights activism, it is crucial for Palestinian and Palestine solidarity activists to understand that these laws do not affect the right of individuals and groups in the US to boycott Israel or advocate for BDS.

Boycotts have long played a significant role in U.S. history, and the Supreme Court has held that boycotts to effect political, social, and economic change are protected by the First Amendment of the Constitution.[2] The call for a boycott of Israel is based on Israel’s human rights violations, and is intended to effect social and political change. The Constitution is the “law of the land,” so federal, state, and local laws cannot take away your constitutional rights.

Because political boycotts of Israel are constitutionally protected, legislative efforts to punish or suppress BDS often infringe on constitutional principles. This is one of the reasons why most efforts to pass anti-BDS laws fail. For example, despite the introduction of at least nine anti-BDS initiatives in 2014, not a single bill became law.

In December 2013, the American Studies Association (ASA) became the second U.S. academic association to endorse an academic boycott of Israel (the Association for Asian American Studies was the first).[3] In response, lawmakers in Congress and seven states introduced legislation aimed at punishing or condemning the ASA and academic boycotts more generally.[4] While none of the bills became law, some state legislative chambers passed non-binding resolutions condemning the ASA’s action.

+ The Anti-Academic Boycott Bills

Bills introduced in Congress, New York, Illinois, and Maryland sought to defund or reduce government funding to colleges and universities that fund or subsidize activities and participation in groups, including the ASA, that endorse academic boycotts of Israel. Palestine Legal joined Palestine solidarity activists, civil rights and civil liberties groups, academic associations, and teachers unions to challenge these bills, arguing that they were unconstitutional attempts to punish protected speech. In a letter to New York legislators, for example, legal organizations wrote, “a public official’s denial of funding, where motivated by a desire to suppress speech, is prohibited by the First Amendment.”[5]

None of the 2014 proposed bills aimed at countering the ASA’s boycott became law. This was perhaps an acknowledgement by legislators that any law withholding government funds from colleges or universities to punish speech unpopular with lawmakers would violate the First Amendment and would likely be struck down in court as unconstitutional.

+ Non-Binding Resolutions

While none of the 2014 bills became law, non-binding resolutions condemning academic boycotts passed in legislative chambers in South Carolina, Pennsylvania and Florida.[6] Similarly, non-binding language condemning the academic boycotts was included in Maryland’s 2014 state budget.[7] While Palestine Legal opposes any attempt by government to condemn, counter, or punish human rights activism, it is crucial to recognize that non-binding resolutions have no effect on your right to criticize Israel, to boycott Israel, or to advocate for BDS.

Anti-BDS provisions included in the federal Trade Promotions Authority (TPA) law

In June 2015, President Obama signed the TPA into law. This broad free trade law included provisions opposing BDS and making it a principle trade objective during negotiations with the European Union for the United States to discourage “politically-motivated actions to boycott, divest from, or sanction” Israel and “Israeli-controlled territories,”[8] the latter phrase being a reference to BDS campaigns targeting Israeli settlements in Occupied Palestinian Territory. The anti-BDS provisions in the TPA were adapted from a bill introduced by Congressman Roskam (R-IL) in early 2015.[9] That original bill contained additional provisions, including various reporting requirements, which were not included in the TPA and therefore did not become law.

The exact impact the anti-BDS provisions of the TPA will have on trade negotiations with the E.U. is yet to be determined. However, the Obama Administration has indicated that it will not interpret the new law in a way that would legitimize settlements, noting that “[t]he U.S. government has never defended or supported Israeli settlements or activity associated with them.”[10] Palestinian and Palestine solidarity activists in the U.S. should know, however, that this new law does not affect your right to criticize Israel, boycott Israel, or advocate for BDS.

For a more detailed description of the anti-BDS provisions in the TPA, visit our FAQ.

Illinois enacts first anti-BDS state law

On July 23, 2015, Illinois Governor Bruce Rauner signed the country’s first explicitly anti-BDS state law. This new law requires the creation of a state-run blacklist of foreign companies that boycott Israel and compels the state’s pension fund to divest from those companies. Because this new law represents an attempt by government to use financial levers to punish or dissuade speech that is unpopular with elected officials, it raises serious constitutional concerns. Companies that embrace principled and ethical business practices – often as a result of grassroots activist pressure – should be rewarded by government, not sanctioned.

Palestine solidarity activists should keep two things in mind. First, this law does not prohibit you from criticizing Israel, boycotting Israel, or advocating for BDS. As stated above, the U.S. Constitution protects your right to do each of those, and no law can infringe on that right.

Second, the original version of the bill was substantially different from the final bill that became law. The original version was worse: it prohibited the state of Illinois from contracting or doing any business with companies that boycott Israel, while the final bill only prohibits state pension funds from investing in foreign companies that boycott Israel. That initial approach, which would have had a more direct effect on companies that embrace BDS, was rejected after Palestinian and Palestine solidarity activists, along with civil rights and civil liberties organizations, successfully organized against it. The final bill will likely have a limited effect.

