Are State Laws Against the BDS Boycott of Israel Legal?
Why are individual states passing laws against the BDS boycott of Israel? Shouldn’t this be a matter of federal legislation? Furthermore, how are these laws legal? Are they akin to anti-discrimination laws or do they violate the First Amendment right to free speech? In this article, we explain the legal, moral and cultural issues behind BDS boycott laws.
Laws exist in 35 states prohibiting the state from doing business with companies engaging in the BDS boycott of Israel.
The BDS boycott, known formally as the Boycott, Divestment and Sanctions Movement, seeks to cripple Israel economically and culturally. However, it is not only a principal weapon in the arsenal of anti-Israel agitators. The movement’s founder, Omar Barghouti, has explicitly stated that the goal of the BDS boycott is to end the existence of Israel as a Jewish state.
For more on the BDS boycott of Israel and the lack of support for it by the American people, click here.
State laws against the BDS boycott of Israel recognize this nefarious purpose and are aimed at BDS’s real goal. For example, Tennessee’s law, the first in the nation (passed in 2015 by a vote of 123-1), refers to the BDS boycott as:
“one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state… [The BDS boycott is] deeply damaging to the causes of peace, justice, equality, democracy and human rights for all the peoples in the Middle East.”
Similarly, Alabama’s anti-BDS law, passed unanimously in 2016, states that the BDS boycott is
“harmful to the State’s relationships with Alabama’s Jewish citizens.”
Alabama’s law also expresses unconditional support for Israel’s right to exist as a Jewish state.
State's Rights and America’s Federalist System of Government
State laws against the BDS boycott are consistent with America’s federalist system of government, which divides governmental power between the federal and state levels. One of the powers specifically delegated to the states is intrastate commerce (commerce within the state).
Thus, the BDS boycott is immanently relevant to individual states who regularly contract with businesses for services and invest money for pension accounts, for example.
Recent federal legislation reflects this power of the state. A defense bill passed in 2019 by the U.S. Senate explicitly
“allows a state or local government to adopt measures to divest its assets from entities using boycotts, divestments, or sanctions to influence Israel's policies … It also bars lawsuits against investment companies based solely on a company's decision to divest from entities that use boycotts, divestments, or sanctions to influence Israel's policies.”
The House has also left the issue to individual states, passing only a resolution in 2019 condemning the BDS boycott of Israel.
Federal Opposition to Boycotts of Israel
Boycotts against Jews and Jewish-owned businesses are nothing new. In the 1920s, Arabs began boycotting Jewish products in then British mandate Palestine. By 1955, seven years after the establishment of the state of Israel, the Arab League upped its game. It started blacklisting individuals and companies doing business with the nascent nation.
In 1977, Congress hit back with legislation forbidding U.S. companies from complying with any boycott imposed by a foreign government against nations friendly to America. Although the bill was specifically aimed at breaking the Arab boycott of Israel, The New York Times noted,
“For decades, it has been United States policy to oppose all boycotts aimed against friendly nations.”
Upon signing the legislation, then President Carter stated that one of the purposes of the law was to
“end the divisive effects on American life of foreign boycotts aimed at Jewish members of our society.”
The 1977 law against the Arab League Boycott of Israel essentially
“prohibits United States companies from discriminating on the grounds of race, religion, sex or national origin, from refusing to do business with companies that have been blacklisted by the Arabs, and from gving the Arabs boycott‐related information.”
Inadequacies and Failures of the Federal Law
The anti-Arab League boycott legislation allowed for many exceptions. Further, investigations by the U.S. Department of Commerce showed that many American companies were not even complying with the law.
Just a few short years after the bill’s passage, a senior Commerce Department official told The New York Times,
''Business on the whole has complied with the [Arab League] boycott [of Israel]. The law allows the boycott to go forward.''
In 1981, The New York Times reported,
“Many American companies that do business in the Middle East are complying with an Arab economic boycott of Israel even though a Federal law specifically forbids it. American companies acceded to more than 60 percent of such Arab requests as to refrain from using blacklisted ships, banks or goods of Israeli origin.”
According to the Commerce Department, by 1980, this amounted to $7 billion worth of business a year (equivalent to $25.44 billion today). And, due to exceptions in the law, most of this business was not in violation of the law.
Certainly, one thing state laws against the BDS boycott strive to accomplish is to close these gaps. In addition, state anti-BDS laws address a new political atmosphere in America. Now, American businesses are not only complying with the Arab League boycott of Israel. Rather, they are initiating the boycott themselves.
From the Arab League Boycott to the BDS Boycott
The 2001 UN conference in Durban, South Africa spawned the BDS boycott movement against Israel. The conference was ostensibly about racism, but it devolved into an antisemitic hate fest.
By 2005, anti-Israel activist Omar Barghouti officially founded the BDS movement. The movement has since been linked to numerous terrorist organizations and received a public endorsement from the terror organization Hamas.
In 2011, Barghouti stated that 2005 “was not the beginning.” Rather, for Barghouti and others, it is clearly a means to the “dezionization” (read: destruction) of Israel as the only Jewish state in the world.
Are Laws Against the BDS Boycott of Israel Unconstitutional?
By 2015, states began enacting laws against the BDS boycott. These new laws mainly require companies that have contracts with the state to certify they will not participate in the BDS boycott of Israel.
The laws prompted a cadre of radical anti-Israel activists and groups to challenge their constitutionality in five states. These groups claim the laws violate sacrosanct First Amendment free speech rights.
