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Boycott Calls Against Israel
Drop in Anti-Israel BDS Campaigns on US Campuses: Are the Winds Changing?

03.10.17

Editorial Note

 

Israel on Campus Coalition, a group dedicated to Israel-related events on US campuses, published a report on 2016-2017.  The report counted a total of 4,327 activities - 1,172 anti-Israel activities and 3,155 pro-Israel ones.   The figures represent an almost 20% decline from the 1,437 and 3,886 respectively in 2015-2016.  More specifically, with regards to BDS, there was a 40 percent decrease in activities, in 2016-17 there were 20 BDS campaigns while in 2015-16 there were 33.

 

This is not surprising since Pro-Palestinian groups have claimed that measures to legislate law prohibiting BDS are restricting their freedom of speech.  Palestinian BDS groups assert that Palestinian advocacy is now being targeted. They note facing new threats from anti-BDS organizations

 

It should be noted that there has been a recent uptick in anti-BDS activity.  The OutlawBDS, a New York based anti-BDS group that was established to “provide support for New York State Senate Bill S2492” is a case in point.  The group published a ‘blacklist’ of BDS supporters in New York and upon passage of anti-BDS law, an entire list of individuals compiled by the group “will be immediately delivered to state authorities, to ensure nothing is hidden from those who wish a better hope for this country.”  The group emailed BDS activists to warn them that "According to new legislation in New York State, individuals and organizations that engage in or promote BDS activities with US allies will no longer receive public funding or support.  Moreover, the state and its agencies will no longer engage in business or hire these organizations and individuals as they have been deemed problematic and anti-American. You have been marked. You have been identified. You have a limited window of opportunity to cease and desist or face the consequences of your actions in legal proceedings. In case you have ceased your past wrong-doing, please contact us at admin@outlawbds.com for your profile to be removed from the Blacklist."  


Palestinian BDS activists responded that “The goal is to scare these activists before the beginning of their professional careers so they can drop activism for Palestine... if you would like to find a job, you should quit the Palestinian cause—or we will make it impossible for you.” 

 

Sunaina Maira, professor of Asian American Studies at the University of California Davis, and member of the US campaign for the Academic and Cultural Boycott of Israel, has spoken about this blacklisting: “As faculty advisor to Students for Justice in Palestine and member of Faculty for Justice in Palestine at UC Davis, and an academic boycott organizer involved in national campaigns, I've noticed the chilling effect that Zionist blacklists and smear campaigns have had on activists involved in the Palestinian justice movement, especially on campuses where administrators routinely discipline students who dare to demand equality and justice for the Palestinian people... The tactics that alt-right activists and white nationalist groups are using to attack faculty and undermine academic freedom have long been used by Zionists across the US to create what Steven Salaita called the 'Palestine exception' to free speech."

 

Echoing this tone, the American center Palestine Legal, an independent organization for the civil rights and liberties of people supporting Palestinian freedom, has published an analysis of the legal status of BDS in New York.  It says in March 2017, "with almost no notice, no public hearing, no opportunity for public input, the New York State Senate passed three anti-protest bills targeting Palestine advocacy. S.2492 would create a state-sponsored blacklist of individuals, organizations, and companies that support boycotts for Palestinian rights, and would unconstitutionally deny them state benefits." Palestine Legal also mentioned that "On June 5, 2016, Governor Andrew Cuomo signed Executive Order No. 157 (EO 157) Directing State Agencies And Authorities To Divest Public Funds Supporting BDS Campaign Against Israel."

 

Arguing that BDS is not considered free speech, Marc Greendorfer, an experienced attorney in legal advocacy and scholarship, postulates that BDS support is not protected by the First Amendment because while commercial boycotts have a history in the United States, "Boycotts that conflicts with established government policy are not protected.” Because BDS violates the rights of Jewish and Israeli American that are protected by the Fourteenth Amendment.  In addition, existing federal law prohibits support for foreign-sourced boycotts of Israel. He stressed that both Congress and the Supreme Court have followed the principle that when a boycott interferes with commerce or disrupts important policy goals of the government, the right to boycott is vulnerable to government infringement, particularly if the boycott is not in furtherance of the protection of a substantive right held by United States citizens." Greendorfer clarifies that the American "Supreme Court found that boycotts that are political protests intended to punish foreign nations for their offshore conduct may be limited by the government." He concluded that "It is paradoxical that BDS supporters attempt to cloak their unlawful activities with First Amendment protections.... First, opposition to boycotts of Israel has been longstanding U.S. government policy... Far from being civil rights activists, BDS is nothing more than a thinly-veiled hate group."

 

In a recent paper "Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine," Greendorfer reviewed "the constitutionality of state laws that prohibit the state from investing in, or contracting with, parties engaged in certain boycott activity." He found that "as the boycotts subject to state regulation are often connected to the so-called 'BDS movement' that has been active in promoting commercial and academic boycotts of Israel, the paper focuses on the background of BDS and how the nature of BDS impacts the analysis of Commerce Clause and Unconstitutional Conditions Doctrine applicability." 

 

Prof. Maira, the BDS supporter, has, of course a different opinion as expressed in her forthcoming book Boycott!: The Academy and Justice for Palestineto be released on January 31, 2018.  According to the blurb, "The Boycott, Divestment, and Sanctions movement (BDS) has expanded rapidly though controversially in the US in the last five years. The academic boycott of Israeli academic institutions is a key component of that movement. What is this boycott? Why does it make sense? And why is this an American Studies issue? These key questions and others are answered in this essential short book. Boycott! situates the academic boycott in the broader history of boycotts in the US as well as Palestine and shows how it has evolved into a transnational social movement that has spurred profound intellectual and political shifts. It explores the movement’s implications for antiracist, feminist, queer, and academic labor organizing and examines the boycott in the context of debates about Palestine, Zionism, race, rights-based politics, academic freedom, decolonization and neoliberal capitalism."  

 

By the time the book is published, Maira and her fellow BDS activists might discover an entirely different BDS scene that will keep evolving in the US and beyond.





https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3032646

Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine.

30 Pages Posted: 7 Sep 2017 Last revised: 14 Sep 2017

Marc Greendorfer

Zachor Legal Institute; Tri Valley Law
Date Written: September 5, 2017

Abstract

This paper is a review of the constitutionality of state laws that prohibit the state from investing in, or contracting with, parties engaged in certain boycott activity. In particular, as the boycotts subject to state regulation are often connected to the so-called “BDS movement” that has been active in promoting commercial and academic boycotts of Israel, the paper focuses on the background of BDS and how the nature of BDS impacts the analysis of Commerce Clause and Unconstitutional Conditions Doctrine applicability. 

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New Report: Anti-Israel BDS Campaigns Drop by 40 Percent on US Campuses in Past Year, but Are Turning Increasingly Aggressive

by Shiri Moshe

SEPTEMBER 19, 2017 9:53 AM


The number of campaigns supporting the boycott, divestment, and sanctions movement at American universities dropped by nearly 40 percent during the past academic year, even as professional anti-Israel organizations invested more resources to advance campus efforts, a new report by a pro-Israel advocacy group has found.
Twenty BDS campaigns took place on US campuses during the 2016-17 academic year, compared to 33 campaigns during the 2015-16 academic year, the Israel on Campus Coalition determined. The amount of anti-Israel activity also decreased by 19 percent last year, with pro-Israel events outnumbering those hostile to Israel by more than 2-1.
Despite these gains, “BDS campaigns were more sophisticated and aggressive, with professional organizations investing greater resources in campus divestment efforts,” the report said.
These groups, which “provided Israel’s detractors with financial, material, and programming support,” include American Muslims for Palestine, American Friends Service Committee, Palestine Legal, the U.S. Campaign for Palestinian Rights and Jewish Voice for Peace, according to the report.
Members of this anti-Israel network have been increasingly “concentrating their resources on a limited number of BDS battles,” the ICC report noted, namely at high-profile schools including Columbia University, George Washington University, Georgetown University, the University of Michigan, the University of Wisconsin-Madison, Ohio State University, and the University of Illinois at Urbana-Champaign.“These national organizations played a significant role in supporting the intense battles waged by Israel detractors on campus,” ICC spokesperson Megan Nathan told The Algemeiner, including by drafting student BDS resolutions and pursuing legal action on behalf of activists.
Despite these efforts, ICC also found “a 40 percent decrease in the number of anti-Israel lectures and speakers hosted on U.S. campuses,” as well as a 25 percent drop in Israeli Apartheid Weeks. In contrast, “pro-Israel theme weeks increased by 14 percent,” while pro-Israel events organized during the week of Israel’s Independence Day increased by 91 percent.
Location served as a deciding factor in the quantity of anti-Israel activism, with events in the Midwest — where both American Muslims for Palestine and the American Friends Service Committee are headquartered — outnumbering those in other regions. California, which experienced an overall reduction in anti-Israel activity, nonetheless saw a nine percent increase in anti-Israel events.
Overall, the total number of both anti-Israel and pro-Israel events declined by nearly 20 percent.
The report warned that pro-Israel students and advocates should not be lulled into complacency, as detractor groups continued to employ controversial tactics to advance their agenda. These included “hostile disruptions of pro-Israel events” in an effort to silence dissenting voices, as well as the introduction of BDS resolutions on and around Jewish holidays.
“At Tufts University, [Students for Justice in Palestine] activists initiated a BDS vote just before the start of Passover, preventing Jewish students from debating and voting on divestment,” ICC noted. “At the University of Michigan, anti-Israel students erected a mock ‘Israeli apartheid wall’ during Rosh Hashanah. In a particularly offensive incident at [University of California, Santa Barbara], SJP announced a BDS campaign on Holocaust Remembrance Day, upsetting Jewish students and drawing harsh criticism from campus groups.”
Anti-Israel detractors also made appeals to university trustees and officials, encouraging them to divest from Israel. While efforts largely failed, ICC called on Israel’s supporters to “redouble their efforts to educate trustees about the hateful and divisive agenda motivating BDS activism.”

 

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Targeted by David Horowitz? Fight Back: 6 Actions to Demand of Your University 
September 26, 2017

In the past week, Islamophobic posters targeting advocates for Palestinian rights were once again plastered on several campuses including Brooklyn College, the University of California Berkeley, San Francisco State University (SFSU) and the University of Chicago. The poster campaign is the work of David Horowitz, an anti-Muslim, anti-immigrant and anti-black extremist who is closely aligned with Attorney General Jeff Sessions and Stephen K. Bannon. Posters may appear on additional campuses in the coming weeks.
The Horowitz posters list the names of members of Students for Justice in Palestine and Jewish Voice for Peace, as well as other students and professors who support Palestinian rights, and falsely accuses them of supporting terrorism. Horowitz compiles names from Canary Mission, a widely condemned online blacklist of Palestinian rights activists.
The Horowitz posters contribute to an unsafe and hostile campus environment for targeted students, particularly Muslims and students of color. Palestine Legal has worked with students on several campuses, this year and in previous years, to pressure their administrations to take immediate action to condemn the posters and to offer concrete support to targeted students.
Here are six actions students targeted by Horowitz posters have demanded their administrations take:     
1. Immediately issue a public statement strongly condemning the Horowitz posters and Canary Mission, and reaffirming students’ and professors’ right to advocate for Palestinian freedom. (Here’s one example.)
2. Meet with members of SJP, JVP, and other targeted groups to hear their concerns and demands.
3. Commit university resources – including legal resources – to pressure Canary Mission and David Horowitz to remove students’ names and information.
4. Pressure Google and other online search engines to deprioritize Canary Mission in search results.
5. Provide legal support and online reputation management support for students and professors who have been targeted by Horowitz and Canary Mission.
6. Create a student-run and student-controlled commission to investigate incidents of racism and discrimination against Arabs, Muslims and Palestinians and all members of marginalized and underrepresented communities.
If you find such posters your campus, contact Palestine Legal so that we can support your efforts to pressure your administration to take strong and immediate action. 




