National movement to silence BDS disguises itself in MA legislature as ‘No Hate in Bay State’ act

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On Tuesday, July 18, the elephant in the room at Gardner Auditorium of the Massachusetts State House had a giant coming-out party.  The occasion was a hearing on “An Act to Prohibit Discrimination in State Contracts” (S.1689/H.1685). Attending the coming-out party were about 500 people, half wearing a blue sticker that said “No Hate in the Bay State” and half wearing a yellow one that said “Freedom to Boycott”.

“An Act to Prohibit Discrimination in State Contracts”, states that anyone entering into a contract with the state of Massachusetts shall not currently or for the duration of the contract “refuse, fail, or cease to do business with any other person when that action is based upon such other person’s race, color, creed, religion, sex, national origin, gender identity or sexual orientation.” The mantra of the bill’s supporters is “No Hate in the Bay State.”

The hearing opened with the bill’s sponsors declaring in no uncertain terms that the legislation was purely and simply about standing up to discrimination. Clearly shaken by an ACLU statement opposing it, the bill’s filer, Senator Cynthia Creem, asserted that it had been falsely portrayed as infringing on free speech and the right to boycott. She implored committee members to only consider what the bill said “on its face” – that it stood against hate in all its forms.

Immediately thereafter, another of its filers, Rep. Steven Howitt, exposed the true intent of the bill:  to penalize supporters of the Boycott, Divestment and Sanctions (BDS) movement by declaring BDS as a form of “national origin discrimination.” Then speaker after speaker from large institutional Jewish organizations including the Jewish Community Relations Council (which wrote the legislation), Americans for Peace and Tolerance (extreme Islamophobes), and Christians and Jews United for Israel condemned BDS, bragging that the legislation follows similar anti-BDS laws passed in 21 other states.

Thus they exposed the elephant in all its glory as part of the national Israel-supported movement to silence BDS through legislative action.

Then a parade of blue-stickered folks presented repetitive and sometimes outright misleading testimony.  Many said that the bill was the only thing that stood between them and anti-Semitic, anti-Israel hatred, discrimination, bullying, and harassment.  They frequently compared BDS to either Trump’s Muslim ban or the Colorado baker who refused to bake a wedding cake for a same-sex couple.  One asserted that BDS had its origins in Nazi Germany in the 1930s.

When legislators asked why the legislation was necessary (since state contractors already have comply with existing state anti-discrimination laws) the blue stickers (including the JCRC lawyer) were unable to cite even one difference with existing law; they invoked an increasingly hostile and anti-Semitic post-Trump climate.  Legislators asked if there were any examples or incidents of state contractors engaging in discrimination against Israeli-owned businesses.  Again, no examples.

When the yellow-sticker-wearers were finally allowed to speak after waiting for hours, they presented wide-ranging testimony against the bill, demonstrating that it was at best redundant and at worst an unconstitutional violation of free speech and a suppression of anti-racist struggles for justice.

Massachusetts residents and activists have been organizing opposition to anti-BDS legislation since it made its first appearance more than a year ago. Three organizations – Jewish Voice for Peace Boston, Massachusetts Peace Action, and the Alliance for Water Justice in Palestine – have been working together to educate legislators (many of whom had no idea of its true intent), build a coalition of 100 organizations opposing the bill, and bring together a broad network of scholars, attorneys, students, veteran boycott activists, clergy, community faith leaders, grassroots political organizations, small business owners, and civil rights organizations. Seventeen panels with almost fifty representatives of these constituencies provided evidence and testimony against the bill at the hearing.

Among the legal experts opposing the bill on constitutional grounds was Mark Tushnet, a leading scholar of constitutional law and currently the William Nelson Cromwell Professor of Law at Harvard Law School. The ACLU of Massachusetts issued a statement condemning the legislation as an infringement on free speech. The Center for Constitutional Rights, the National Lawyers Guild, Palestine Legal, and Defending Rights and Dissent issued a joint statement opposing the bill: “Given that this law is redundant, that it creates no new civil rights protections, and that its supporters have been clear that its purpose is to combat BDS campaigns, we believe that it is intended to punish and chill the speech of advocates for Palestinian human rights.” Columbia Law Professor Katherine Franke argued, “This bill is a solution in search of a problem.”

Small business owners decried the effect this law could potentially have on their companies.  Faculty and students at public schools and universities asked what would happen to them if they or organizations of which they are a part endorse BDS.  Will faculty, as state employees, be fired?  Will student groups or unions who support BDS be de-funded?  Anti-apartheid activists Caroline Hunter and Suren Modliar talked about the importance of BDS tactics to toppling the apartheid regime in South Africa.  Palestinians from both inside and outside ’48 testified to the profound oppression they face on a daily basis in Palestine at the hands of the IDF (and the dollars of the USA).  Faith leaders recounted the growing national and international support for BDS.  Rabbis and other Jewish-identified folks attested to their commitment to BDS and their refusal to allow the JCRC to speak on behalf of all Jews on this issue.

No one knows what this committee will decide. But we do know this: this latest ploy to disguise anti-BDS legislation as anti-discrimination legislation has been fully exposed in Massachusetts. The hearing provided ample evidence that this bill – and all the other stealth bills like it across the country – are part and parcel of a colonial project and Israeli policies, to displace and disappear Palestine and Palestinians.

And one more thing is clear: This legislation has engendered a powerful alliance of individuals and organizations who are now working as one in the state of Massachusetts to stand up in defense of Palestinian rights and the right to boycott.

About Heike Schotten

Heike Schotten is Associate Professor of Political Science at the University of Massachusetts Boston. She is the author of, among others, “Reading Nietzsche in the Wake of the 2008-09 War on Gaza.

