Top 10 Points from Harvard Law Review Note Debunking Anti-BDS Claims
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In February the Harvard Law Review published a compelling note refuting legal claims that boycotts for Palestinian rights are discriminatory. Many states have relied on such claims as a justification for infringing on First Amendment rights when enacting anti-boycott laws aimed at silencing advocacy for Palestinian freedom.
Against the backdrop of 28 state-level anti-boycott laws and proposed federal measures, the note explores the legal framework of anti-discrimination doctrines and debunks the argument that boycott, divestment, and sanctions (BDS) are a form of “legally cognizable discrimination.”
The legality of anti-boycott laws made the news again on Monday, when the Fifth Circuit Court of Appeals allowed Texas to join Kansas and Arizona in evading judicial review of its unconstitutional anti-boycott law.
After a federal judge blocked enforcement of the Texas anti-boycott law on First Amendment grounds, legislators amended the law so that it no longer applied to the individuals who challenged it.
The Fifth Circuit ruled on Monday that the new law rendered the case moot.
Lawsuits challenging anti-boycott laws are still under way in Maryland and Georgia, and a case against an anti-boycott law in Arkansas is pending at the Eighth Circuit Court of Appeals.
In case you missed it, here are 10 key points from the Harvard Law Review note:
The BDS movement is motivated by human rights and does not condone discrimination.
“While the movement displays blatant anti-Zionism, there is no evidence that the official movement displays animus toward Jewish or Israeli individuals. BDS is a diffuse movement rather than a centralized organization and, like in any movement, some individual supporters may be motivated by animus and fail to abide by BDS’s principles. But the principles, statements, and strategy of the official movement, as coordinated by the BNC, all point toward finding that the human rights motive is a genuine nondiscriminatory justification for its actions, defeating a discriminatory intent claim.”
BDS is focused on human rights and targets rights violations—not identities.
“[]BDS does not boycott Jewish individuals. Nor does it categorically target goods made in Israel, individual Israelis, or Israeli-owned businesses operating exclusively outside of Israel and Palestine that are not involved in rights violations. Instead, the movement relies on thorough documentation to carefully select targets based on complicity in Israel’s alleged violations of international law.”
“[F]or BDS, it is neither necessary nor sufficient that an entity be Jewish or Israeli. To become a target, the entity must be actively complicit in Israel’s violations of Palestinian rights—conduct that is not closely correlated with a specific identity.”
Claims that BDS is discriminatory require inferences that are unsupported by law or fact.
“First, there is no direct evidence that BDS exhibits discriminatory intent toward Jewish or Israeli individuals. Direct evidence is evidence that facially links behavior to a discriminatory motive, such as ‘conduct or statements . . . [that] directly reflect[] the alleged discriminatory attitude.’ Neither BDS’s conduct nor statements are facially discriminatory. The BNC’s official stance is that it ‘does not tolerate any act or discourse which adopts or promotes . . . anti-Semitism,’ and it affirms Universal Declaration of Human Rights principles rejecting religious and national-origin discrimination.”
“Because direct evidence requires facial proof without circumstantial inferences, such evidence of discrimination rarely exists and is absent in this context.”
Disfavoring Israel's treatment of Palestinians does not mean disfavoring Jewish people.
“Disfavoring conduct that is complicit in Israel’s treatment of Palestinians does not imply an intent to disfavor the status of being Jewish or Israeli...Moreover, the status of being Jewish is not ‘inextricably tied’ to such conduct of complicity—and to suggest otherwise would in fact ring anti-Semitic. Zionism does not reflect the views of all Jewish people, and the types of conduct that lead to becoming a BDS target are not done ‘exclusively or predominately’ by Jewish individuals. Similarly, one’s status as Israeli is not closely correlated with the conduct of operating a business that is implicated in Israel’s rights violations. The majority of targeted businesses are in fact not Israeli but are instead foreign companies that operate inside Israel and Palestine.”
Israel’s discriminatory policies are responsible for the impacts of boycotts.
“[C]onsider Claiborne, which vindicated black Mississippi residents’ boycott of white-owned businesses during the Civil Rights Movement. The Claiborne boycott no doubt disproportionately affected the local white community, given that whites were more likely to own and be employed by the businesses. However, it was the exclusionary policies of the businesses themselves that made their staffs white-only, resulting in a disproportionate effect on whites. Equally, Israel’s policies of carefully maintaining a Jewish-majority state and Jewish-only settlements in the West Bank would be responsible for any disproportionate effect that boycotts have on Jewish communities, and are precisely the policies that BDS seeks to change. For [civil rights movement] boycotters and BDS alike, there is irony in the claim that a boycott challenging a group’s exclusionary policies discriminates against that group because only they are affected by the boycott.”
Political boycotts of countries are not national-origin discrimination.
“Here, disfavoring a nation-state for its governmental policies is analytically distinct from national-origin discrimination, defined as disfavoring an individual due to ‘the country where a person was born, or . . . from which his or her ancestors came.’”
“If political boycotts of countries were cognizable as ‘national-origin discrimination,’ all sorts of current and historical boycotts would be swept into the net of illegal discrimination. Furthermore, Israel’s religious character does not necessarily render such a boycott discriminatory. Analogously, Iran, like Israel, self-defines based on religion, yet current U.S. refusals to buy from Iran do not give rise to anti-Shia religious discrimination claims, because Iran’s national policies, rather than its identity, are the target.”
Movements are not required to address every human rights violation in the world.
“[T]he argument that BDS has ‘singled out’ Israel by not targeting similarly situated countries would seem to require that a human rights movement focus on all injustices in a region or facing a community to overcome a claim that it discriminatorily selected a particular injustice as its focus. Such logic might have required the antiapartheid movement to address not just injustice by white South Africans, but also abuses by the black African National Congress leadership or by other African countries. This requirement is neither politically reasonable nor supported by existing law.”
The anti-discrimination framework is a weak attempt to cover blatantly unconstitutional aims.
“Governments likely adopted the discrimination rationale as pretext to help overcome anticipated constitutional challenges. Consider what these laws would look like if their goal were actually to root out religious and national-origin discrimination by state contractors engaged in boycotts. Anti-BDS laws as written would be both oddly underinclusive and overinclusive. They would be underinclusive because the vast majority apply only to discrimination against Israelis. Despite the range of boycotts practiced in the United States, no other nationality is protected by most anti-BDS laws. This sets anti-BDS laws apart from standard public accommodations laws, which ‘protect broad categories of people against discrimination,’ regardless of the viewpoint expressed.”
Anti-BDS laws allow some contractors to pay their way out, negating alleged anti-discrimination interests.
“[S]ome bills provide exemptions from the certification requirement for contractors who bid 20% less than the lowest business that is certified. If anti-BDS laws were meant to combat invidious discrimination, it would be inconsistent for states to freely permit such discrimination as long as the contractor offered a low enough bid.”
Faulty anti-discrimination claims should not trump First Amendment protections.
“The weakness of the discrimination claim is constitutionally significant for anti-BDS litigation. It reveals that, despite states’ assertions to the contrary, the government does not have a compelling anti-discrimination interest that could trump countervailing First Amendment interests.”