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http://mondoweiss.net/2017/09/anonymous-publishes-supporters/


Anonymous anti-BDS group publishes ‘blacklist’ of boycott supporters in New York


Jesse Rubin on September 7, 2017 
Early last week, an unidentified group launched a shadowy website identifying New Yorkers believed to support the boycott, divestment and sanctions (BDS) movement for Palestinian rights—placing their photos, social media links and email addresses on a “blacklist” located at OutlawBDS.com. The list features ninety-seven individuals divided into the categories Campuses, Public & NPOs and Private Sector Activists.
Among those who appear on the so-called blacklist are professors, journalists, students, non-profit staff-members and executives.
Project OutlawBDS claims it was established by a group who “consider themselves to be analytical in their approach to the BDS movement,” whose stated intention is to “provide support for New York State Senate Bill S2492,” the latest attempt to pass anti-BDS legislation in the state.
Though bill S2492 has already failed to pass the New York State legislature—not to mention a handful of other anti-BDS bills introduced over the past three years—the project apparently anticipates that given time, New York will outlaw support for BDS.
And though Palestine solidarity activists have stifled each attempt, there is reason to believe New York legislators will continue trying to outlaw the boycott of Israel.
Anti-BDS sentiment has gained traction among lawmakers nationally and as it stands now, 21 states have anti-BDS laws on the books. The legal stipulations vary somewhat between states, but their common goal is punishment of those who express support for or participate in boycotts against Israel through divestment of state funding and benefits from those individuals.
Project OutlawBDS wants the same for New York, stating on its “About” page that upon passage of such a law, the entire list of indiviuals compiled by the project “will be immediately delivered to state authorities, to ensure nothing is hidden from those who wish a better hope for this country.”
Peter Moscowitz, a New York City-raised journalist, writer and activist who appears on the so-called blacklist, said they weren’t surprised by the tactics of Project OutlawBDS.
“A lot of these sites are linked to shady nonprofits and either directly involved with or at least influenced by the tactics of the Israeli government and its military,” Moscowitz told Mondoweiss. “What’s funny is how wrong all the information on the page is about me. To me this shows how desperate they are. [Opponents of BDS] cannot win on public opinion grounds so they turn to smear tactics.”
Despite their fervor, lawmakers who actually outlaw BDS are entering a civil liberties fight they are unlikely to win, as political boycott is considered free speech and protected under the First Amendment. But the issue would take years to wind its way through the court system.
Nevertheless, many of New York’s lawmakers have aggressively pursued anti-BDS measures, cowing to Israel-lobby pressure.
In June 2016, New York State Governor Andrew Cuomo signed a controversial, first-in-the-nation anti-BDS executive order. Although the order has proven mostly toothless since its passage over a year ago, Cuomo’s decision was simply part of pattern that sees elected representatives forever trying to prove their allegiance to Israel.
As Palestine Legal noted in the wake of this latest attack, Congress is presently considering passage of the Israel Anti-Boycott Act, with intense lobbying from AIPAC and bipartisan support.
But to both those behind Project OutlawBDS, or the more prominent Canary Mission, the legality of BDS is something of an afterthought says Raja Abdulhaq, a Palestinian activist and cofounder of the Palestinian media company Quds Network.
As support for Palestinian liberation blossoms, “Israel and its Zionist allies in the US have been involved in tougher campaigns that make activists face threats of public shaming and character assassination,” Abdulhaq, whose photo and information appears on the site, told Mondoweiss. “The goal is to scare these activists before the beginning of their professional careers so they can drop activism for Palestine.”
The message is clear, Abdulhaq added: “if you would like to find a job, you should quit the Palestinian cause—or we will make it impossible for you.”
The as yet unidentified group responsible for Project OutlawBDS has gone to great lengths to remain anonymous. The site employs above-average security measures including the use of multiple proxies and scrubbed image files—images with their metadata manually removed.
When I queried Project OutlawBDS about this, an administrator responded, rather ironically, saying “we believe that our identity is not an issue.”
And an initial investigation reveals only a few, but potentially idenfiying vulnerabilities.
Before going live as OutlawBDS.com, for instance, the original name was Project Sugar Maple, a reference to the state tree of New York. The Project Sugar Maple site was created on June 1, nearly two months prior to the July 26 launch of OutlawBDS.
Project Sugar Maple is still accessible as of today, replete with errors that may yet expose whoever is behind it.
Since September 4, the site administrator has been emailing each blacklisted individual the same faux legal threat.
With the subject “You have been Black Listed!,” the identical emails state that each recipient has been identified as a supporter of BDS and warns that their business relationship with New York State will end—pending new legislation of course.
The text of the email appears below with names omitted:
From: <admin@outlawbds.com>
Date: Wed, Sep 6, 2017
Subject: [Recipient] – You have been Black Listed as a BDS member!
To: [Recipient email]
[Recipient], Be aware that you have been identified as a BDS promoter.
According to new legislation in New York State, individuals and organizations that engage in or promote BDS activities with US allies will no longer receive public funding or support.
Moreover, the state and its agencies will no longer engage in business or hire these organizations and individuals as they have been deemed problematic and anti-American.
               You have been marked.
               You have been identified.
You have a limited window of opportunity to cease and desist or face the consequences of your actions in legal proceedings. In case you have ceased your past wrong-doing, please contact us at admin@outlawbds.com for your profile to be removed from the Blacklist.
For your profile, visit us here:
OutlawBDS team
“You have been marked. You have been identified” each message states, in an end-of-days kind of tone, before offering an unspecified “window of opportunity to cease and desist” or face “legal proceedings.”
But the threats are legally illegitimate, not least because the law cited does not exist, said Radhika Sainath, a staff attorney at Palestine Legal, a Chicago-based legal resource and advocacy organization dedicated to protecting the legal rights of Palestine solidarity activists.
“The sender uses legalese as a scare tactic — but the threat is completely without merit,” Sainath told Mondoweiss. “They’re trying to bully principled New Yorkers advocating for Palestinian rights.”
Likening the tactics to McCarthyism, Moscowitz noted that such threats do indeed have “a chilling effect” even if the law in question has no direct bearing on an individual.
“These kinds of laws make me feel constantly under surveillance,” Moscowitz admitted, “and make me question my ability as a journalist to operate independently.”

=================================================================================================================



Proud Boys and blacklists: BDS activists in the US facing new threats

#BDS
Activists on campuses across the United States are facing new threats from violent white supremacist organisations
 
Friday 15 September 2017 10:55 UTC

Just in time for the new school year, Stanford University published a paper last week that said Jewish college students in California have not witnessed anti-Semitic situations and feel comfortable with their religion.
“Contrary to widely shared impressions, we found a picture of campus life that is neither threatening nor alarmist. In general, students reported feeling comfortable on their campuses, and, more specifically, comfortable as Jews on their campuses,” the report's executive summary reads, adding that the students surveyed study at San Francisco State University, UC Berkeley, UC Irvine, UCLA, Stanford University.
Despite the report's findings, arch-conservative organisations have scrawled graffiti on campus walls from Georgetown University to Washington State University to the University of Hawaii, generally within days, even hours before schools open their doors to students. And while this unnerving phenomenon is not new, it may be gaining traction this year with the national rise of the so-called "alt-right".
One of the new campus threats is the “Proud Boys,” a “Western chauvinist” men’s rights group founded in 2016, whose tactics reveal both anti-Semitism and an anti-Palestinian, anti-BDS agenda. The “Proud Boys” are mostly former military, armed, and some chapters include members of colour, which complicates the “white supremacy” accusation.
 
They proclaim to promote “Western” supremacy and a banner on their Facebook pageclamours “Proud Boys Are Not Alt-Right,” even as they explain that they are pro-gun, pro-Trump, pro-police, anti-Islam, and anti-feminist (among other issues).
There are many internal inconsistencies in the organisation. For example, even though they claim to be “pro-gay,” one member was heard saying they needed to fight “the faggots wearing black” at a New York University protest at which "Proud Boys" founder Gavin McInnes was speaking.
The "Proud Boys" have been planning rallies and recruitment campaigns on campuses around the country, and their social media chatter also reveals deep-seated anti-Semitism.
As the battle lines are being drawn, with many faculty and university staff joining the new and fast-growing Campus Anti-Fascist Network and committing not to let these groups on their campuses, the "Proud Boys" may escalate the violence, especially since the final step in their membership hazing involves “a major fight for the cause”.
"You get beat up, kick the crap out of an antifa” and possibly get arrested,” said Proud Boys and Vice media co-founder McInnis.

BDS 'blacklist'

The other new campus battlefront, which has been limited to only New York thus far, but with stated plans to target people nationally, is the new group “OutlawBDS”.
They openly call themselves a “blacklist”. Over the past week, students, faculty, journalists, non-profit staff-members, and cultural workers have received this email (forwarded to MEE by one recipient):
[Name] Be aware that you have been identified as a BDS promoter.
 
According to new legislation in New York State, individuals and
organizations that engage in or promote BDS activities with US allies
will no longer receive public funding or support.
Moreover, the state and its agencies will no longer engage in business
or hire these organizations and individuals as they have been deemed
problematic and anti-American.
 
                 You have been marked.
                 You have been identified.
 
You have a limited window of opportunity to cease and desist or face
the consequences of your actions in legal proceedings. In case you
have ceased your past wrong-doing, please contact us at
admin@outlawbds.com for your profile to be removed from the Blacklist.
 
For your profile, visit us here:
As threats against BDS organisers have increased over the past few years, lawyer activists founded Palestine Legal, a Chicago-based organisation dedicated to protecting the civil and constitutional rights of people in the US who speak out for Palestinian freedom.
Several BDS supporters who received this email contacted the organisation, which issued a statement saying that all attempts to “blacklist” boycott supporters are anti-constitutional, and strictly serve to intimidate and threaten activists.
“As faculty advisor to Students for Justice in Palestine and member of Faculty for Justice in Palestine at UC Davis, and an academic boycott organizer involved in national campaigns, I've noticed the chilling effect that Zionist blacklists and smear campaigns have had on activists involved in the Palestinian justice movement, especially on campuses where administrators routinely discipline students who dare to demand equality and justice for the Palestinian people,” Sunaina Maira, professor of Asian American Studies at the University of California Davis, and member of the US campaign for the Academic and Cultural Boycott of Israel, told MEE.
“The tactics that alt-right activists and white nationalist groups are using to attack faculty and undermine academic freedom have long been used by Zionists across the US to create what Steven Salaita called the 'Palestine exception' to free speech,” she said.

“Palestinian/Arab and Muslim students, in particular, struggle with the erasure of their identity and ignorance of their history in classrooms and also have to deal with anti-Palestinian/Arab racism and Islamophobia, which is only intensified in the current moment.”
University administrations have also been quite unforgiving of pro-Palestine, pro-BDS student organisations, as evidenced by the disciplining measures against them.
Fordham University, for example, did not approve the formation of an SJP chapter last year, and most recently, the SJP chapter at UC Irvine has been placed on probation for two years, even though UC Irvine is one of the campuses surveyed in the Stanford study, which shows Jewish students feeling comfortable, safe, and unthreatened on their campuses.

'Cheap scare tactic'

Some BDS supporters, however, are ridiculing the “blacklist” threat, as many posted on social media that they want to be included in that fine list, giving details of their affiliation and activism. And many blacklisted individuals are also dismissing the threat.
"As outlined by Palestine Legal, Outlaw BDS's email is a cheap scare tactic with no merit.” Remi Kanazi, a New York-based poet and BDS organizer who was listed on the “outlawBDS” site, told MEE.
 
“This is another attempt, albeit a shoddy one, to silence Palestinians and BDS organisers through coercive means,” she said. “But BDS is only gaining ground by the day. We may not have a multi-million dollar PR machine and state representatives backing us, but we have truth and history on our side.
“From the Movement for Black Lives to student groups and academic associations across the country, folks are stepping up, often at great risk of attack, to show principled support for Palestinian liberation, and that foundation will only strengthen going forward," Kanazi said.
With its ultimate goals being an end to the violation of the human rights of the Palestinian people, BDS has always stated that it is above all an anti-racist movement. As such, it opposes and denounces all forms of racism, including anti-Semitism. Indeed, a significant percentage of the membership of Students for Justice in Palestine chapters nationally is Jewish, as are many organisers within various pro-Palestine justice groups, from the US Campaign for Palestinian Rights to the US Campaign for the Academic and Cultural Boycott of Israel, to Jewish Voice for Peace, and more. 

"As I have observed at the University of Hawaii, the Proud Boys have a structure that depends on making public statements about racism and anti-Semitism that are contradictory and confusing,” Cynthia Franklin, faculty member at the University of Hawaii, co-founder of Jewish Voice for Peace Hawaii, and a member of the Organising Collective of the US Campaign for the Academic and Cultural Boycott of Israel, told MEE.
“This incoherence and their frat-like idiocy does not mean we should not take them seriously,” she said.
“Their agenda is consistently - and violently - anti-Semitic, anti-indigenous, racist, and patriarchal,” Franklin said. “Along with other influences, they are creating a lack of safety on my campus where swastikas have been appearing. This is unnerving and frightening, and as a Jewish person who is also anti-Zionist, it calls for new strategies in organising against anti-Semitism as well as against Zionism."
Indeed, as the national political tensions find their way onto campuses around the country, students and faculty will undoubtedly be gaining a lot more than strictly academic knowledge this year.
Nada Elia is a Diaspora Palestinian writer and political commentator, currently working on her second book, Who You Callin' "Demographic Threat?" Notes from the Global Intifada. A professor of Gender and Global Studies (retired), she is a member of the steering collective of the US Campaign for the Academic and Cultural Boycott of Israel (USACBI)
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.


======================================================
 

Palestine Legal 
Palestine Legal is an independent organization dedicated to defending and advancing the civil rights and liberties
of people in the US who speak out for Palestinian freedom.

