The battle of BDS in the U.S, has sparked a ferocious debate over First Amendment issues, a debate that IAM has covered.
As can be seen from the article below, the Los Angeles Time supports the right to call for boycott as protected speech. The paper dismisses charges that support for boycott is akin to antisemitism. This is hardly surprising, since in 2009 Los Angeles Times published an op-ed by Professor Neve Gordon of Ben Gurion University calling for the boycott of Israel. Arguably, the high profile of the LAT helped to mainstream the notion of BDS which was pretty marginal at the time.
The LA Times is wrong to dismiss the accusation of antisemitism off hand. As IAM emphasized, both the EU and the US State Department have concluded that some elements in the BDS phenomena could be construed as anti-Semitic.
First Amendment issues are taken very seriously in the United States and, ultimately, the courts would determine the legal status of the BDS. Until such time, the debate would go on.
Boycotts of Israel are a protected form of free speech
The Times Editorial Board
In recent months, a number of states have passed laws or taken other official actions to punish companies that participate in boycotts against Israel. California soon may do the same. But if it does, it will be making a mistake.
You don’t have to support the so-called Boycott, Divestment and Sanctions movement to be troubled when state governments in this country penalize American citizens for their political speech. As the Supreme Court has recognized, boycotts are a form of speech, protected under the Constitution.
The BDS movement has been the subject of much heated debate in recent years. It calls on people and companies to boycott Israel until that country ends its occupation of “all Arab lands,” ensures equal legal rights for its Arab citizens and accepts the right of Palestinian refugees to return to the former homes of their families in Israel. Some supporters of BDS accept the “two-state solution” in which Israel and an independent Palestine would exist side by side; others don’t.
Although BDS hasn’t inflicted significant economic damage on Israel, the movement’s increasing visibility — especially on some American college campuses — has alarmed Israelis and their supporters in the United States. Many supporters of Israel have sought to portray the BDS movement as anti-Semitic.
One result has been a flurry of actions in state capitals, from a law in Illinois divesting state pension funds from companies refusing to do business in Israel or the Palestinian territories to an executive order by New York Gov. Andrew Cuomo providing for the disinvestment by state agencies under his control from companies engaged in “boycott, divestment, or sanctions activity targeting Israel.” Most recently, the New Jersey Legislature passed a bill barring the investment of state pension and annuity funds in companies that boycott Israel or Israeli businesses.
Do such laws violate the 1st Amendment? Although the Supreme Court has held that government may engage in its own “speech” and express its own opinions, it also has held that government may not deny a benefit to a person (or a company) because he holds the “wrong” opinion. In our view, denying state business to an otherwise qualified contractor simply based on its views about Israel — and its participation in a legal boycott — goes beyond “government speech” and raises serious constitutional concerns.
In California, the situation has grown even more complicated. Opponents of BDS in the Legislature previously proposed a bill that would have forbidden state contracts with companies engaged in a boycott of Israel. But after legal objections, the legislation was radically reconfigured.
The latest version, approved by a state Senate committee last week, no longer seeks to penalize boycotts directly. Rather, it targets violations of existing anti-discrimination laws that take place under the pretext of a boycott or other “policy” aimed at “any sovereign nation or people recognized by the government of the United States, including, but not limited to, the nation and people of Israel.” The bill would require any person who seeks to contract with the state to certify, under penalty of perjury, that it hasn’t engaged in discrimination as part of such a policy.
This shift to an emphasis on individual rights may solve some of the 1st Amendment problems in earlier versions, but it also raises the question of why this proposed law is necessary at all. The state’s Public Contract Code already says that contractors may not discriminate “on the basis of age, sex, pregnancy, maternity leave status, marital status, race, nationality, country of origin, ethnic origin, disability, sexual orientation, gender identity, religion, or political opinion.” Why is it necessary to reiterate what already is the law — and to throw in a specific mention of boycotts and Israel?
Also, it’s difficult to imagine a scenario in which a company boycott aimed at a “sovereign nation” would result in discrimination against an individual employee or customer. And if it were to happen, there already are laws on the books to address racial and religious harassment. One theory is that the law, if passed, might lead to a lawsuit claiming that a boycott created a “hostile workplace environment” for a Jewish employee. But that strikes us as a far-fetched claim.