Some states – Kansas, Arizona and Georgia – amended their laws. In these cases, the lawsuits were either dropped (Kansas), upheld in court (Arizona) or have not been challenged (Georgia). In Arkansas, a case is currently pending, and in Texas, a judge issued an injunction in one case but didn’t apply it to the law in its entirety.
Why Are the Laws Against the BDS Boycott Constitutional?
Myth: Anti-BDS laws require that companies sign a pro-Israel oath
A common myth, spread by a prominent journalist, is that state contractors must sign a “pro-Israel oath.” This is false and simply a lie.
Contractors must only certify they are not participating in anti-Israel boycotts. No “pro-Israel oath” is required. Just like any individual, a state contractor has total freedom of speech. He or she is “free to criticize Israel as much as they like, donate to anti-Israel campaigns or candidates, and so on,” Bernstein says.
Moreover, when acting as a private individual, a state contractor is also free to boycott Israel. What’s the difference?
“A computer technician who signs a contract with the state can't refuse to use Israeli-made software for his contract work, but he can refuse to buy Sabra humus for his family dinner,” Bernstein explains.
However, the distinction between a boycott carried out by a private individual and a business owner can get fuzzy in the case of sole proprietorships. And, in fact, most of the lawsuits brought against states for their anti-BDS laws fall under this category.
It is for this reason these states amended their laws to exempt sole proprietorships from compliance. The amended laws require compliance only when the contractor has a number of employees and the contract with the state is worth more than $100,000.
Myth: The freedom to boycott is protected by the First Amendment
In a unanimous decision, the Supreme Court ruled that boycotts are economic actions, not speech. Hence, they are not protected by the First Amendment. In the case of BDS boycott laws, there is no legal distinction between “boycott” and “refuse to deal with” (the language of the laws).
Myth: The required certification that a company must make is compelled speech
Law Professor Eugene Volokh explains the certification requirements of these laws are “like any other contractual provisions on which the government insists.” Legally, contractual provisions are also not subject to First Amendment concerns.
The BDS boycott laws are
“just like a contract in which the company certifies that it's paying prevailing wage to its employees, or that it's using some fraction of American-made goods, or is using only organically farmed products, or that it will comply with antidiscrimination rules, or what have you,” Volovkh explains.
It may be the case that entering into a contract involves communication, even speech. Yet, contracts are “generally regulated by a wide range of laws that are not seen as subject to First Amendment scrutiny,” Volokh says.
Further, whether or not entering into a contract with the state involves speech, the certification required by states addresses a contractor’s actions, not his or her speech. Contractors are not required to believe or pledge adherence to an ideology, only that they will not act in a certain way.
Legally, such actions are not subject to First Amendment concerns. As we discussed earlier, any individual contractor is free to believe and express support for any ideology, including BDS boycotts.
Myth: Laws against BDS boycotts only serve to protect the State of Israel
This is also false for the following three reasons:
First, BDS boycott laws do not only address the damage that can be done to the state of Israel by the boycott. They also preclude state contractors from boycotting organizations that do business with Israel. Legally, this can include those who have simply taken a trip to Israel. These laws protect thousands of American citizens.
Second, many of the Americans the laws protect are Jews.
“In the unlikely event the Supreme Court chose to declare that economic boycotts are protected speech unless the boycotts involve certain protected categories such as race, ethnicity, sex, etc., that still would not likely help campaigners against anti-BDS laws,” Berstein says.
This is because, according to the definition of “protected categories,” Jews would most likely be designated as a protected category under current antidiscrimination standards. And because Israel is the only Jewish country in the world, boycotting Israel would
“have a wildly disproportionate effect on Jews …This is especially true because it's well-documented that the BDS movement originated at an explicitly antisemitic international conference in Durban, South Africa in 2001,” Berstein notes.
Third, a contractor may cause financial harm to all the citizens of the state by engaging in a BDS boycott of Israel.
“Imagine a state government contracts with a company for cybersecurity. The company boycotts Israeli software. By far the best software for the job is Israeli-owned Checkpoint, which will cost $50 million. The company, however, boycotts Israel, so it goes with inferior McAfee software, which costs $75 million. The state winds up with worse software and a bill for an extra $25 million. Why would any state agree to contract with someone who might do this?” Bernstein asks.
Should States Be Concerned About Foreign Policy?
Americans hold dear values of freedom, democracy and non-discrimination. It is not unreasonable that on a state level, legislatures would want to express these values. During the apartheid years in South Africa, many states passed bills banning state contractors from doing business with South Africa.
No one objected or claimed they had a First Amendment right not to boycott South Africa. This was the case even if they thought that the boycott would only serve to harm the blacks of South Africa.
BDS boycott laws essentially recognize that Israel is not only a strategic ally of America but a moral one as well. Moreover, these laws recognize that Israel has been singled out for unfair and undeserving treatment by its anti-Semitic detractors.
BDS, Anti-Semitism and American Values
At its core, the BDS boycott is simply the latest manifestation of the world’s oldest hate: anti-Semitism. Supporters of the BDS movement will often disingenuously claim that they are simply “anti-Zionists” and not anti-Semites. Yet, the BDS boycott of Israel falls under at least three of the 11 categories of antisemitism according to the definition adopted by the U.S. government (as well as 33 other countries, the United Nations and the European Union, among others).
Individual states not only have every right to take a stand against this anti-Semitism, they should be commended for doing so.