New York

2017:

In March 2017, with almost no notice, no public hearing, no opportunity for public input, the New York State Senate passed three anti-protest bills targeting Palestine advocacy.
  • S.2492 would create a state-sponsored blacklist of individuals, organizations, and companies that support boycotts for Palestinian rights, and would unconstitutionally deny them state benefits. When a previous iteration of S.2492 failed to pass the New York State legislature in 2016, Governor Cuomo side-stepped the democratic process, signing a widely criticized Executive Order similar to the failed bill (the Executive Order does not blacklist individuals).
  • A version of S.2493 similarly failed to pass the legislature in 2016. As the bill’s sponsor notes, the purpose of the bill is to “prohibit student organizations that participate in hate-speech, including advocating for the Boycott, Divestment and Sanctions (BDS) of Israel and American allied nations from receiving public funding.” But the Supreme Court has made it clear that the state may not condition a benefit on the requirement that one forgo a constitutional right, including the right to support and advocate for BDS.
  • In 2014, a previous iteration of S.4837 also failed to pass the New York State legislature after public outcry. This bill takes aim at academic associations and entities that support BDS by threatening to withhold state funding from them. A 2014 New York Times editorial called the bill an “ill-considered response to the American Studies Association and would trample on academic freedoms and would chill free speech and dissent.”
Share with your lawmakers:

2016:

Executive Order No. 157

UPDATE: On June 5, 2016, Governor Andrew Cuomo signed Executive Order No. 157 (EO 157) Directing State Agencies And Authorities To Divest Public Funds Supporting BDS Campaign Against Israel.

Bills

The most far-reaching, unconstitutional anti-BDS bills in the country are currently under consideration by the New York Legislature.
UPDATE: On June 6, 2016, Sen. Martins introduced SB 8017 which seeks to amend New York’s education law to defund any student group that “directly or indirectly promotes, encourage or permits” boycotts “based on race, class, gender, national origin” and other protected categories. 
S6378A/A9036* and S6086/A8220A** would:  1) create an online blacklist of individuals, non-profit organizations, companies, and other entities that support boycotts of Israel; 2) prohibit blacklisted individuals and entities from doing business with the state of New York; and 3) prohibit state pension funds from investing in companies engaged in politically motivated boycotts of Israel.
*S6378A/A9036 also apply to boycotts directed toward an "allied nation" of the U.S.
**A8220A excludes "individuals" from the blacklist it would create.
Find out more:



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CCR, Palestine Legal, and Other Rights Groups Respond to New Wave of Bills Aiming to Suppress Palestine Advocacy


Letters Submitted to Lawmakers in Massachusetts, South Carolina, Maryland, Texas, Virginia, and U.S. Congress
As part of a continuing effort to challenge bills that threaten core First Amendment-protected activity in support of Palestinian rights and raise serious due process concerns, CCR and other rights organizations submitted letters to lawmakers in Massachusetts, South Carolina, Maryland, Texas, Virginia, and the U.S. Congress opposing proposed legislation. These letters follow from the efforts of CCR, Palestine Legal, and other allies to challenge legislation in New YorkCaliforniaOhio, Georgia, New Jersey, and Pennsylvania. These bills are part of a growing trend of introducing legislation intended to silence Palestinian rights advocacy in numerous states and the U.S. Congress. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.
 

Massachusetts

On July 11, 2017, Defending Rights & Dissent, CCR, the Massachusetts chapter of the National Lawyers Guild, and Palestine Legal sent a memorandum to Massachusetts legislators opposing S.1689 and H.1685, anti-boycott bills that would require state contractors to certify that they are in compliance with state anti-discrimination laws and will not cease to do business with others based on certain protected categories. While the bill, which does not offer any new civil rights protections, does not mention BDS, there is concern that it may be inappropriately applied to BDS campaigns, as several of the bill's supporters have expressed an intention to target BDS.
The text of the memorandum is below.
 

South Carolina

On March 2, 2017, CCR, Palestine Legal, the American-Arab Anti-Discrimination Committee, the Arab American Institute, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Carolina Peace Resource Center, Jewish Voice for Peace, the National Lawyers Guild – Palestine Subcommittee, the U.S. Campaign for Palestinian Rights, and the U.S. Palestinian Community Network sent a memorandum to South Carolina lawmakers opposing H.3643, a bill that proposes to amend South Carolina's education laws to classify political speech critical of Israel as antisemitism when investigating discrimination on college campuses.  The bill would require schools to incorporate a widely discredited, overly broad definition of antisemitism that includes virtually all criticism of Israeli government policies while not providing any further protections for Jewish students.
The text of the memorandum is below.
 

Maryland

On February 22, 2017, CCR, Palestine Legal, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Maryland National Lawyers Guild, and the Montgomery County Civil Rights Coalition sent a memorandum to Maryland lawmakers opposing HB 949 and SB 739, anti-boycott bills that would require Maryland to create a blacklist of "persons" - including individuals and community organizations - that engage in BDS and prohibit the state from investing in those "persons."
The text of the memorandum is below.
 

Texas

On February 21, 2017, CCR, Palestine Legal, CAIR-Texas, National Lawyers Guild – Palestine Subcommittee, and the Bill of Rights Defense Committee/Defending Dissent Foundation sent a memorandum to Texas lawmakers opposing HB 89 and SB 134, anti-boycott bills that would require Texas to create a blacklist of companies that support BDS campaigns and prohibit the state from investing in or contracting with those entities.
The text of the memorandum is below.
 

Virginia

On January 27, 2017, CCR, Palestine Legal, and the Bill of Rights Defense Committee/Defending Dissent Foundation sent a memorandum to Virginia lawmakers opposing HB 2261, a bill that was pending in the Virginia House of Delegates. The bill proposed to amend Virginia's Human Rights Act, which already prohibits religious discrimination, to incorporate a widely discredited, overly broad definition of antisemitism that includes virtually all criticism of Israeli government policies. If enacted, the act would have classified political speech supportive of Palestinian human rights as unlawful discrimination in the workplace, in public accommodations, and in educational institutions in Virginia. The bill died in committee on February 8, 2017, but could return in the next legislative session.
The text of the memorandum is below.
 

U.S. Congress

On December 5, 2016, CCR, Palestine Legal, the National Lawyers Guild, the U.S. Campaign for Palestinian Rights, Jewish Voice for Peace, the American-Arab Anti-Discrimination Committee, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Friends Committee on National Legislation, and American Muslims for Palestine sent a memorandum to U.S. Congress members opposing the Anti-Semitism Awareness Act. The bill, which passed the Senate on December 1 by unanimous consent and without debate, would have required the Department of Education to employ a discredited, overbroad, and vague definition of antisemitism that conflates it with criticism of Israeli government policy by including any speech deemed to “demonize,” apply “double standards” to, or “delegitimize” Israel. While purporting to address antisemitic incidents on campuses, the bill instead targeted Palestine advocacy while providing no new protections for Jewish students. The so-called "State Department definition" had been previously considered and rejected by the University of California, and the definition's own author opposed the bill. The bill died in the U.S. House on December 12, 2016, but could return in the next legislative session.
The text of the memorandum is below.
 
July 11, 2017
Dear Hon. Members of Joint Committee on State Administration and Regulatory Oversight,
The undersigned organizations are writing to express our strong opposition to S.1689/H.1685. If enacted, this bill would require prospective state contractors to certify, under penalty of perjury, that they are in compliance with pre-existing state anti-discrimination laws and that they “do not currently, and will not during the duration of the contract, refuse, fail, or cease to do business” with others based on enumerated protected categories.
While we strongly support anti-discrimination laws, S.1689/H.1685 will add no new civil rights protections. Instead, as its supporters have made clear, S.1689/H.1685 is aimed at countering Boycott, Divestment, and Sanctions (BDS) campaigns for Palestinian rights, which use First Amendment-protected nonviolent tactics to promote human rights. Regardless of your personal opinion of BDS campaigns or their methods, goals, or central claims, BDS campaigns employ First Amendment-protected speech activities. A state legislature cannot try to suppress First Amendment protected speech.
Although human rights boycotts, such as boycott campaigns for Palestinian rights, do not constitute any type of discrimination, this bill is packaged as anti-discriminatory. In reality, however, the bill has serious First Amendment implications: if enacted, it could be misapplied to penalize those making ethical business decisions in line with BDS principles, and would create a chilling effect on those considering such positions.
S.1689/H.1685 specifically targets BDS campaigns
S.1689/H.1685 does not on its face appear to impact BDS campaigns. It makes no mention of BDS, Palestine, or Israel. Instead, the bill purports to address discrimination in violation of Massachusetts state law. For reasons explained below, BDS campaigns are not discriminatory.
A number of the bill’s supporters, however, both inside and outside the legislature, have expressed animus towards BDS along with an acknowledgement that the intent of S.1689/H.1685 is to target BDS campaigns.
For example, in a press release authored by the Jewish Community Relations Council of Greater Boston (JCRC), Anti-Defamation League (ADL), Committee for Accuracy in Middle East Reporting (CAMERA), and other groups supporting the bill, Representative Steven Howitt, a co-sponsor of the bill, was quoted as saying: “This bill clarifies to businesses that either support BDS or who boycott Israeli-owned businesses and products that the Commonwealth of Massachusetts will not engage in commerce with them.”1
A regional representative of the ADL was quoted as saying, “This legislation recognizes and rejects the insidious and destructive nature of BDS campaigns.”2
In a JCRC action alert asking supporters to contact their legislators to express support for this bill, JCRC claims, “This bill echoes similar anti-BDS laws passed in several other states as well as an executive order in New York and underscores the strength of the Massachusetts-Israel relationship.”3
This bill offers no new civil rights protections. It creates no new protected classes, instead duplicating an existing requirement that state contractors certify under penalty of perjury that they are not engaged in discrimination.
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.
BDS campaigns employ boycotts to effect political, economic, or social change, and thus constitute constitutionally protected speech activities
Because BDS campaigns are not a form of unlawful discrimination, the bill as written should not apply to BDS. However, if enacted and enforced against BDS campaigns, it would be unconstitutional.
In 1982, the Supreme Court ruled that boycotts to “bring about political, social, and economic change” are a form of political speech, association, and assembly protected by the First Amendment.4 Political speech receives the maximum protection afforded by the First Amendment. BDS campaigns are a response to a 2005 call from Palestinian civil society for nonviolent boycotts to be used as a tactic to pressure Israel to comply with its obligations under international law to recognize the rights of the Palestinian people. The call demands that Israel “fully [comply] with the precepts of international law by:
  1. Ending its occupation and colonization of all Arab lands and dismantling the Wall;
  2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and
  3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.”5
Regardless of what one thinks of these demands, they are undeniably demands for political change, as are boycotts seeking Israel’s compliance with them. Indeed, BDS was inspired by similar boycott campaigns that helped end racial segregation in the U.S. and Apartheid in South Africa.
While the state has broad procurement powers and there is no right to receive a public benefit, the Supreme Court has for decades articulated what is known as the “unconstitutional conditions doctrine.” According to this doctrine, even if someone does not have a right to receive a public benefit, they cannot be denied one due to their exercise of First Amendment-protected speech.6
In the 1950s, the state of California required individuals to sign a loyalty oath in order to receive a tax benefit for veterans. California argued that this was not an infringement of the First Amendment, as the tax benefit was a privilege rather than a right. However, the Supreme Court stated that “[t]o deny an exemption to claimants who engage in certain forms of speech is, in effect, to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.”7
This principle has been applied far beyond the provision of tax benefits; it has been applied to any public benefit. The Supreme Court has found that the government cannot elect not to renew an employee’s contract because of their First Amendment protected speech, nor can the government require that recipients of funding to fight HIV/AIDS state their opposition to the legalization of sex work.8 Government contracts are a public benefit and thus cannot be denied on the basis of political views. The Supreme Court has explicitly ruled that the government cannot penalize its contractors based on their First Amendment-protected political beliefs, associations, and activities.9 The state’s procurement powers are not exempt from the First Amendment's protection of free speech.
A human rights boycott is not national origin discrimination
A human rights boycott does not constitute national origin discrimination. Such boycotts do not target individuals due to national origin, but instead target a state because of human rights abuses, as well companies and institutions because of their complicity in those abuses. The intent of such boycotts is not to discriminate, but to change the political policies of a government. This concept is illustrated by the fact that in the past, Massachusetts has divested its pension funds either partially or completely from companies doing business in Sudan, Iran, Northern Ireland, and South Africa. Additionally, Massachusetts passed a law restricting state
entities from buying goods from companies doing business with Burma.10
These boycotts did not discriminate against individuals because of their national origin, but attempted to influence the human rights policies of the respective nations. Similarly, those who participate in or support BDS campaigns seek to change Israeli policies that violate the human rights of the Palestinian people by boycotting institutions and companies that are complicit in or profit from these policies.
Additionally, while it is permissible for the state to boycott or divest from companies as part of a human rights boycott, this is fundamentally different from denying contracts to or investment in individuals or companies for participating in boycotts for political, social, or economic change. While the former seeks to change the policies of a foreign government, the latter seeks to deny a public benefit based on the exercise of First Amendment-protected speech. Such denial violates the unconstitutional conditions doctrine, as outlined above.
Since BDS campaigns do not constitute national original discrimination, we do not regard this bill as applicable to BDS. If this bill were to be applied to BDS, it would be unconstitutional for the reasons outlined above.
Public policy concerns with S.1689
While the bill on its face should not limit the First Amendment rights of Palestinian human rights advocates, we are concerned that this bill will chill constitutionally protected speech, limit debate, and stifle dissent.
Robust debate strengthens our democracy and boycotts have often played a role in that debate, including boycotts of “allied nations.” In the past, the U.S. considered the Apartheid regime in South Africa and the military junta of General Augusto Pinochet in Chile allies. Responding to calls from the African National Congress and the Worker’s United Center of Chile, respectively, international solidarity activists boycotted South Africa and Chile. In many cases, these boycotts became the main nexus of organizing solidarity campaigns. In the U.S., grassroots solidarity movements played a role in altering U.S. foreign policy towards both Apartheid South Africa and the military junta of General Augusto Pinochet in Chile. And the history of boycotts is much older, both in the U.S. and around the world. During the colonial period, those seeking independence from Britain boycotted British goods. U.S. abolitionists boycotted goods produced by slave labor. Opponents of the Japanese invasion of China boycotted stockings made from Japanese silk. Boycotts were of particular importance to the U.S. Civil Rights movement. As a result, these early boycotters are today remembered as human rights pioneers, which illustrates why the freedom to boycott U.S. “allies” is vital to a robust democracy.
The importance of boycotts as a tactic is underscored by the fact that Massachusetts has, on five separate occasions, divested its pension fund from certain companies in order to promote social change. This is in addition to the state’s boycott of companies doing business with Burma.11
The need for robust democratic debate is no less pressing with regard to Israel and Palestine. Yet, instead of promoting such a debate, S.1689/H.1685 will create substantial confusion. Prospective contractors that support, advocate for, or engage in BDS could correctly assert that they are not discriminating or refusing to do business with anyone based on national origin. But if the law is incorrectly interpreted as applying to BDS activities, these contractors face rescission of their contracts or prosecution for perjury or felony. Fearful of these consequences, prospective contractors who take an ethical position to boycott companies or institutions complicit in human rights abuses may decide to halt their constitutionally protected boycotts.
We know that whenever the state takes measures to suppress a social movement, the effects of that suppression are felt beyond the immediate targets of the legislation in question. This bill may not on its face target BDS supporters, but the subtext is apparent to supporters of BDS and will, as a result, cast a wide chill over public discussion of the ongoing crisis in the Middle East. Support for BDS campaigns has gained significant traction in recent years, and churches, professional associations, labor unions, and student governments have debated varying degrees of support for BDS. A confusing bill that is promulgated as anti-BDS will cause Massachusetts residents to think twice before speaking in favor of Palestinian rights or engaging in constitutionally protected boycott campaigns.
Given the history of boycotts as a tool to advance human rights and social justice, and the unique role of boycotts in the U.S. and Massachusetts, the General Court should promote, protect, and defend the right to boycott, not seek to hamper it.
Conclusion
The undersigned groups are dedicated advocates of civil rights; we oppose S.1689/H.1685 precisely because it is antithetical to the promotion of civil and human rights. This bill offers no new civil rights protections, is rooted in substantial part in animus towards BDS campaigns for Palestinian rights, would violate the Constitution if applied to deny state contracts to persons or entities engaged in BDS, and will have a chilling impact on constitutionally protected speech.
Sincerely,
Defending Rights & Dissent
Center for Constitutional Rights
National Lawyers Guild, Massachusetts Chapter
Palestine Legal
 
