What to know about anti-BDS legislation

updated 4/4/2017

What to know about anti-BDS legislation

Some states have already enacted anti-BDS legislation.

Anti-BDS laws have been enacted in the following seventeen states: Alabama, Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Michigan, New Jersey, Ohio, Pennsylvania, Rhode Island and South Carolina. An anti-BDS executive order was signed by New York Governor Andrew Cuomo (we are seeking documents related to this order). 

Visit www.RightToBoycott.org for an overview of state legislation.

In 2016, activists successfully defeated anti-BDS legislation in the following states:

Maryland, Virginia, and Massachusetts.*

In New York, activists successfully stopped two anti-BDS bills from passing the legislature before Governor Cuomo signed an anti-BDS executive order. 

*Legislators may introduce new bills or revive old bills when the legislatures reconvene.

Other states are still considering anti-BDS bills.

Anti-BDS bills are pending in some states, including Texas, Washington, and Nevada, and new bills are expected in 2017.

Even some county legislatures have waded in to the debate.

Some counties have also considered anti-BDS bills. For example, one proposal was defeated in New Castle County, DE. Nassau County, NY recently passed an anti-BDS law.

Keep in mind, none of the anti-BDS bills and laws take away your right to boycott Israel or to advocate for BDS. 

Instead, these initiatives rely on one, two, or three of the following components:

1)      Blacklists. Many of the anti-BDS bills/laws require the creation of publicly-available, state-sanctioned blacklists of activists, non-profit organizations, and/or companies that are engaged in boycotts of Israel (including, in some cases, “territories controlled by Israel”). It's 21st century McCarthyism.

Interestingly, putting together a list of BDS supporters isn’t as straight-forward as some lawmakers expect, as Illinois recently discovered.  The lack of procedural clarity on who is subject to such singling out and punishment for their political views is one of the big legal issues with these laws.

2)      Prohibition on government contracts. Some of the anti-BDS bills/laws aim to punish individuals, non-profit organizations, and/or companies that support BDS by prohibiting the state or local government from entering into contracts with them. So, for example, under some anti-BDS bills, the United Church of Christ or the Presbyterian Church (USA) could be prohibited from contracting with the state to run social services like soup kitchens, homeless shelters, or youth programs because of actions they have taken in support of BDS.

3)      Pension fund divestment. Many of the anti-BDS bills/laws require state pension funds to divest from companies that boycott Israel (including, in some cases, “territories controlled by Israel”).

These anti-BDS bills/laws are unconstitutional.

The Supreme Court has long held that boycotts to bring about political, economic, and social change – like boycotts for Palestinian rights – are a form of expression protected by the First Amendment rights of speech, assembly, association, and petition. The government may not condition the receipt of government benefits on the requirement that a person forgo core political speech activity. Nor can the government enact measures that chill our speech rights.

Legislators have repeated our analysis of the legislation’s constitutionality. The California Assembly Judiciary Committee concluded that the anti-BDS bill currently being considered there “raises very serious and perhaps insurmountable First Amendment concerns.”

The Harvard Law Review agrees.

These bills/laws are a sign of desperation by Israel advocacy organizations.

Acknowledging the rapid growth of BDS activism, particularly on college campuses, Israel advocacy groups are turning to “more favorable turf” for their efforts to suppress criticism of Israel: politicians. The leader of one Israel advocacy group boasted, “[w]hile you were doing your campus antics, the grown-ups were in the state legislature passing laws that make your cause improbable.”

Anti-BDS bills/laws have galvanized BDS activists and free speech allies.

New “Freedom to Boycott” coalitions have formed to fight anti-BDS bills in several states, including Maryland, New York, Ohio, and Virginia. These coalitions are raising public awareness for BDS and Palestinian rights in the media, exposing the anti-speech agenda promoted by the backers of these bills. For example:

Anti-BDS laws will fail.

As we consider legal challenges to the anti-BDS laws that have passed, it’s worth reflecting on the bigger picture.

Our legislators should be in the business of protecting our rights, not punishing us for exercising them. We should hold legislators who support these anti-BDS bills accountable for their efforts to stifle collective action to make change. 

One thing is clear: there is a growing disconnect between the grassroots and the political establishment on the issue of Palestinian rights. Many Israel advocacy groups and the politicians who blindly support them are wrong to believe that they can legislate that disconnect away. You can’t change hearts and minds by taking away fundamental rights.

You can help.

Look for action alerts to oppose legislation in your state, or contact your legislators and let them know what you think about these bills.

Stand up for your right to boycott by writing to local and national media.

Join or start a local coalition to oppose anti-BDS legislation or to start your own boycott campaign and show that such legislation will not scare you away from exercising your right to boycott!

For an overview of anti-BDS legislation around the U.S., visit www.righttoboycott.org