The proponents of this bill are desperately eager to single out and punish companies that engage in boycotts against Israel. Realizing that their initial proposal ran contrary to the free speech protections guaranteed in the Bill of Rights, they have now come back with a convoluted, redundant and most likely ineffectual bill that allows them to say they’ve passed an anti-BDS bill.
In California, as elsewhere in this country, support for Israel is strong — which is why laws aimed at boycotts of the Jewish state are a solution in search of a problem.
Politicians are free to denounce BDS if they choose. But they must do so without infringing on the rights of their constituents.
An Israeli comes to the painful conclusion that it's the only way to save his country.
August 20, 2009
Neve Gordon is the author of "Israel's Occupation" and teaches politics at Ben-Gurion University in Beersheba, Israel.
Israeli newspapers this summer are filled with angry articles about the push for an international boycott of Israel. Films have been withdrawn from Israeli film festivals, Leonard Cohen is under fire around the world for his decision to perform in Tel Aviv, and Oxfam has severed ties with a celebrity spokesperson, a British actress who also endorses cosmetics produced in the occupied territories. Clearly, the campaign to use the kind of tactics that helped put an end to the practice of apartheid in South Africa is gaining many followers around the world.
Not surprisingly, many Israelis -- even peaceniks -- aren't signing on. A global boycott can't help but contain echoes of anti-Semitism. It also brings up questions of a double standard (why not boycott China for its egregious violations of human rights?) and the seemingly contradictory position of approving a boycott of one's own nation.
It is indeed not a simple matter for me as an Israeli citizen to call on foreign governments, regional authorities, international social movements, faith-based organizations, unions and citizens to suspend cooperation with Israel. But today, as I watch my two boys playing in the yard, I am convinced that it is the only way that Israel can be saved from itself.
I say this because Israel has reached a historic crossroads, and times of crisis call for dramatic measures. I say this as a Jew who has chosen to raise his children in Israel, who has been a member of the Israeli peace camp for almost 30 years and who is deeply anxious about the country's future.
The most accurate way to describe Israel today is as an apartheid state. For more than 42 years, Israel has controlled the land between the Jordan Valley and the Mediterranean Sea. Within this region about 6 million Jews and close to 5 million Palestinians reside. Out of this population, 3.5 million Palestinians and almost half a million Jews live in the areas Israel occupied in 1967, and yet while these two groups live in the same area, they are subjected to totally different legal systems. The Palestinians are stateless and lack many of the most basic human rights. By sharp contrast, all Jews -- whether they live in the occupied territories or in Israel -- are citizens of the state of Israel.
The question that keeps me up at night, both as a parent and as a citizen, is how to ensure that my two children as well as the children of my Palestinian neighbors do not grow up in an apartheid regime.
There are only two moral ways of achieving this goal.
The first is the one-state solution: offering citizenship to all Palestinians and thus establishing a bi-national democracy within the entire area controlled by Israel. Given the demographics, this would amount to the demise of Israel as a Jewish state; for most Israeli Jews, it is anathema.
The second means of ending our apartheid is through the two-state solution, which entails Israel's withdrawal to the pre-1967 borders (with possible one-for-one land swaps), the division of Jerusalem, and a recognition of the Palestinian right of return with the stipulation that only a limited number of the 4.5 million Palestinian refugees would be allowed to return to Israel, while the rest can return to the new Palestinian state.
Geographically, the one-state solution appears much more feasible because Jews and Palestinians are already totally enmeshed; indeed, "on the ground," the one-state solution (in an apartheid manifestation) is a reality.
Ideologically, the two-state solution is more realistic because fewer than 1% of Jews and only a minority of Palestinians support binationalism.
For now, despite the concrete difficulties, it makes more sense to alter the geographic realities than the ideological ones. If at some future date the two peoples decide to share a state, they can do so, but currently this is not something they want.
So if the two-state solution is the way to stop the apartheid state, then how does one achieve this goal?
I am convinced that outside pressure is the only answer. Over the last three decades, Jewish settlers in the occupied territories have dramatically increased their numbers. The myth of the united Jerusalem has led to the creation of an apartheid city where Palestinians aren't citizens and lack basic services. The Israeli peace camp has gradually dwindled so that today it is almost nonexistent, and Israeli politics are moving more and more to the extreme right.
It is therefore clear to me that the only way to counter the apartheid trend in Israel is through massive international pressure. The words and condemnations from the Obama administration and the European Union have yielded no results, not even a settlement freeze, let alone a decision to withdraw from the occupied territories.