H.3643 is Unconstitutional and Must Be Opposed 
H.3643 proposes amending South Carolina’s education laws by directing public colleges and universities to classify virtually all political speech critical of Israel and Israeli government policies as anti-Semitic when “reviewing, investigating, or deciding whether there has been a violation of university policy prohibiting discriminatory practices on the basis of religion.” H.3643 is a blatantly unconstitutional attack on individual liberties, academic freedom, and human rights.
By endorsing a widely criticized, vague, and overbroad definition of anti-Semitism, H.3643 will legitimize censorship of and punishment for political speech supportive of Palestinian human rights. Because this bill targets the expression of viewpoints that some lawmakers may disfavor, it invites South Carolina to violate the First Amendment of the U.S. Constitution.
Further, at a time when bias incidents and hate crimes, including those motivated by anti-Semitism and Islamophobia, are on the rise, this bill provides no new legal protections for Jewish or other residents of South Carolina. On the contrary, if enacted, this bill will almost certainly increase unwarranted government suspicion, surveillance, and investigation into the lives of Muslim and Arab students in South Carolina as well as all students – including many Jewish students – who advocate for Palestinian human rights. As a result, this bill may actually encourage Islamophobia and anti-Semitism. Instead of offering constructive solutions to counter the disturbing rise in discrimination and bigotry that has been documented in recent months, this bill will compound the problem while trampling on Constitutional rights. We call on you to oppose H.3643.[1]
I. Applying the definition of anti-Semitism endorsed by H.3643 domestically would violate the First Amendment 
H.3643 would incorporate a widely-criticized, overbroad definition of anti-Semitism that is currently used for limited international monitoring purposes by the U.S. State Department.[2] The State Department definition is not applied domestically, and is not used by any other federal or state government agency. If adopted by South Carolina, it will unconstitutionally restrict First Amendment-protected speech and advocacy supportive of Palestinian human rights. Even the lead author of the State Department definition opposes its use in the university context.[3]
The State Department definition of anti-Semitism distorts and undermines traditional definitions of anti-Semitism by including criticism of Israel. The definition radically departs from traditional definitions of anti-Semitism with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel,” and “delegitimizing Israel.”[4] The “three D’s” brand critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and expressions of hatred against Jewish people. 
This approach denies the legitimacy of extensive and widely recognized documentation of Israel’s human rights abuses, and claims that criticism of Israel’s policies and practices is in fact motivated by hatred of Jewish people and not a concern for Palestinian rights. Moreover, distorting the real definition of anti-Semitism by incorporating criticism of Israel distracts from and undermines the prevention of and relief from truly discriminatory practices.
Because of the State Department definition’s vagueness and overbreadth, bringing within its scope virtually all speech supportive of Palestinian rights, its incorporation into South Carolina’s education laws would violate the First Amendment. Such violations are particularly troubling given the nature of the speech being targeted: Palestinian rights and Israeli government policies are important matters of public concern, regularly debated in the media, in the halls of government, and on college campuses.
The Supreme Court has frequently reaffirmed that speech on public issues – like Palestinian rights – occupies the “highest rung on the hierarchy of First Amendment values” and is therefore “entitled to special protection.”[5] Codifying the State Department definition would violate this principle, and would require the state to engage in unconstitutional content and viewpoint-based discrimination. The First Amendment savings clause tacked onto the end of this bill does not magically save it. Requiring public colleges and universities to use the State Department definition when investigating alleged instances of anti-Semitism is tantamount to inviting these government actors to violate the First Amendment.
 
II. The definition of anti-Semitism endorsed by H.3643 is particularly destructive to colleges and universities that value unfettered speech
 
Adopting a definition of anti-Semitism that encompasses even the most routine criticism of a nation-state is particularly inappropriate for South Carolina’s educational institutions because of the essential role that academic freedom and unfettered  debate play in the university setting. The United States Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[6] The State Department definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry.
Would a mock-checkpoint on a campus quad, aimed at raising awareness about the way Israeli military checkpoints severely curtail Palestinians’ freedom of movement, be considered demonizing Israel, and therefore anti-Semitic? Would a lecture on Israel’s violations of international law be considered delegitimization of Israel? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard against Israel? Similar accusations have been made against activities on college campuses by the same Israel advocacy groups that support legislation like H.3643.[7] Notably, criticism of Israeli government policy has been found, again and again, to be protected political speech, not discrimination against a protected group.[8]  Nevertheless, this is the type of inquiry South Carolina’s educational institutions will be required to enter into if this bill becomes law.
The University of California and other universities have already been subjected to pressure to adopt the anti-Semitism definition endorsed by this bill, and have ultimately rejected it due to free speech concerns.[9] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[10] across the political spectrum, media,[11] students,[12] graduate student instructors,[13] and Jewish[14] and other civil rights organizations.[15] Jewish commentators,[16] including the State Department definition’s original author, Kenneth Stern, repudiated its use on college campuses.[17]
Legislation similar to H.3643 was introduced – and defeated – in the U.S. Congress in December 2016 after public outcry from human rights and free speech advocates[18] and lawyers,[19] and criticism from the media.[20] Earlier this year, a similar proposal was defeated in Virginia.[21]
South Carolina lawmakers should heed the constitutional concerns this bill raises, and follow other lawmakers in rejecting this blatant attempt to unconstitutionally suppress and chill student advocacy for Palestinian human rights.
III. Conclusion
We appreciate the importance of addressing allegations of anti-Semitism on campus and elsewhere at this time of heightened threats to Jewish and other communities. H.3643’s misguided reliance on the discredited State Department definition of anti-Semitism, however, fails to give colleges and universities the proper tools to fight anti-Semitism and other forms of discrimination. Instead, it will encourage the college and university administrations to infringe on free speech and academic freedom on campus, in violation of the First Amendment.
We call on you to drop consideration of this bill and, instead, engage in meaningful efforts to address the alarming rise in anti-Semitic, racist, anti-Muslim, anti-Arab, anti-immigrant, anti-women, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for such bigotry. This bill will only intensify targeting of already vulnerable communities that are exercising their constitutional rights to speak out for Palestinian rights. It will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occurring on campuses and elsewhere.
H.3643 is an unconstitutional and unwise proposal. It must be vigorously opposed.


[1] This memorandum has been endorsed by the following organizations: Palestine Legal (www.palestinelegal.org); the Center for Constitutional Rights (www.ccrjustice.org); the American-Arab Anti-Discrimination Committee (www.adc.org); the Arab American Institute (www.aaiusa.org); the Bill of Rights Defense Committee and Defending Dissent Foundation (www.bordc.org); the Carolina Peace Resource Center (www.carolinapeace.org); Jewish Voice for Peace (www.jewishvoiceforpeace.org); the National Lawyers Guild – Palestine Subcommittee (www.nlginternational.org/palestine-subcommittee); the U.S. Campaign for Palestinian Rights (www.uscpr.org); and the U.S. Palestinian Community Network (www.uspcn.org).
[2] See Palestine Legal, FAQ: What to know about efforts to re-define anti-Semitism and to silence criticism of Israel, http://bit.ly/2kt31HJ; see also Foundation for Individual Rights in Education, Problematic Campus anti-Semitism Bill Clears Senate, Dec. 2, 2016, https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate.
[3] See Kenneth Stern, Will Campus Criticism of Israel Violate Federal Law? New York Times, Dec. 12, 2016, https://www.nytimes.com/2016/12/12/opinion/will-campus-criticism-of-israel-violatefederal-law.html.
[4] See Palestine Legal FAQ, supra note 2.
[5] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).
[6] Keyishian v. Board of Regents, 385 U.S. 589 (1967).
[7] For example, Kenneth Marcus of the Brandeis Center for Human Rights, a proponent of this bill, was an architect of the failed strategy to use Title VI of the federal Civil Rights Act of 1964 to censor Palestinian rights advocacy on campuses. For more information, see Palestine Legal and Center for Constitutional Rights, The Palestine Exception to Free Speech: a Movement Under Attack in the U.S.: Lawsuits and Legal Threats, http://palestinelegal.org/thepalestine-exception/#tactics7.
[8] For example, the U.S. Department of Education Office for Civil Rights (OCR) has affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive. More information about the four cases are available at the following links: http://palestinelegal.org/thepalestine-exception-appendix#berkeley2 (UC Berkeley); http://palestinelegal.org/the-palestine-exceptionappendix#irvine1 (UC Irvine); http://palestinelegal.org/the-palestine-exception-appendix#santacruz1 (UC Santa Cruz); and http://palestinelegal.org/the-palestine-exception-appendix#rutgers2 (Rutgers University).
[9] See UC Drops Consideration of State Department Anti-Semitism Definition, Palestine Legal, July 22, 2015, http://palestinelegal.org/news/2015/7/22/uc-drops-consideration-of-state-department-anti-semitism-definition.
[10] See Will Creely, State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses, Foundation for Individual Rights in Education, May 22, 2015, https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/.
[11] Editorial, How far should UC go with an anti-Semitism policy, Los Angeles Times, July 16, 2015, http://www.latimes.com/opinion/editorials/la-ed-anti-semitism-20150716-story.html.
[12] Letter, Students ask Janet Napolitano not to endorse conflation of anti-Semitism with critique of Israel, SJP West, June 29, 2015, http://sjpwest.org/2015/06/29/students-ask-janet-napolitano-not-to-endorse-conflation-of-antisemitism-with-critique-of-israel.
[13] UAW Letter to Janet Napolitano, UC Student Workers Union – UAW Local 2865, July 6, 2015, http://www.uaw2865.org/uaw-letter-to-president-napolitano.
[14] Action alert, Tell UC President Napolitano and the UC Regents: criticizing Israel is not anti-Semitic, Jewish Voice for Peace, http://org.salsalabs.com/o/301/p/dia/action3/common/public/?action_KEY=18000.
[15] Palestine Legal, Jewish Voice for Peace, National Lawyers Guild, and the Center for Constitutional Rights sent a letter to Janet Napolitano and the UC Regents outlining First Amendment concerns with the State Department’s redefinition of anti-Semitism. The letter is available at http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/558abe8ae4b050f36b381190/1435156106563/U COPLetterAntiSemitismFinal.pdf.   
[16] See, e.g., Jay Michaelson, Why U. of California Should Dump “Three D” Definition of Anti-Semitism, The Forward, July 22, 2015, http://forward.com/opinion/312358/why-u-of-california-should-dump-three-d-definition-ofanti-semitism.
[17] Kenneth Stern, supra note 3.
[18] See Foundation for Individual Rights in Education, Problematic Campus Anti-Semitism Bill Clears Senate, Dec. 2, 2016, https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate.
[19] See Palestine Legal, Bill aimed at censoring Palestine advocacy fails to pass U.S. House, Dec. 12, 2016, http://palestinelegal.org/news/2016/12/12/bill-aimed-at-censoring-palestine-advocacy-on-campuses-fails-to-pass-us-house.
[20] See Palestine Legal, Media Spotlight: “Anti-Semitism Awareness Act” draws criticism in the media, Dec. 15, 2016, http://palestinelegal.org/news/2016/12/14/media-spotlight-anti-semitism-awareness-act-draws-criticism.
[21] See Palestine Legal, Victory! Unconstitutional bill defeated in Virginia, Jan. 30, 2017, http://palestinelegal.org/news/2017/1/30/virginia-lawmakers-considering-unconstitutional-bill-aimed-at-censoring-palestine-advocacy-1.
 
