MuzzleWatch: Breaking down the legal attack against the BDS movement

This is a nuts and bolts column regarding significant legal anti-BDS efforts, and the underlying tactics employed.  Given the ubiquity of new laws aimed at stifling BDS efforts it’s important to understand the machinery employed in order to effectively respond.  The good news is that civil rights groups like Palestine Legal and the ACLU have been working non-stop to counter these efforts.  In further service to coherently understanding the legal context for such anti-BDS efforts, I will be unpacking arguments in the Harvard Law Review note examining this issue.

Stopping BDS efforts has become a major thrust of the Israeli government and US actors who correctly recognize BDS as a serious non-violent tactic for effecting Israeli governmental change towards occupied Palestinians (beyond the green line) as well as inside Israel, proper.  Over the last few years, these efforts have accelerated and become more organized with, at this date, 28 US states having some sort of anti-BDS legislation on the books, and 14 more states attempting to pass legislation.  There are also myriad smaller scale efforts as well as federal level efforts, that, while important, I will leave for future columns.  What I want to do here is unpack the general outline of the legal strategy typically used by anti-BDS forces.

Although the “in the weeds” legal details don’t matter, it’s important to understand the general approach in order to develop a more coherent understanding of the forces arrayed against BDS efforts.   I will be using the recent and very thorough Harvard Law Review note (HLRn) that does a deep dive into the machinations of the legal theories involved.  For our purposes, the two necessary things to understand concern the First and Fourteenth Amendments (Free speech and discrimination, respectively). These amendments map very well onto issues discussed here previously concerning the conflation of antisemitic behavior and language with criticism of the state of Israel.

To reduce anxiety, I’ll give you the thumbnail first: it’s considered relatively settled law that BDS activity and language are protected by the First Amendment, and that discrimination claims have to reach a level that have, so far, and for the foreseeable future, not been achieved.  Thus, the US supreme court would have to reverse established law based (obviously, this could happen given this supreme court) on what has been, heretofore, considered relatively weak merits.  The civil rights movement in the US actually provides the strongest support for BDS efforts, as almost sacred SCOTUS decisions are providing the bedrock support for BDS.

Although BDS has been around since about 2005 as a consequence of Palestinian civil society calls to non-violently oppose the Israeli occupation, support refugee rights, and advocate for equal rights for Palestinian citizens of Israel, anti-BDS legislative efforts have only been around since around 2014 when Illinois was the first state to pass laws.  Israel, in 2014, budgeted about $25 million dollars to establish an anti-BDS task force focused on the US.  Thus, it’s pretty clear there has been a well-coordinated and funded effort that was quickly ramped up. Hoping to overcome first amendment issues, the gist of the anti-BDS legal argument is that BDS is targeting a particular group by inflicting economic harm, thus discrimination.  Antisemitism is claimed by charging that BDS trades in antisemitic stereotypes and singles out the world’s only Jewish (democratic) state while ignoring state human rights abuses in other countries (the standard “whataboutism” tactic). Further, there is an attempt to link age-old exclusions of Jewish people from commerce to BDS as the latest version of “economic warfare” against Jewish people.   The charge of antisemitism against almost any criticism of Israel or support of Palestinian rights has not really changed, it’s the main go-to tactic and, particularly in Europe, has been effective.

The “legalization” of this tactic is, however, new and I’ll be drilling down a bit on why this matters.   The main approach by anti-BDS forces is to employ some version of the anti-discrimination rationale – often seeking to penalize activity that discriminates on the basis of religion, national origin and nationality. In addition to these “contracting” laws, many states have passed resolutions equating BDS as a way to spread antisemitism.  These are often paired together to defensively counter obvious First Amendment challenges. The general class of these claims centers on the notion that BDS is discrimination, pure and simple, and the state has the power to prohibit such activity – and that these issues of discrimination overcome First Amendment rights. In some instances, such as the Airbnb controversy, the claim was made that Airbnb was discriminating against Jewish Airbnb rentals in the West Bank.  This politically and culturally head spinning/guffaw-inducing claim, easy enough to dismiss in most worlds, save the world of law, was enough to force Airbnb to retract its ban on such rentals.

The through-line here is to conflate antisemitism with anti-Zionism to such an extent that they are rendered, effectively, synonymous which then, allows for the relatively simple discriminatory claim of antisemitism to be made in almost all cases.  The table was set for this by a 2010 US state department adoption of antisemitism that includes the “3 Ds” – demonization, delegitimizing and double-standards (read: we like whataboutism).   The legal gravitas here centers on the transforming of ideology into something legally actionable (the legal term is “cognizable”).

