The First Amendment and organizers of a year-long campaign to uphold the right to boycott won an important victory in Massachusetts when, on February 7, the legislative committee considering an “anti-BDS” bill refused to advance it to the floor, ending its chances of being passed this session.
The deceptively named “Act Prohibiting Discrimination in State Contracts” had been crafted by the Jewish Community Relations Council (JCRC) to skirt the kind of constitutional red flags raised by other state anti-BDS bills. It did not mention either boycotts or Israel, but instead reiterated anti-discrimination protections already on the books in Massachusetts.
A third of the Legislature, which is dominated by the Democratic Party, immediately signed on as co-sponsors: who wouldn’t want to go on record opposing discrimination? And who wouldn’t want to oblige the JCRC, which has a reputation as working for progressive causes – and has, over the last six years, taken a third of the entire Massachusetts Legislature to Israel on all-expenses-paid “winter study tours”?
A stealth attack on freedom of expression
In lobbying for the bill the JCRC revealed that its real purpose was to label the BDS movement as a form of “national origin discrimination” and prevent the state from contracting with any person or business that supported it.
The paper trail left by the bill’s proponents enabled the Joint Advocacy Group (JAG) –formed a year ago by JVP-Boston, Massachusetts Peace Action and The Alliance for Water Justice – to oppose the bill on solid First Amendment grounds and make the case that the right to boycott which has been upheld by the US Supreme Court should be protected at all costs.
Powerful testimony at the July committee hearing on the bill by constitutional scholars and legal organizations drove home the point that however vague it might appear on its face, the bill would, in the words of Columbia Law School professor Katherine Franke, “mete out a state sponsored penalty towards citizens who are exercising constitutionally protected rights and would, as a result, chill that protected speech.”
John Roberts, who directed the ACLU of Massachusetts for 33 years, told the committee that “regardless of your position on the BDS movement, the real problem here is that this legislature is willing to compromise long held and protected First Amendment principles, for short term political gains for a foreign government.”
Roberts added: “Spare us all the agony of the litigation that will follow if this bill passes.” Three months later, JAG members were quick to let legislators know of litigation initiated by the ACLU in cases involving anti BDS laws in Kansas and subsequently in Arizona. They had another opportunity to focus legislators’ minds on the constitutional issue when, just two weeks before the committee decided the fate of the Massachusetts bill, a federal judge issued a preliminary injunction temporarily blocking the Kansas law on First Amendment grounds.
An opportunity to educate elected officials
In addition to raising constitutional concerns, JAG members seized on the opening offered by the anti-BDS bill to educate legislators in face-to-face meetings about the BDS movement, and the Israeli policies that led to its emergence. No, it was not about hating Israel and trying to wipe it off the map, as many of them had been led to believe. No, it did not target people based on “national origin,” as the JCRC insisted.
Legislators learned that BDS is human rights-based, that it rejects all forms of racism, including anti-Semitism, and targets the discriminatory policies and actions of the Israeli government that violate international law — and that it is supported by many Jews and some Jewish organizations.
Accustomed to near unanimity of opinion where support for Israel is concerned, legislators must have been surprised at the outpouring of opposition to the anti-BDS bill coming from rabbis, teachers, lawyers, ministers, South Africa activists, civil liberties advocates, and even an ex-IDF soldier. They had their horizons expanded by the varied group of 100 organizations that endorsed a “Freedom to Boycott” letter, by the more than 100 faith leaders signing onto their own letter opposing the legislation, and by the eloquent testimony offered by nearly 50 people at the packed hearing on the bill.
For lawmakers who are unlikely to contemplate a visit to Palestine, being lobbied by compelling eye-witnesses to Israeli abuses with first hand stories to tell is perhaps the next best thing.
Have we reached a turning point?
Hoping that the Massachusetts experience will be useful to other groups fighting anti-BDS legislation, the JAG is producing a manual describing the various steps of its campaign. The manual will shortly be available on the websites of JVP Boston, Massachusetts Peace Action and The Alliance for Water Justice in Palestine.
We realize that there is no ‘one size fits all’ approach that can be replicated across the country, and that constitutional arguments may resound more loudly in some state legislatures than in others. But the time might be ripe in many states to build broad grassroots support for the right to boycott and Palestinian rights in general, and to engage in a very direct way with elected officials about Israeli policies towards Palestinians.
Why? Although state legislators may or may not have thought much about Trump’s moves in the Middle East, there is a growing awareness — at least among Democratic law makers – of the threat his Administration poses at home to constitutional rights and protections. They should have little incentive to pass state anti-BDS bills that open the door to the suppression of freedom of expression.
And if they are in touch with the Democratic base, they may understand that a partisan shift is underway in how Israel is regarded. According to a January 2018 Pew Research Center poll, support for Israel among Republicans (79%) is three times higher than among Democrats (27%), and younger Americans, including younger Jews, are less likely than older Americans to sympathize with Israel.
The times, it seems, are changing – and we have an opportunity to hurry the process along.