February 22, 2017
Dear Honorable Member of the Maryland General Assembly,
We are writing to express our opposition to SB739/HB949. This bill is aimed at suppressing First Amendment protected speech by denying public benefits to those who boycott Israel or “Israeli-controlled territories.” In order to accomplish this goal, the bill would task the Board of Trustees for the State Retirement and Pension System with assembling a blacklist of persons engaged in such boycotts. This list is to be based on publicly available information and to be published online. Its definition of “person” explicitly includes “natural persons” and “non government organizations,” meaning that individuals, churches, trade unions, and other civil society groups could wind up on an online blacklist. Such a practice is reminiscent of the worst abuses of the McCarthy Era.
The bill is aimed at the Boycott, Divestment, and Sanctions (BDS) movement, which seeks to use non-violent protest to change Israel’s human rights policies towards the Palestinian people. Regardless of one’s personal opinion of BDS, the First Amendment of the United States Constitution gives all people the right to criticize the policies of both our own government, and that of a foreign government. We recognize that the co-sponsors of SB739/HB949 feel passionately about their opposition to BDS, and that the First Amendment protects those views no less than it protects the views of those who support BDS. The First Amendment, however, prohibits the government from using its power to silence one side of a contentious debate on a matter of public concern.
First Amendment Concerns with Anti-Boycott Legislation
SB739/HB949 singles out those who boycott Israel or “Israeli-controlled territories” for denial of procurement opportunities or investment by Maryland’s pension funds. This violates the First Amendment.
In 1982, the Supreme Court ruled that boycotts to “bring about political, social, and economic change” are a form of political speech.12 Political speech receives the maximum protection afforded by the First Amendment. The BDS movement is a response to a 2005 call from Palestinian civil society for boycotts to be imposed against Israel until it compiles with three demands concerning its treatment of the Palestinian people. They are, in the words of the call itself, as follows:
  1. Ending its occupation and colonization of all Arab lands and dismantling the Wall;
  2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and
  3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.13
Regardless of what one thinks of these demands, they are undeniably demands for political and social change, as are boycotts seeking Israel’s compliance with them.
Additionally, the First Amendment requires that laws be viewpoint neutral; that is, they cannot discriminate against a particular point of view. A law that singles out speech critical of Israel or supportive of Palestinian human rights to be penalized would be subjecting a particular point of view to state sanction.
SB739/HB949 would deny public benefits, in the form of pension fund investment or contracts, to individuals and entities that participate in a boycott of Israel. While the state has broad procurement powers and there is no right to receive a public benefit, the Supreme Court has for decades articulated what is known as the unconstitutional conditions doctrine. According to this doctrine, even if someone does not have a right to receive a public benefit, they cannot be denied one due to their exercise of First Amendment protected speech.14
In the 1950s, the state of California required individuals to sign a loyalty oath in order to receive a tax benefit for veterans. California argued that this was not an infringement of the First Amendment, as the tax benefit was a privilege not a right. However, the Supreme Court stated that “[t]o deny an exemption to claimants who engage in certain forms of speech is, in effect, to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.” 15
This principle has been applied more broadly than just tax benefits; it has been applied to any public benefit. The Supreme Court has found that the government cannot elect not to renew an employee’s contract because of their First Amendment protected speech, nor can the government require that recipients of funding to fight HIV/AIDS state their opposition to the legalization of sex work.16 Government contracts are such a public benefit and thus cannot be denied on the basis of political views. The Supreme Court has explicitly ruled that the government cannot penalize its contractors based on their First Amendment protected political beliefs, associations, and activities.17 The state’s procurement powers are not exempt from the First Amendment's protection of free speech.
The bill’s lead sponsor, Sen. Bobby Zirkin (D-District 11), was quoted in the Baltimore Jewish Times saying, “I just want to ensure that this ridiculous messenger movement against Israel never sees the light of day in our state.”18 Making sure that a political movement does not “see the light of day” is exactly the type of government suppression of political expression the First Amendment was designed to prevent.
Public Policy Concerns with Anti-Boycott Legislation
Robust debate strengthens our democracy and boycotts have often played a role in that debate, including boycotts of “allied nations.” In the past, the US considered Apartheid South Africa and the military junta of General Augusto Pinochet in Chile, allies. Responding to calls from the African National Congress and the Worker’s United Center of Chile, international solidarity activists boycotted South Africa and Chile. In many cases, these boycotts became the main nexus of organizing solidarity campaigns. In the United States, grassroots solidarity movements were able to alter US foreign policy towards both Apartheid South Africa and the military junta of General Augusto Pinochet in Chile. During the colonial period those seeking independence boycotted British goods. Abolitionists boycotted goods produced by slave labor. Opponents of the Japanese invasion of China boycotted stockings made from Japanese silk. Boycotts were of particular importance to the Civil Rights movement. As a result, these early boycotters are today remembered as human rights pioneers, which illustrates why the freedom to boycott US “allies” is vital to a robust democracy. The Maryland General Assembly passed resolutions in support of both the Grape Boycott and the boycott of Apartheid South Africa and currently engages in boycotts and divestment against Iran and Sudan.
The need for robust democratic debate is no less true with Israel-Palestine. Yet, instead of promoting such a debate, SB739/HB949 would chill speech. We know that whenever the state takes measures to repress a social movement, the effects of that repression are felt beyond the immediate targets of the legislation in question. While SB739/HB949 would most directly impact those seeking certain public benefits, it will cast a wide chill over public discussion of the ongoing crisis in the Middle East. The BDS movement has in recent years gained significant traction, and churches, professional associations, labor unions, and student governments have debated varying degrees of support for the BDS movement. The existence of a board that culls through existing public information in order to ascertain and publicize which individuals, businesses, and non-government organizations support BDS will cause Marylanders to think twice before speaking in favor of Palestinian rights. Given the bill’s chief sponsor’s comments about wanting to ensure the BDS movement does not “see the light of day” in Maryland, this appears to be its intent.
Once Maryland is in the business of ruling thumbs up or down on one kind of political boycott or divestment campaign, it opens the floodgates for trying the same with others. Environmental, immigration, LGBTQ, and labor movements (to name a few) have all turned to boycotts and divestment as nonviolent means of making their points — and making America, and the world, a better place. Unless you prevent it, efforts to stigmatize or penalize BDS will serve as an instruction manual for well-heeled or well-connected lobbyists to do the same again and again with other peaceful exercises of free speech.
Given this history of boycotts being used to advance human rights and social justice, and their unique role in US and Maryland history, the General Assembly should be promoting, protecting, and defending the right to boycott, not seeking to hamper it.
Conclusion
SB739/HB949 is unconstitutional, as it would restrict public benefits based on constitutionally protected political expression. By its very design it is meant to have a coercive effect on critics of Israel and supporters of Palestinian human rights with the intent of silencing them. The bill, by mandating the creation of a McCarthy-era style blacklist, will have a chilling effect on political speech. The Maryland General Assembly should reject this legislation and instead work to foster an environment where robust democratic debate can take place on issues of public concern.
We look forward to working with you to keep free speech in the free state.
Sincerely,
Bill of Rights Defense Committee/Defending Dissent Foundation
Center for Constitutional Rights
Maryland National Lawyers Guild
Montgomery County Civil Rights Coalition
Palestine Legal
 
 
HB 89 and SB 134 are Unconstitutional and Must be Opposed
As civil and human rights organizations committed to upholding the rights of individuals and entities to express their political beliefs without fear of government retaliation or retribution, we write to convey our strong opposition to HB 89 and SB 134.[1] These bills would require Texas to create a blacklist of companies that boycott Israel and “Israeli controlled territory” and would prohibit Texas retirement funds and the University of Texas investment management company from investing in those companies. These bills would also prohibit Texas from entering into contracts with companies that boycott Israel and “Israeli controlled territory.”
HB 89 and SB 134 target core political speech and infringe on the freedom to express political beliefs, in violation of the First Amendment to the U.S. Constitution. We urge you to oppose these bills.
A. HB 89 and SB 134 target core political speech in violation of the First Amendment
HB 89 and SB 134 have been introduced at a time when Palestinian human rights activists in Texas and across the country are embracing boycotts to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights.
People in the U.S. are growing increasingly frustrated with the status quo in Israel and Palestine,[2] and with the U.S. government’s complicity in perpetuating Israel’s occupation of Palestinian lands, human rights abuses, and violations of international law. Boycott, divestment, and sanctions (BDS) tactics are modelled after the protest movement that helped end Apartheid in South Africa. BDS enables people of conscience across the U.S. to use First Amendment-protected tactics to collectively protest Israeli government policies.
There are multiple reasons why companies might not do business with Israel, but these bills single out only those which do so to penalize or economically harm Israel or limit commercial relations specifically with Israel. For example, Company A, a boutique clothing shop in Austin may have no business relationships with Israel (or any foreign country) because it is a small, local store with no international business ambitions. Company B, a grocery store chain, boycotts Israeli-made products because Company B heeds the Palestinian call to boycott Israel. Companies A and B both limit commercial relations with Israel in some form. But Company A would be unaffected by these bills, while Company B would be targeted.
The difference in treatment between Company A and Company B is the expression of Company B’s viewpoints in support of a political boycott. But government actions and restrictions cannot be based on the desire to punish First Amendment protected activities that either refrain from being complicit in or aim to discourage a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[3] The Court has specifically held that boycotts “to bring about political, social and economic change,” such as a boycott of Israel for its international law violations, are unquestionably protected by the First Amendment.[4]
It is undisputed that individuals, institutions, and companies may boycott in response to issues of public concern, as some have done historically to challenge racial segregation in the U.S., the apartheid regime in South Africa, abuse of farmworkers, and, currently, fossil fuel companies. Boycott campaigns targeting Israel cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such a differentiation would constitute viewpoint discrimination prohibited by the First Amendment.
B. Denial of public contracts and public pension fund investment, where motivated by a desire to suppress speech, violates the First Amendment
The United States Supreme Court has repeatedly affirmed that government officials’ determinations about what views are acceptable cannot infringe on the First Amendment-protected right to freely express political views – however controversial or unpopular.[5] Thus, under the ‘unconstitutional conditions’ doctrine, the government may not condition a benefit on the requirement that a person forgo a constitutional right. In deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, “[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”[6]
Yet this is precisely what HB 89 and SB 134 would do. By denying public contracts to businesses that engage in boycotts to effect change in Israel’s policies, these bills seek to penalize and inhibit protected speech. Similarly, prohibiting public retirement funds from investing in companies because they seek to uphold human rights would be tantamount to denying a benefit because of constitutionally protected speech. “Such interference with constitutional rights,” the Court stated, “is impermissible.”[7] These bills represent an action by public officials to thwart or penalize speech activities because of the officials' disapproval of the content, and therefore are exactly the type of action that courts have recognized violate the First Amendment.
C. Establishing a blacklist and penalizing blacklisted companies will have a chilling effect on protected speech
These bills also infringe on protected First Amendment activities by subjecting political positions to government approval and penalty. These bills will chill the free speech rights of individuals and businesses by effectively dictating that a position supporting human rights is unacceptable. These individuals and businesses may refrain from adopting ethical political stances regarding Israel/Palestine – a matter of public concern – if they know that making business decisions based on human rights concerns could result in a financial penalty from the state.
In addition, these bills would also discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. While they do not directly prohibit such advocacy, these bills would effectively chill advocates’ voices by exacting a toll on their goal, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[8] Even  if other expressive activity, such as student and community activism urging companies to boycott Israel and respect Palestinian human rights, is not prohibited by these bills, such speech activities are likely to be chilled by this legislation.
Strangely, despite the constitutional concerns raised above, the drafters of these bills included a provision – Section 808.004 – prohibiting lawsuits alleging constitutional violations and placing the burden of lawsuit costs and attorneys’ fees on those bringing the challenge. The legislature cannot legislate away the judiciary’s fundamental role in reviewing the constitutionality of statutes. Section 808.004 is bad law, bad policy, and, perhaps, an unintentional acknowledgement that the bill runs afoul of the U.S. Constitution.
D. Conclusion
We are committed to upholding the First Amendment rights of those opposing complicity in human rights abuses, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government interference. HB 89 and SB 134 would punish companies that use an honored American tactic to effect political change solely because public officials disagree with that tactic in this context. These bills are constitutionally indefensible, and their enactment would necessitate a legal challenge in order to protect the right of any individual or company to engage in speech activities such as boycotts intended to effect social, political and economic change. Allowing these bills to stand would threaten a crucial vehicle by which individuals and groups can make their collective voices heard.


