Israel advocacy groups – and the state lawmakers who blindly support them – continue their campaign to legislate against the growing boycott, divest from, and sanctions (BDS) movement for Palestinian freedom. With their anti-BDS legislation, these groups and lawmakers are threatening our constitutionally-protected right to boycott.
Below are important updates from Illinois, where the implementation of the anti-BDS law passed last year is exposing its constitutional problems, and from Florida and Colorado, where bills were recently signed into law.
Last year, Illinois enacted the country’s first anti-BDS law. The law requires the state to create a blacklist of foreign companies that boycott Israel. The law then requires the state pension fund to divest from blacklisted companies.
On March 18, the Illinois Investment Policy Board (“the Board”) published the blacklist. Among the companies listed are G4S, which recently announced it would sell its Israeli subsidiaries; Karsten Farms, a South African company that severed ties with an Israeli settlement produce exporter in 2013; and the Co-operative Group, a British retail chain that announced in 2012 that they would stop trading with companies that operate in Israeli settlements. According to the Board's meeting minutes, the “list had been produced through news reports and from companies that have claimed a boycott.”
In addition to First Amendment concerns, the Illinois law and its implementation raise due process concerns about the arbitrary nature of the creation of the blacklist, especially decisions based on “news reports.” For example, as with most anti-BDS legislation, the Illinois law’s definition of “boycott of Israel” requires the boycott to be “politically motivated.” This poses more questions than it answers. How does the Board determine a company’s motivation? In the case of G4S, for example, politically-motivated BDS activism undoubtedly influenced G4S’ recent decision to sell its Israeli subsidiaries. But was G4S’ decision politically motivated? G4S has, in fact, stated that its decision to withdraw from Israel was for “commercial reasons.” This kind of ambiguous language is present in many of the anti-BDS bills around the country.
Ironically, in listing G4S, this law seems to implement what divestment campaigns are demanding: divestment from companies that are complicit in Israel’s human rights violations. The intention, of course, is to pressure the companies to remain in Israel. But perhaps the BDS movement has made it more costly for such companies to continue their complicity than not. Either way, this legislation speaks volumes about the efficacy of the BDS movement in making business-as-usual in Israel more difficult for companies that play a supporting role to Israel’s matrix of control and occupation.
Florida, Colorado, Arizona
Florida Governor Rick Scott signed an anti-BDS bill into law, despite legal concerns raised by Palestine Legal, Center for Constitutional Rights, CAIR-FL, National Lawyers Guild, and the ACLU of Florida. Colorado Governor John Hickenlooper and Arizona Governor Doug Ducey also signed an anti-BDS bills into law. Here’s what you need to know about these new laws:
- What they do:
- Florida’s law requires the state to create a blacklist of for-profit entities that boycott Israel and “territories controlled by Israel”; and prohibits the state from contracting with or investing in blacklisted companies.
- Colorado’s law requires the state to create a blacklist of for-profit entities that have “economic prohibitions against Israel” (defined to include BDS), and requires the state pension fund to divest from blacklisted companies.
- Arizona's law requires the state to blacklist companies, organizations, and other entities that boycott Israel, and requires the state to divest from blacklisted companies. It also prohibits the state from contracting with entities that boycott Israel.
- What they do not do: While the laws’ intent is surely to dissuade compliance with the call for BDS, they do not prohibit BDS advocacy in Florida, Colorado, Arizona, or elsewhere; they do not prohibit divestment campaigns in schools or elsewhere; nor do they blacklist individuals that engage in BDS activism. If you have any questions about whether or how these new laws affect you, please contact us.
- Are these new laws constitutional? No. The Supreme Court has been clear that boycotts to effect social, economic and political change, with the aim of redressing rights violations, are protected by the First Amendment. Such attempts to penalize those who choose to engage in protected boycott activities violate First Amendment rights. Click here for a letter we sent to Governor Scott outlining our legal concerns with the bill. Click here for a similar letter from the ACLU of Florida. Palestine Legal is exploring possible legal challenges.