Maryland’s anti-BDS (Boycott, Divestment and Sanctions) law opposing discriminatory commercial boycotts against Israel is being challenged in court, with incorrect suggestions that it violates the First Amendment guaranteeing freedom of speech.
The pro-Israel community fully supports the First Amendment of the Constitution. Anti-BDS laws are narrowly tailored anti-discrimination laws similar to many other anti-discrimination laws that protect women, racial minorities and LGBTQ individuals, among other categories of people. All of these laws highlight the critical distinction between commercial activity and the exercise of free speech, which comes into sharp focus in the course of carrying out the government’s obligation to protect classes of people from discrimination.
In a January ruling, an Arkansas federal judge agreed with our analysis, dismissing with prejudice a challenge made to that state’s anti-BDS law.
There is a long history of laws in the U.S. prohibiting discriminatory commercial activity targeting Israel. More than 40 years ago, in response to the Arab League Boycott of Israel, amendments to the Export Administration Act and the Tax Reform Act of 1976 were implemented to prevent entities from imposing misguided foreign policy in the U.S. They apply to both individuals and companies and prohibit unauthorized commercial boycotts against foreign nations.
In response to BDS discrimination against Israel, Maryland and other states enacted state level prohibitions that generally protect their economic and trade interests by prohibiting the state from spending taxpayers’ money to contract with or invest in businesses that engage in BDS commercial discrimination against Israel. More than two dozen states currently have anti-BDS laws, and additional states are considering adopting similar laws.
Anti-BDS laws do not restrict a person’s right to speak against Israel, and, contrary to the inflammatory claims of those who oppose such laws, they do not require state residents to take “oaths” in favor of Israel. Rather, these laws simply target the discriminatory commercial conduct of the BDS boycott campaign.
Furthermore a long line of Supreme Court cases support the fact that state anti-BDS laws do not infringe upon the First Amendment.
Those who argue that state anti-BDS laws violate the First Amendment generally cite the landmark U.S. Supreme Court case of NAACP v. Claiborne Hardware, which protected the rights of African-American citizens to engage in a commercial boycott against white business owners in Mississippi who were directly discriminating against them in violation of the U.S. Constitution, including the 14th Amendment. However, this U.S. Supreme Court case does not represent the BDS boycott model. In the Claiborne case, those who were boycotting were the injured parties, and the businesses that were being boycotted were the ones doing the damage — thus making that boycott a primary boycott to vindicate the boycotters’ Constitutional rights.
The conflict between Israel and Palestinians does not involve the United States Constitution, and those who engage in BDS activity in the U.S. are participating in a secondary boycott to influence U.S. foreign policy. The Supreme Court case International Longshoremen’s Association, AFL-CIO v. Allied Int’l, Inc., involved a secondary boycott where workers refused to unload Soviet cargo to protest the Soviet Union’s war in Afghanistan. The U.S. Supreme Court ruled that the First Amendment did not protect the workers, since neither they nor the ship’s owners nor the American consumers that were being penalized by the boycott were a party to the foreign dispute.
The State of Israel recently released a report, Terrorists in Suits, which extensively details the material connections between those that head and finance the BDS Movement and designated terrorist entities. Anti-Israel terrorist groups such as Hamas and the Popular Front for the Liberation of Palestine were involved in the formation of BDS and continue to manage BDS activity worldwide. While a person has a First Amendment right to express a political opinion, the Supreme Court has ruled that this does not include the right to engage in advocacy that constitutes material support to terror.
The BDS campaign’s discriminatory nature is evident as BDS holds Israel to a double-standard, and BDS advocates actions that would lead to the end of Israel as the nation/state of the Jewish people. When combined with the close association between BDS and terrorist organizations, it is no wonder that so many states have distanced themselves from BDS. Implementing constitutionally-protected anti-BDS legislation is a decision that allows states to express loud and clear the will of their citizens. We have no doubt that a judge will uphold Maryland’s.
Ron Machol (email@example.com) is the COO of Zachor Legal Institute. Joseph Sabag is the director of policy and government relations at IAC for Action.