[1] This memorandum has been endorsed by the following organizations: Palestine Legal (www.palestinelegal.org), CAIR-Texas, Houston Chapter (www.cairtexas.com), the National Lawyers Guild – Palestine Subcommittee (http://www.nlginternational.org/palestine-subcommittee), the Center for Constitutional Rights (www.ccrjustice.org), and the Bill of Rights Defense Committee and Defending Dissent Foundation (www.bordc.org).
[2] For example, recent polls indicate that nearly half of Americans support imposing sanctions on Israel to protest Israeli settlement policy. See Shibley Telhami, American attitudes on the Israeli-Palestinian conflict, Brookings Institution, Dec. 2, 2016, https://www.brookings.edu/research/american-attitudes-on-the-israeli-palestinian-conflict.
[3] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982).  
[4] Id.
[5] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”).
[6] O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).
[7] Perry v. Sindermann, 408 U.S. 593, 597 (1972).
[8] Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 421 (S.D.N.Y. 1999).
HB 2261 is Unconstitutional and Must be Opposed
HB 2261 amends the Virginia Human Rights Act to bring within the scope of “unlawful discrimination” virtually all criticism of Israel and Israeli government policies. By adopting a widely criticized, vague, and overbroad definition of anti-Semitism, this bill will classify political speech supportive of Palestinian human rights as unlawful discrimination in the workplace, in public accommodations, and in educational institutions in Virginia.
HB 2261 is a blatantly unconstitutional attack on individual liberties, academic freedom, and human rights. While ostensibly introduced to expand the Human Rights Act’s reach, this bill provides no new legal protection for Jewish or other residents of Virginia who are subjected to discrimination on the basis of their religion, and also fails to cover vulnerable populations – like LGBTQ Virginians – who are currently not explicitly protected.
This bill, rather, targets the expression of certain viewpoints that lawmakers may disfavor, and thereby invites Virginia to violate the First Amendment. It makes a mockery of the state’s Human Rights Act by punishing, rather than uplifting, human rights advocacy. We call on you to oppose HB 2261.[1]
I. The definition of anti-Semitism endorsed by HB 2261, if adopted, would violate the First Amendment
HB 2261 would incorporate a widely-criticized definition of anti-Semitism that is currently used for limited international monitoring purposes by the U.S. State Department.[2] The State Department definition is not applied domestically, and is not used by any other federal or state government agency. If integrated into Virginia’s Human Rights Act, it will unconstitutionally restrict First Amendment-protected speech and advocacy supportive of Palestinian human rights.
The State Department definition of anti-Semitism distorts and undermines traditional definitions of anti-Semitism by including criticism of Israel. The definition radically departs from traditional definitions of anti-Semitism with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel” and “delegitimizing Israel.”[3] The “three D’s” brand critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and expressions of hatred against Jewish people.
This approach denies the legitimacy of extensive and widely recognized documentation of Israel’s human rights abuses, and claims that criticism of Israel’s policies and practices is in fact motivated by hatred of Jewish people and not a concern for Palestinian rights. Moreover, distorting the real definition of anti-Semitism by incorporating criticism of Israel distracts from and undermines the prevention of and relief from truly discriminatory practices, which is the purpose of Virginia’s Division of Human Rights.[4] 
Because the State Department definition is so vague and overbroad, bringing within its scope virtually all speech supportive of Palestinian rights, its incorporation into Virginia’s Human Rights Act would not just distort the purpose and intent of the human rights law, but it would also violate the First Amendment. Such violations are particularly troubling given the nature of the speech being targeted: Palestinian rights and Israeli government policies are important matters of public concern, regularly debated in the media and in the halls of government.
The Supreme Court has frequently reaffirmed that speech on public issues – like Palestinian rights – occupies the “highest rung on the hierarchy of First Amendment values” and is therefore “entitled to special protection.”[5] Codifying the State Department definition in the Human Rights Act would violate this principle, and would require the state to engage in unconstitutional content and viewpoint-based discrimination. Requiring public universities to adopt policies and regulations based on this definition and directing the state attorney general to consider the definition when investigating alleged violations of the Human Rights Act is tantamount to inviting these government actors to violate the First Amendment.
Consider the following example of what could happen if this bill becomes law: A non-profit human rights organization based in Virginia documents human rights abuses in illegal Israeli settlements. A Jewish staff member who strongly supports Israel, alleging the organization’s focus on Israeli settlements “demonizes” Israel, resigns in response. HB 2261 would make it possible for the staff member to file a complaint with the Division of Human Rights in the Virginia attorney general’s office, asserting that the organization’s work created a hostile, anti-Semitic environment for her. This complaint could trigger an investigation and, oddly, a finding that the organization’s human rights documentation violates Virginia’s Human Rights Act. This finding would be consistent with HB 2261, but would be a violation of the First Amendment and a travesty for human rights advocacy.
II. The definition of anti-Semitism endorsed by HB 2261 is particularly destructive to universities that value unfettered speech
In addition to inviting unconstitutional actions in the workplace and in public accommodations, HB 2261 imposes a re-definition of anti-Semitism on educational institutions. Any definition that encompasses even the most routine criticism of a nation-state is particularly inappropriate at Virginia’s educational institutions because of the essential role that academic freedom and unfettered debate play in the university setting. The United States Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[6]
The State Department definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry. Would a mock-checkpoint on a campus quad, aimed at raising awareness about the way Israeli military checkpoints severely curtail Palestinians’ freedom of movement, be considered demonizing Israel, and therefore anti-Semitic? Would a lecture on Israel’s violations of international  law be considered delegitimization of Israel? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard against Israel? Similar accusations have been made against activities on college campuses by the same Israel advocacy groups that support legislation like HB 2261.[7]
Notably, criticism of Israeli government policy has been found, again and again, to be protected political speech, not discrimination against a protected group.[8]  Nevertheless, this is the type of inquiry educational institutions and the state attorney general’s office will be required to enter into if this bill becomes law. The type of viewpoint and content-based discrimination that would be required to determine that educational events are anti-Semitic would be constitutionally intolerable.
The University of California and other universities have already been pressured to adopt the anti-Semitism definition endorsed by this bill, and have ultimately rejected it due to free speech concerns.[9] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[10] across the political spectrum, from media,[11] students,[12] graduate student instructors,[13]and Jewish[14] and other civil rights organizations.[15]  Jewish commentators,[16] including the State Department definition’s original drafter, Kenneth Stern, repudiated its use on a college campus.[17]
Virginia lawmakers would be wise to heed the constitutional concerns raised by these previous attempts to suppress speech critical of Israel, and vigorously oppose HB 2261.
III. Recommendations
Virginia’s Human Rights Act is a crucial anti-discrimination law, and a vital safeguard for Virginians who face discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth, age, marital status, or disability. At a time when bias-motivated incidents, including but not limited to anti-Semitic, anti-Muslim, and anti-Sikh harassment, are on the rise across the country, it is important for state lawmakers to take meaningful and appropriate action to ensure the safety and legal protection of all Virginians.
HB 2261 does not accomplish this goal. Instead of further protecting residents of Virginia against discrimination on the basis of their religion, which the Virginia Human Rights Act already does, this bill attacks Virginians’ constitutionally protected right to express criticism of Israeli government policies. A smarter – and constitutionally sound – approach to expanding anti-discrimination protections for targeted Virginians would do the following:
First, acknowledging that the Virginia Human Rights Act already prohibits religious discrimination, the state legislature should enhance Virginia’s ability to respond to these incidents, including through funding more preventive programs, documenting the problem, and allocating additional resources to the state’s Human Rights Division.
Second, expand the Human Rights Act to include sexual orientation, gender identity, and gender expression as protected classes. HB 2261 as currently drafted adds no new legal protections to Jewish or other residents of Virginia, except against political ideas that some may disagree with. If the state legislature is serious about expanding the Human Rights Act’s protections, lawmakers should add sexual orientation, gender identity, and gender expression to the list of protected classes in §2.2-3901 of the Code of Virginia.
Finally, Virginia lawmakers must recommit to protecting and defending the First Amendment, including the right to criticize government policies – domestic and foreign. In workplaces, public fora, and especially in educational institutions, the free exchange of ideas, particularly on matters of public concern, allows for intellectual growth and development, and ultimately leads to a healthier and more sustainable democracy. Legislators must protect our First Amendment rights, not limit those ideas that they may personally dislike.
As currently drafted, HB 2261 is an unconstitutional proposal that fails to expand legal protections and educational opportunities. This bill must be vigorously opposed.


[1] This memorandum is endorsed by the following organizations: Palestine Legal (http://www.palestinelegal.org), the Center for Constitutional Rights (http://www.ccrjustice.org), and the Bill of Rights Defense Committee & Defending Dissent Foundation (http://www.bordc.org).
[2] See Palestine Legal, FAQ: What to know about efforts to re-define anti-Semitism and to silence criticism of Israel, http://bit.ly/2kt31HJ; see also Kenneth Stern, Will Campus Criticism of Israel Violate Federal Law?, New York Times, Dec. 12, 2016, https://www.nytimes.com/2016/12/12/opinion/will-campus-criticism-of-israel-violate-federal-law.html; Foundation for Individual Rights in Education, Problematic Campus anti-Semitism Bill Clears Senate, Dec. 2, 2016, https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate/.
[3] See Palestine Legal FAQ, supra note 2.
[4] VA Code ANN. §2.2-520 (2016).
[5] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).
[6] Keyishian v. Board of Regents, 385 U.S. 589 (1967).
[7] For example, Kenneth Marcus of the Brandeis Center for Human Rights, a proponent of HB 2261, was an architect of the failed strategy to use Title VI of the federal Civil Rights Act of 1964 to censor Palestinian rights advocacy on campuses. For more information, see Palestine Legal and Center for Constitutional Rights, The Palestine Exception to Free Speech: a Movement Under Attack in the U.S.: Lawsuits and Legal Threatshttp://palestinelegal.org/the-palestine-exception/#tactics7.
[8] For example, the U.S. Department of Education Office for Civil Rights (OCR) has affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive. More information about the four cases are available at the following links: http://palestinelegal.org/the-palestine-exception-appendix#berkeley2 (UC Berkeley); http://palestinelegal.org/the-palestine-exception-appendix#irvine1 (UC Irvine); http://palestinelegal.org/the-palestine-exception-appendix#santacruz1 (UC Santa Cruz); and http://palestinelegal.org/the-palestine-exception-appendix#rutgers2 (Rutgers University).
[9] See UC Drops Consideration of State Department Anti-Semitism Definition, Palestine Legal, July 22, 2015, http://palestinelegal.org/news/2015/7/22/uc-drops-consideration-of-state-department-anti-semitism-definition.
[10] Will Creely, State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses, Foundation for Individual Rights in Education, May 22, 2015, https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/.
[11] Editorial, How far should UC go with an anti-Semitism policy, Los Angeles Times, July 16, 2015, http://www.latimes.com/opinion/editorials/la-ed-anti-semitism-20150716-story.html.
[12] Letter, Students ask Janet Napolitano not to endorse conflation of anti-Semitism with critique of Israel, SJP West, June 29, 2015, http://sjpwest.org/2015/06/29/students-ask-janet-napolitano-not-to-endorse-conflation-of-anti-semitism-with-critique-of-israel.
[13] UAW Letter to Janet Napolitano, UC Student Workers Union – UAW Local 2865, July 6, 2015, http://www.uaw2865.org/uaw-letter-to-president-napolitano/.
[14] Action alert, Tell UC President Napolitano and the UC Regents: criticizing Israel is not anti-Semitic, Jewish Voice for Peace, http://org.salsalabs.com/o/301/p/dia/action3/common/public/?action_KEY=18000.
[15] Palestine Legal, Jewish Voice for Peace, National Lawyers Guild, and the Center for Constitutional Rights sent a letter to Janet Napolitano and the UC Regents outlining First Amendment concerns with the State Department’s re-definition of anti-Semitism. The letter is available at http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/558abe8ae4b050f36b381190/1435156106563/UCOPLetterAntiSemitismFinal.pdf.
[16] See, e.g., Jay Michaelson, Why U. of California Should Dump “Three D” Definition of Anti-Semitism, The Forward, July 22, 2015, http://forward.com/opinion/312358/why-u-of-california-should-dump-three-d-definition-of-anti-semitism/.
[17] Kenneth Stern, supra note 2.
 