We could easily, at this point, go down the rabbit hole of legalese and constitutional law — we won’t, but suffice it to say, it’s head spinning and the HLR note does an amazing job trying to keep it somewhat jargon free.  For our purposes, it’s important to understand that the bulk of established law supports free expression against general discrimination claims, but that obvious discrimination cannot hide behind free expression. Thus, a white supremacist group organizing a boycott of black businesses could be considered illegal by the state.  More concretely, Obama passed an executive law in 2014 prohibiting federal contractors from practicing anti-LGBT employment discrimination. This is similar to the claims now being made by those arguing for anti-BDS legislation.

But let’s not despair because almost all the laws developed to date are fairly weak constitutionally.  Indeed, these are very specific laws that only apply to boycotts against Israel, this “underinclusiveness” speaks to the fact that no other boycotts of any kind in the US are protected with these anti-BDS laws.  It’s pretty clear that such laws are being developed to stifle/quash (in legal terms, “disfavor”) a particular viewpoint, directed at a specific country, Israel. To be clear, it’s more than fine to have boycotts against any other country, any US state or the US itself (if this were possible), but apparently not Israel.

Anti-BDS forces try to make the case that direct evidence exists that BDS discriminates against Israeli individuals or Jewish individuals, per se, just because of their status but this claim could not be further from the truth.  Indeed, the Palestinian BDS national committee directly states that they do “not tolerate any act or discourse which adopts or promotes . . . antisemitism,” and it affirms Universal Declaration of Human Rights principles rejecting religious and national-origin discrimination. The Palestinian Boycott National Committee encourages supporters to select targets based on their complicity in Israel’s human rights violations, potential for cross-movement solidarity, media appeal, and likelihood of success. The movement does not select targets based on their national origin or religious identity.

There is a “judo throw” trick that anti-BDS forces also use in which they claim that criticism of the Jewish state or advocating the end of Israel as a Jewish state are direct evidence for antisemitism.  Although this stance can be construed or directly stated as being anti-Zionist (a political stance that opposes Jewish ethno-Nationalism in Israel), it certainly isn’t, by definition, equal to being antisemitic, (anti-Jewish animus).

Similarly, anti-BDS forces also argue that BDS ignores human rights abuses in other countries, and then uses “but-for” rhetoric, in the shape of “but-for” Israel being the Jewish state, or “but-for” Jews controlling political power in Israel, there would be no BDS movement.  Analogously, claims that the US refusing to trade with Iran are based on anti-Shia Muslim animus instead of Iranian nation-state policy, would be considered idle.  And the “but-for” argument immediately founders if we imagine a similar argument being made against BDS efforts in apartheid South Africa, “but-for” animus towards the Dutch Boer, there would be no BDS against South Africa.

In another attempted judo throw, anti-BDS tactics may involve claiming that BDS disproportionally affects Jewish Israelis, no matter the intent of BDS.   But this runs up against settled case law, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), in which the claim that the local whites were more likely to be employed by the boycotted businesses, constituting discrimination against white (I kid you not), was rejected.  Indeed, the point of the boycott was that whites were the only ones allowed to work and eat in these establishments due to racism. Similarly, BDS, if it has disproportionate effects on Israeli Jews is because the self-proclaimed Jewish State implements a policy of Jewish-only illegal settlements in the West Bank.

The bottom line is that anti-BDS efforts, in a legal context can easily be seen as an effort to stifle disfavored speech (with BDS considered a type of protected speech), precisely what the First Amendment is designed to protect.  Attempts to use anti-discrimination argumentation is dependent on the cynical conflation of critique of Israel’s policies with antisemitic racism. Although there are some critics of Israel that may also be antisemitic, BDS has clearly stated its rejection of any kind of racist language or behavior.  Attempts by anti-BDS forces to pass laws legislating against free speech, while successful in regard to getting onto the books in a majority of US states will most likely be rejected when constitutionally challenged. Palestine Legal has as its mission challenging these laws in court and I would urge people to see what they are doing here.

Pulling this back out of the legal context — clearly these anti-BDS efforts can have a chilling effect on non-violent efforts to challenge Israel’s US-supported illegal occupation.  The welter of local, state, and national laws and resolutions requires great commitment to fight against. This should not be surprising given the threat BDS poses to the status quo settler colonialism practiced by Israel.

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