South Carolina prohibits the state from doing business with companies engaged in discriminatory boycotts

On June 4, South Carolina Governor Nikki Haley signed a law prohibiting any public entity or agency in the state from doing business with companies that engage in boycotts motivated by the race, color, religion, gender, or national origin of the targeted person or entity.[11] While this was intended as an anti-BDS law,[12] it is an anti-discrimination law that makes no mention of Israel, Palestine, or the BDS movement. It has no practical effect on BDS. The law does not affect BDS for two reasons. First, the law simply does not apply to companies that boycott Israel for its human rights abuses. The law prohibits public entities from doing business with companies that engage in boycotts because of the target’s “protected class” (i.e., race, color, national origin). BDS campaigns do not advocate for boycotts of Israel because of a protected class. Rather, the BDS movement advocates for boycotts of Israel because of the Israeli government’s failure to comply with international law and its failure to respect the rights of Palestinians.

Second, if South Carolina used the law to deny a government contract to a company that is engaged in a politically-motivated boycott of Israel, the law would likely be found unconstitutional if challenged. Anti-discrimination laws that prohibit boycotts designed to achieve unlawful objectives may be constitutionally permissible.[13] However, political, social, and economic boycotts designed to secure governmental action to vindicate legitimate rights – just like the NAACP boycott in the Supreme Court case of Claiborne – cannot be prohibited by government regulation. Such boycotts are unquestionably protected by the First Amendment.[14] While there may be valid anti-discrimination applications of South Carolina’s new law, any attempt to stifle speech would likely violate the Constitution.

Non-Binding Resolutions

So far in 2015, non-binding resolutions attacking the BDS movement have passed in state legislative chambers in Indiana, Tennessee, Pennsylvania, and New York.[15] A non-binding resolution calling on county pension funds to divest from foreign companies that boycott Israel also passed in Cook County, Illinois.[16] These resolutions often wrongly equate BDS with anti-Semitism, and enumerate several condemnations of BDS.

Non-binding resolutions against BDS are troubling. They are government-sponsored statements critical of First Amendment-protected speech and conduct in favor of human rights. Our government should be in the business of supporting human rights advocacy, not condemning it. Though these non-binding resolutions have no practical effect, Palestine Legal is concerned that official government statements condemning BDS can have a chilling effect on activists’ speech. It is crucial for Palestine solidarity activists to understand that non-binding resolutions have no effect on your rights. They do not give the government the authority to do anything, and they do not infringe on your right to criticize Israel, boycott Israel, or advocate for BDS.

Additional bills and non-binding resolutions still pending in several states

As of this writing, anti-BDS bills and resolutions have been introduced – but have yet to pass – in the US Congress, New Jersey, Pennsylvania, and New York. Organizing efforts to counter these proposals are underway. If you have questions about these initiatives, please contact us at info@palestinelegal.org. If you are aware of anti-BDS legislation in other states, please contact us.

[1] Proclaiming Justice for the Nations, Anti-BDS States, http://www.pjtn.org/anti-bds-states/.

[2] NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).

[3] See Palestine Legal, American Studies Association Attacked for Academic Boycott of Israel, March 10, 2015, http://palestinelegal.org/case-studies/2015/3/10/draft-american-studies-association-withstood-severe-backlash-for-its-position-in-support-of-the-academic-boycott.

[4] Id.

[5] See Center for Constitutional Rights, Letter: CCR and NLG-NYC Appeal to New York Assembly to Oppose Amended Anti-Boycott Bill, Feb 20, 2014, http://ccrjustice.org/home/get-involved/tools-resources/inside-ccr/letter-ccr-and-nlg-nyc-appeal-new-york-assembly-oppose.

[6] See Palestine Legal, supra note 2.

[7] Id.

[8] See Palestine Legal, How does the Trade Promotion Authority (TPA) Law Affect BDS?, July 1, 2015, http://palestinelegal.org/news/2015/7/1/how-does-the-trade-promotion-authority-tpa-law-affect-bds.

[9] Peter Roskam, Press Release, Roskam, Vargas Unveil U.S.-Israel Trade and Commercial Enhancement Act, Feb. 10, 2015, http://roskam.house.gov/media-center/press-releases/roskam-vargas-unveil-us-israel-trade-and-commercial-enhancement-act.

[10] Id.

[11] The text of the law can be found here: http://www.scstatehouse.gov/sess121_2015-2016/bills/3583.htm.

[12] See Sol Rieger, Congress, State Legislators Seeking Boycott Against Israeli Boycotters, JPUpdates, June 8, 2015, http://jpupdates.com/2015/06/08/congress-state-legislators-seeking-boycott-against-israeli-boycotters; TheTower, South Carolina Governor Signs Anti-Boycott Bill, June 5, 2015, http://www.thetower.org/2126-south-carolina-governor-signs-anti-boycott-bill; Eugene Kontorovich, South Carolina passes historic anti-boycott law, Washington Post, June 5, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/05/south-carolina-passes-historic-anti-boycott-law.

[13] See, for example, Jews for Jesus, Inc. v. Jewish Community Relations Council, Inc., 968 F.2d 286 (2d Cir. 1992).

[14] The Supreme Court has also held that the government cannot punish its contractors based on their political beliefs, associations, and activities. O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

[15] SR 74/HR 59 in Indiana; SJR 1070 in Tennessee; HR 370 in Pennsylvania; and K705 in New York.

[16] Cook County Res. 15-4701.