 
December 5, 2016
Hon. Bob Goodlatte
2309 Rayburn Office Building
Washington, DC 20515
Hon. John Conyers, Jr.
2426 Rayburn Office Building
Washington, DC 20515
Re:  First Amendment concerns with Anti-Semitism Awareness Act
Dear Rep. Goodlatte and Rep. Conyers:
As civil and human rights organizations committed to racial justice, we support your efforts to confront racism and bigotry on campuses across the U.S. However, we write to raise concerns with the Anti-Semitism Awareness Act (the Act), which directs the U.S. Department of Education (DOE) to consider a widely discredited re-definition of anti-Semitism[1] in assessing whether alleged violations of Title VI of the Civil Rights Act are “motivated by anti-Semitic intent.” This vague and overbroad re-definition conflates political criticism of Israel with anti-Semitism, infringing on constitutionally protected speech.  The re-definition is especially detrimental to universities, where freedom of speech, critical inquiry, and unfettered debate are integral. The re-definition’s application to college campuses has even been repudiated by its original drafter, Kenneth Stern.[2] 
Incidents of racism, xenophobia, Islamophobia, anti-Semitism, anti-Arab sentiment, and other forms of discrimination have spiked in recent weeks,[3] and it is incumbent on lawmakers at all levels of government to take action to ensure safety and security for all people, especially those vulnerable populations targeted by such attacks. The Act does not achieve this goal. Instead of combatting the sources of recent spikes in anti-Semitism in a meaningful way, this bill aims to censor First Amendment-protected advocacy for Palestinian rights. It invites the DOE and universities to violate free speech principles by discriminating against certain viewpoints and chilling one side of an important political debate. For reasons set forth below, we urge you to drop consideration of this bill.
I. Lawmakers must take meaningful action to counter racism, xenophobia, Islamophobia, anti-Semitism, and other forms of discrimination
Incidents of harassment and intimidation against black people, immigrants, Muslims, Jewish people, LGBT people, and women in the U.S. have skyrocketed since the election. The Southern Poverty Law Center (SPLC) recorded over 900 such incidents in the ten days following the election. Some examples include:
  • Immigrant students have been taunted and bullied by classmates chanting “build the wall!”
  • Eighth graders on a Colorado school bus told a Latino student, “Not only should Trump build a wall, but it should be electorcuted [sic] and Mexicans should have to wear shock collars.”
  • In Las Vegas, a white man punched two black men and attempted to assault a black woman, after which he shouted “Donald Trump!” and “White Power!”
  • In Nashville, a white man harassed a woman in a hijab, yelling “[b]e prepared to go back to your country with ISIS…. Donald Trump will kick all of your ass back where you came from.”
  • In Vermont, members of a synagogue found swastikas drawn on the temple’s front door.[4]
Since many incidents go unreported, the SPLC’s report likely represents just the tip of the iceberg.
In this context, it is crucial for lawmakers at all levels of government to take meaningful action to address the concerns of members of targeted communities. Lawmakers can, for example, take steps to ensure the DOE has the resources it needs to investigate such incidents on university campuses.
Instead of addressing the real problems of rising anti-Semitism and other forms of racism and discrimination, however, proponents of the Act are exploiting the moment to pass legislation aimed at stifling and suppressing the First Amendment right to dissent and to criticize Israeli government policies on univeristy campuses.[5] Instead of investigating the types of abuses documented in the SPLC report, the DOE will be directed to investigate the content of film screenings, academic panels, and lectures that are critical of Israeli government policies.
It is not the DOE’s role to be political thought police. The DOE’s duty is to investigate incidents of harassment and discrimination on campus. Empowering the DOE to fulfill that duty is more important than ever.
II. The re-definition of anti-Semitism endorsed by the Act is not appropriate for the university setting and risks violating the First Amendment
The Act purports to address rising anti-Semitism on college campuses, but a close reading reveals that its true purpose is to silence campus advocacy for Palestinian rights and censor any criticism of Israeli government policies. The Act would direct the DOE to consider the State Department’s re-definition of anti-Semitism when determining whether alleged violations of Title VI of the Civil Rights Act are motivated by anti-Semitism. Much of that re-definition is uncontroversial and aligns with a traditional understanding of the term.[6] But the re-definition, which was originally drafted – and subsequently discarded – by a European Union agency,[7] radically departs from that understanding with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel,” and “delegitimizing Israel.”[8] This codifies the false conflation of anti-Semitism with political speech critical of Israeli policies. This approach is inappropriate, especially for universities that value and are obligated to protect academic freedom and First Amendment-protected speech.
a. Applying the re-definition of anti-Semitism in the U.S. violates the First Amendment
The State Department’s anti-Semitism re-definition is not binding law in the United States and is used for the limited purpose of “monitoring and combatting acts of anti-Semitism and anti-Semitic incitement that occur in foreign countries.”[9] It does not apply domestically, and is not used by any other U.S. government agency. Adoption of the re-definition on campuses or elsewhere in the U.S. is a violation of the First Amendment, and requiring DOE to consider the re-definition is tantamount to inviting DOE to violate the First Amendment.
Any consideration of the re-definition should alert lawmakers to the constitutional quandary it poses, and makes clear why such a definition cannot be used domestically. By requiring DOE to consider, for example, whether someone who demands Israel’s compliance with international law asks the same “of any other democratic nation,” the Act unconstitutionally discriminates based on viewpoint and compels speech in violation of the First Amendment (despite Sec. 5 of the Act which claims that it shall not be construed to infringe on First Amendment protected rights). Moreover, an Act requiring the DOE to enter such a morass of viewpoint-based distinctions would chill and invite punishment of constitutionally protected speech. 
In addition, the part of the re-definition that identifies “Anti-Semitism as it relates to Israel” is so broad and vague that it would encompass any and all criticism of Israel. What is a “double standard” with regards to criticism of Israel and how and by whom will it be judged? How many additional countries are students and professors required to criticize when they criticize Israel, and what degree or depth of criticism are they required to make in order to avoid applying a “double standard” to Israel? How would the university define “delegitimizing” or “demonizing” Israel?
Requiring the DOE to consider this re-definition in its investigation of Title VI complaints essentially puts DOE officials and university administrators in the position of violating free speech rights. Indeed, the DOE’s Office for Civil Rights (OCR) has already affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive.[10]
To the contrary, OCR, in addressing the importance of diverse viewpoints and expression on college and university campuses,[11] noted that the activities described in the harassment complaints:
constituted expression on matters of public concern directed to the University community. In the University environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience.[12] 
If DOE is required to investigate the content of political speech by members of the campus community who advocate for Palestinian rights to determine whether it is “demonizing,” “delegitimizing,” or applying “double standards” to Israel, as the State Department’s re-definition of anti-Semitism would require, it will essentially be applying a political litmus test to speech, and thus violating the First Amendment.
Administrators, who have a duty to mitigate racially-hostile environments, would also be pressured to respond to speech and advocacy critical of Israel that Israel advocacy groups already regularly claim meets the criteria laid out in the re-definition. Under the mistaken illusion that it is appropriate to penalize such speech and advocacy, administrators may end up violating First Amendment rights. This could expose universities and well-intentioned administrators to liability.[13]
Further, adoption of the re-definition would almost certainly have a chilling effect on constitutionally-protected speech and academic inquiry. Students, professors, and researchers will inevitably act in ways to avoid review of their activities and avoid the specter of being accused of or labeled with anti-Semitism for their political speech activities.
b. The re-definition of anti-Semitism is destructive to universities that value unfettered speech
The State Department’s re-definition brands critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and anti-Semitism. It does so by denying the legitimacy of widely shared criticism of Israel’s policies and practices on which such advocacy is based and claiming that such criticism is instead motivated by hatred of Jewish people.
In addition to inviting unconstitutional actions, it is especially inappropriate for Congress to impose on the DOE a definition of anti-Semitism that encompasses criticism of Israel because of the essential role that academic freedom and unfettered debate play in our nation’s universities. The U.S. Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[14]
The State Department re-definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry. Would a mock-checkpoint on a campus quad, aimed at raising awareness about Israeli checkpoints, be considered demonizing? Would a lecture on Israel’s violations of international law be considered delegitimization? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard? This is the type of inquiry the DOE will be required to enter into if the Act becomes law.
The University of California (UC) and other universities have already been pressured to adopt, and ultimately rejected, the anti-Semitism definition endorsed by the Act due to free speech concerns.[15] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[16] across the political spectrum, from media,[17] students,[18] graduate student instructors,[19]and Jewish[20] and other civil rights organizations.[21] Jewish commentators,[22] including – as mentioned above – the definition’s original drafter, Kenneth Stern, repudiated its use on a college campus.[23] We urge you to similarly reject this measure.
III. Conclusion
We appreciate the importance of addressing allegations of anti-Semitism on campus and elsewhere. But the Act’s misguided reliance on the rejected re-definition of anti-Semitism fails to give universities the proper tools to fight anti-Semitism and other forms of discrimination. Instead, it will encourage the DOE and universities to infringe on free speech and academic freedom on campus, in violation of the First Amendment. We urge you to drop consideration of this bill and, instead, engage in meaningful efforts to address the alarming rise in anti-Semitic, racist, anti-Muslim, anti-Arab, anti-immigrant, anti-women, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for such bigotry. This bill will only intensify targeting of already vulnerable communities that are exercising their constitutional rights to speak out for Palestinian rights. It will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occuring on campuses and elsewhere.
Sincerely,
Dima Khalidi
Director
Palestine Legal
Maria LaHood
Deputy Legal Director
Center for Constitutional Rights
Natasha Bannan
President
National Lawyers Guild
Yousef Munayyer
Executive Director
U.S. Campaign for Palestinian Rights
Rebecca Vilkomerson
Executive Director
Jewish Voice for Peace
Samer Khalaf
National President
American-Arab Anti-Discrimination Committee
Sue Udry
Executive Director
Bill of Rights Defense Committee and Defending Dissent Foundation
Kate Gould
Legislative Representative for Middle East Policy
Friends Committee on National Legislation
Kristin Szremski
Director of Media and Communications
American Muslims for Palestine
 