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About Elsa Auerbach

Elsa Auerbach is a Professor Emerita at the University of Massachusetts Boston, and a member of Jewish Voice for Peace Boston.

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7 Responses

  1. jd65
    July 21, 2017, 12:22 pm

    ““An Act to Prohibit Discrimination in State Contracts”, states that anyone entering into a contract with the state of Massachusetts shall not currently or for the duration of the contract “refuse, fail, or cease to do business with any other person when that action is based upon such other person’s race, color, creed, religion, sex, national origin, gender identity or sexual orientation.”

    My reading of this excerpt from the bill means that it will not apply to BDS actions because BDS actions are not “…based upon such other person’s race, color, creed, religion, sex, national origin, gender identity or sexual orientation.” Right? The anti-BDS legislation here in Illinois had specific language about Israel, BDS, companies, etc. that made it explicitly “anti-BDS,” not just generically “anti-discrimination.” Does this Massachusetts legislation have more explicit language in it? If it’s simply redundant of other anti-discrimination legislation, and has no explicit anti-BDS language in it, but has pro-Israel/anti-BDS forces spinning it to make it seem like it states something that it in fact does not (as is implied in the article), then I guess I’d say what’s the big deal? Save one’s energy to fight against actual anti-BDS action/legislation.

    But I’m assuming there actually is explicit stuff in the bill that just wasn’t presented in this article?

    • YoniFalic
      July 21, 2017, 2:57 pm

      Here’s the Mass Senate bill.

      Bill S.1689

      SECTION 1. Chapter 30b of the General Laws is hereby amended by inserting the following section after section 23:

      Section 24: Prohibition of Discrimination in State Contracts

      A) A person who submits a bid or proposal to, or otherwise proposes to enter into or renew a contract with, a state agency with respect to any contract in the amount of ten thousand dollars ($10,000) or more shall certify, under penalty of perjury, at the time the bid or proposal is submitted or the contract is renewed, all of the following:

      (1) They are in full compliance with Massachusetts Anti-Discrimination Laws (G.L. c. 151b; G.L. c. 151e; G.L. c. 149 §§ 105A, 105B and 105C; G.L. c. 272 § 92A; G.L. c. 272 § 98; An Act to Establish Pay Equity, 2016 Mass. Acts c. 177 (effective July 2018).) and

      (2) They do not currently, and will not during the duration of the contract, refuse, fail, or cease to do business with any other person when that action is based upon such other person’s race, color, creed, religion, sex, national origin, gender identity or sexual orientation.

      B) Any policy adopted by a person or actions taken thereunder that are reasonably necessary to comply with federal or state sanctions or laws affecting sovereign nations or their nationals shall not be construed as unlawful discrimination in violation of Massachusetts Anti-Discrimination Laws.

      C) Violation of this Section shall result in rescission of the contract.

      SECTION 2. This act shall take effect upon its passage.

      For the purposes of legal construction, “person” in A.2 would include US and foreign corporations. The strictures of A.1, which merely restates existing Massachusetts General Laws, are now extended in A.2 to the much broader concept described by the phrase “do business with”.

      To a lawyer, this proposed law is clearly targeting BDS as a form of discrimination against a “person” by an extremely broad definition of “person” and an extremely broad definition of potentially discriminatory activity.

      • jd65
        July 22, 2017, 5:05 am

        Thanks YoniFalic. Seems to me that the words “boycott” and “Israel” being left out of this bill is a significant sign that the authors know they don’t have legit legal ground to stand on. Maybe this bill is political grandstanding more than anything else?

        You likely know much better than I about a lawyer being able use the “extremely broad” definitions in this Massachusetts bill to somehow target BDS as violating it. But, ironically, maybe another skilled lawyer could just as easily use this same broadness as a basis to defend folks who engage in BDS? Also, my main point is still that none of the actionable discriminations listed in the bill – [a] person’s race, color, creed, religion, sex, national origin, gender identity or sexual orientation – are the basis for BDS actions.

    • Keith
      July 21, 2017, 5:36 pm

      JD65- “My reading of this excerpt from the bill means that it will not apply to BDS….”

      How then to explain all of the Zionist support? I suspect that this new law has some new language which a sharp army of Zionist lawyers can twist to mean what they want it to mean. Otherwise, why bother?

  2. Arby
    July 21, 2017, 5:06 pm

    “Immediately thereafter, another of its filers, Rep. Steven Howitt, exposed the true intent of the bill: to penalize supporters of the Boycott, Discrimination and Sanctions (BDS) movement by declaring BDS as a form of “national origin discrimination.””

    I’d correct that typo if I were Mondoweiss.

    • JosephA
      July 21, 2017, 9:04 pm

      Good catch!

      Also, I sure hope the legislators do what is right.

  3. Misterioso
    July 22, 2017, 3:31 pm

    Meanwhile, in the civilized world:

    http://www.timesofisrael.com/irish-president-meets-leader-of-anti-israel-boycott-movement/?utm_source=The+Times+of+Israel+Daily+Edition&utm_campaign=f7ea0c5a0e-EMAIL_CAMPAIGN_2017_07_19&utm_medium=email&utm_term=0_adb46cec92-f7ea0c5a0e-55607481

    “Irish president meets [Omar Barghouti,] leader of anti-Israel boycott movement” T
    Times of Israel, July 19/17
    EXCERPT:
    “Israel protests after Michael Higgins shakes hands with Omar Barghouti at trade union conference and praises organizers for inviting him.”

    https://www.mintpressnews.com/scottish-court-rules-opposing-zionism-is-not-racism/229942/
    “Scottish Court Rules Opposing Zionism Is Not Racism”
    July 19/17

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