[1] Defining Anti-Semitism, Fact Sheet, Special Envoy to Monitor and Combat Anti-Semitism, U.S. Department of State, http://www.state.gov/j/drl/rls/fs/2010/122352.htm.
[2] Kenneth Stern, Should a major university system have a particular definition of anti-Semitism, Jewish Journal, June 22, 2015, http://www.jewishjournal.com/opinion/article/should_a_major_university_system_have_a_particular_definition_of_anti_semit.
[3] Publication, Ten Days After: Harassment and Intimidation in the Aftermath of the Election, Southern Poverty Law Center, November 29, 2016, https://www.splcenter.org/20161129/ten-days-after-harassment-and-intimidation-aftermath-election.
[4] Id.
[5] See, e.g., Anti-Defamation League (@ADL_National), Twitter (Dec. 2, 2016 12:05 PM), https://twitter.com/ADL_National/status/804778450074697728.  
[6] For example, the State Department’s re-definition begins: “Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals  and/or their property, toward Jewish community institutions and religious facilities.” Merriam-Webster defines anti-Semitism as, “Hostility toward or discrimination against Jews as a religious, ethnic or racial group.”
[7] The European Union Monitoring Centre (EUMC), where this description first appeared in 2005 as the result of lobbying efforts by Israel-aligned groups, meant it to be only a “guide for data collection.” (See Seth Berkman, “Anti-Semitism Fight Hinges on Definition,” Forward, September 25, 2012, http://forward.com/articles/163105/anti-semitism-fight-hinges-on-definition/?p=all). It was ultimately discarded even for that limited use due to objections from European organizations. In 2013, it was removed from the agency’s website altogether, over protests by Israeli officials and U.S.-based Israel advocacy groups. (JTA, “EU drops its 'working definition' of anti-Semitism,” The Times of Israel, Dec. 5, 2013, http://www.timesofisrael.com/eu-drops-its-working-definition-of-anti-semitism/).
[8] Defining Anti-Semitism, supra note 1.
[9] See 22 U.S.C. § 2731(b) (emphasis added).
[10] As DOE notes, “harassment must include something beyond the mere expression of views, words, symbols or thought that a student finds personally offensive. The offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment.” Letter from U.S. Department of Education to UC Berkeley, Aug. 19, 2013, re: Case No. 09-12-2259, available athttp://bit.ly/doeucb.
[11] DOE OCR has stated it will not, in its enforcement of anti-discrimination laws, exceed the boundaries of the First Amendment for either private or public universities. See Dear Colleague Letter from U.S. Department of Education, July 28, 2003, http://www2.ed.gov/about/offices/list/ocr/firstamend.html(“OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.”).
[12] See UC Santa Cruz and UC Berkeley DOE determination letters, http://bit.ly/doeucb (Berkeley) and http://bit.ly/doeucsc (Santa Cruz).
[13] Indeed, courts have held that speech addressing public issues – such as Palestine/Israel – rests on the highest rung of the hierarchy of First Amendment values (see Carey v. Brown, 447 U.S. 455 (1980)). Attempts by a government body or a public university to silence one side of the conversation – by claiming that opposition to the state of Israel is anti-Semitic, for example – is contrary to First Amendment principles.
[14] Keyishian v. Board of Regents, 385 U.S. 589 (1967).
[15] See UC Drops Consideration of State Department Anti-Semitism Definition, Palestine Legal, July 22, 2015, http://palestinelegal.org/news/2015/7/22/uc-drops-consideration-of-state-department-anti-semitism-definition.
[16] Will Creely, State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses, Foundation for Individual Rights in Education, May 22, 2015, https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/.
[17] Editorial, How far should UC go with an anti-Semitism policy, Los Angeles Times, July 16, 2015, http://www.latimes.com/opinion/editorials/la-ed-anti-semitism-20150716-story.html.
[18] Letter, Students ask Janet Napolitano not to endorse conflation of anti-Semitism with critique of Israel, SJP West, June 29, 2015, http://sjpwest.org/2015/06/29/students-ask-janet-napolitano-not-to-endorse-conflation-of-anti-semitism-with-critique-of-israel.
[19] UAW Letter to Janet Napolitano, UC Student Workers Union – UAW Local 2865, July 6, 2015, http://www.uaw2865.org/uaw-letter-to-president-napolitano/.
[20] Action alert, Tell UC President Napolitano and the UC Regents: criticizing Israel is not anti-Semitic, Jewish Voice for Peace, http://org.salsalabs.com/o/301/p/dia/action3/common/public/?action_KEY=18000.
[21] Palestine Legal, Jewish Voice for Peace, National Lawyers Guild, and the Center for Constitutional Rights sent a letter to Janet Napolitano and the UC Regents outlining First Amendment concerns with the State Department’s re-definition of anti-Semitism. The letter is available at http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/558abe8ae4b050f36b381190/1435156106563/UCOPLetterAntiSemitismFinal.pdf.
[22] See, e.g., Jay Michaelson, Why U. of California Should Dump “Three D” Definition of Anti-Semitism, The Forward, July 22, 2015, http://forward.com/opinion/312358/why-u-of-california-should-dump-three-d-definition-of-anti-semitism/.
[23] Kenneth Stern, supra note 2.
  • 1.The press release, titled We Stand Together, was released on January 20, 2017 and can be found at https://www.jcrcboston.org/bds-we-stand-together-against-discrimination/.
  • 2.See ibid.
  • 3.This action alert, entitled Support Israel: Urge the Massachusetts Committee on State Administration and Regulatory Oversight to Support Anti-Discrimination Language, can be found at https://www.jcrcboston.org/jcrc-action-alert-discrimination/.
  • 4.See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  • 5.See Palestinian Civil Society Calls for Boycott, Divestment and Sanctions Against Israel Until it Complies With International Law and Universal Principles of Human Rights (July 9, 2005), available at https://bdsmovement.net/call.
  • 6.See Speiser v. Randall, 357 U.S. 513 (1958); Perry v. Sindermann, 408 U.S. 593 (1972); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).
  • 7.See Speiser v. Randall, 357 U.S. 513 (1958).
  • 8.See Perry v. Sindermann, 408 U.S. 593 (1972); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).
  • 9.See O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).
  • 10.Shira Schoenberg, Pension politics: The history of divestment in Massachusetts, Masslive (May 8, 2014), available athttp://www.masslive.com/politics/index.ssf/2014/05/the_history_of_divestment_in_m.html.
  • 11.Ibid.
  • 12. See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  • 13. See “Palestinian Civil Society Calls for Boycott, Divestment and Sanctions against Israel Until it Complies with International Law and Universal Principles of Human Rights” (July 9, 2005), available at https://bdsmovement.net/call.
  • 14. See Speiser v. Randall, 357 U.S. 513 (1958); Perry v. Sindermann, 408 U.S. 593 (1972); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).
  • 15. See Speiser v. Randall, 357 U.S. 513 (1958).
  • 16. See Perry v. Sindermann, 408 U.S. 593 (1972); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).
  • 17. See O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).
  • 18.See Justin Silberman, “Maryland Legislators Will Introduce Anti-BDS Bill,” Baltimore Jewish Times (January 18, 2017), available at http://jewishtimes.com/57394/maryland-legislators-will-introduce-anti-bds-bill/news/.

Attachments 

August 21, 2017

====================================================


Boycott!: The Academy and Justice for Palestine
Sunaina Maira (Author)
American Studies Now: Critical Histories of the Present
Paperback – January 31, 2018

The Boycott, Divestment, and Sanctions movement (BDS) has expanded rapidly though controversially in the US in the last five years. The academic boycott of Israeli academic institutions is a key component of that movement. What is this boycott? Why does it make sense? And why is this an American Studies issue? These key questions and others are answered in this essential short book. Boycott! situates the academic boycott in the broader history of boycotts in the US as well as Palestine and shows how it has evolved into a transnational social movement that has spurred profound intellectual and political shifts. It explores the movement’s implications for antiracist, feminist, queer, and academic labor organizing and examines the boycott in the context of debates about Palestine, Zionism, race, rights-based politics, academic freedom, decolonization and neoliberal capitalism. 

====================================================

BDS and the First Amendment

As part of its public relations campaign to lure unwitting American citizens into supporting unlawful activity, the BDS movement, through affiliated groups, has published a number of quasi-legal memoranda that wrongfully portray BDS support as being absolutely protected by the First Amendment. In a recently published analysis, The Lawfare Project effectively exposed the flawed and misleading BDS legal claims as they relate to New York State law.  Lawfare’s analysis also touched on the Constitutional issues that are involved, which are discussed in greater detail herein.
The leading case on this point is NAACP v. Claiborne Hardware Co.  In Claiborne, notwithstanding the fact that the Constitution’s Fourteenth Amendment explicitly prohibited discrimination against black Americans, local governments in certain areas of the country defied the law to perpetuate anti-black discrimination.  In response, and to apply pressure for compliance with applicable domestic anti-discrimination laws, local civil rights activists boycotted businesses that were affiliated with those engaging in discriminatory activities.While commercial boycotts have a storied history in the United States, the right to boycott is not without limitation.   This is particularly true for boycotts that conflict with established government policy.
Because the boycott activity was undertaken on a local level by those directly affected by flagrant violations of enumerated Constitutional protections and federal laws, and because the boycott was directed at the local perpetrators of the violations,  the Supreme Court found First Amendment protection for the boycotters. The Claiborne court was clear on why it found the boycott activity to be protected, even though it had a disruptive effect on commerce: the boycott was undertaken by those whose Fourteenth Amendment rights were being infringed and it was directed at the infringers.
Claiborne should not be taken, however, to stand for a blanket First Amendment protection for any and all boycott activity, especially that which is in contravention of United States law and policy and which has only an attenuated nexus to domestic concerns.  The mere fact that there may be some distant and speculative offshore effect on a foreign conflict from commercial coercion occasioned by boycotters who choose to agitate in United States’ commercial markets does not vest that activity with absolute First Amendment protections. The Claiborne ruling was predicated on a boycott being implemented to vindicate rights “that lie at the heart of the Fourteenth Amendment itself…to effectuate rights guaranteed by the Constitution itself.”
Those who seek to legitimize BDS activity in the United States conveniently ignore that the Claiborne Court specifically tied First Amendment protections for boycott activity to the effect that the underlying boycott would have on the assertion of Fourteenth Amendment rights of those engaging in the boycott. Whatever one may think of the conflict between Israel and Palestinian Arabs, it is not one governed by the Fourteenth Amendment or any other provision of the Constitution, and the rights of the parties involved are outside the scope and reach of United States’ laws.  Indeed, a strong case can be made that promulgation of BDS activity violates rights of Jewish and Israeli American, rights that are protected by the Fourteenth Amendment.  In addition, existing federal law prohibits support for foreign-sourced boycotts of Israel.  Thus, BDS boycott activity in the United States is not covered Claiborne’s protections.
Both Congress and the Supreme Court have followed the principle that when a boycott interferes with commerce or disrupts important policy goals of the government, the right to boycott is vulnerable to government infringement, particularly if the boycott is not in furtherance of the protection of a substantive right held by United States citizens.  The right to speech is not, by itself, a substantive right for these purposes.
Indeed, in Longshoremen v. Allied International, Inc., the Supreme Court found that boycotts that are political protests intended to punish foreign nations for their offshore conduct may be limited by the government.  The Longshoremen case was couched in facts strikingly similar to that of the illegal BDS boycotts of Israel.  At the time of the Longshoremen action, the United States was embargoing a limited number of specified goods in response to the Soviet invasion of Afghanistan.  The United States explicitly exempted all other goods from the embargo, but a rogue group of activists unilaterally attempted to expand the scope of the embargo by refusing to handle virtually all Soviet goods.
When the Supreme Court took up the case, it found that the applicable provisions of federal law prohibiting boycotts did not infringe the boycotters’ First Amendment rights.  In so finding, the Court explained “…it would seem even clearer that conduct designed not to communicate, but to coerce [commercial conduct], merits still less consideration under the First Amendment.” BDS activity is, at its core, a campaign of coercion.
It is paradoxical that BDS supporters attempt to cloak their unlawful activities with First Amendment protections using Claiborne. First, opposition to boycotts of Israel has been longstanding U.S. government policy.  Second, if there are any analogies between the facts of Claiborne and BDS activities, it would be the connection between the racist and discriminatory policies promulgated by the store owners in Claiborne and the attempts by BDS supporters to implement the same types of discriminatory policies against commerce tied to Israel (and thus, Jews) in the United States. Far from being civil rights activists, BDS is nothing more than a thinly-veiled hate group, reminiscent of those that operated in the American south at the time of Claiborne.
For a more detailed legal analysis of BDS and the First Amendment, see the author’s papers “The Inapplicability Of First Amendment Protections To BDS Movement Boycotts” and “The BDS Movement: That Which We Call A Foreign Boycott By Any Other Name, Is Still Illegal“, which can be downloaded by clicking on the respective links.
 
 
========================================================

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2531130

The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal

128 Pages Posted: 28 Nov 2014 Last revised: 20 Aug 2017

Marc Greendorfer

Zachor Legal Institute; Tri Valley Law
Date Written: January 7, 2015

Abstract

In recent years a movement advocating a program of boycotts, divestitures and sanctions against Israel has developed an increasingly visible position on the world stage. This movement, known as the BDS Movement, originated in the Arab League's boycott of Israel and has grown into a multi-faceted entity. On the one hand, it continues the Arab League's boycott of Israel; on the other hand, it is aligned with radical Islamist groups, including Hamas, and coordinates with such groups as part of an international campaign to attack Israel militarily and commercially. 

The BDS Movement has begun to attract supporters in the United States, consisting of individuals, unions and business organizations. These supporters have been led to believe that their support of the BDS Movement is within the bounds of United States' law.

This paper explores specific United States' laws, including the Export Administration Act's anti-boycott provisions, anti-trust laws, racketeering laws and anti-terrorism statutes, to show that there are a number of federal laws that apply to, and prohibit participation in, the BDS Movement's activities. 

This paper concludes that American individuals and organizations that participate in or support the BDS Movement may be subject to both government prosecution and private party litigation, exposing participants to monetary and criminal penalties. To the extent individuals or business organizations have experienced financial harm from the BDS Movement's activities, such damages may be compensable under applicable United States' laws.

Furthermore, this paper argues that because the federal government's role in regulating foreign affairs and commerce is undermined by the BDS Movement's operations in the United States, and United States' policy towards foreign relations is at odds with the BDS Movement's objectives, the United States Department of Justice is warranted in commencing prosecution against the BDS Movement and its supporters under, inter alia, the Export Administration Act, anti-terrorism laws and RICO.

This paper has been published in the Roger Williams University Law Review. The published version of this paper contains updates and revisions not included in the SSRN version, which was an earlier draft of the paper. 

The portion of this paper demonstrating that First Amendment protections are not applicable to BDS Movement boycotts has been expanded and developed into a separate paper, "The Inapplicabiilty of First  Amendment Protections to BDS Movement Boycotts", available at 
http://ssrn.com/abstract=2676307. That paper was published by the Cardozo Law Review de novo.

=======================================


The Inapplicability of First Amendment Protections to BDS Movement Boycotts

2016 Cardozo L. Rev. de novo 112 (2016)
17 Pages Posted: 21 Oct 2015 Last revised: 29 Jul 2016

Marc Greendorfer

Zachor Legal Institute; Tri Valley Law
Date Written: October 19, 2015

Abstract

The paper has been derived from, and is an expansion of, certain arguments the author made in an earlier legal study of the BDS Movement under United States law, “The BDS Movement: That Which Is A Foreign Boycott By Any Other Name, Is Still Illegal” (hereinafter, the “BDS Legal Study”, available at http://ssrn.com/abstract=2531130) and is meant to rebut recent misleading assertions that the First Amendment protects participation by United States persons in foreign boycotts of Israel. 

The “BDS Movement” is a Palestinian Arab organization with supporters and affiliates throughout the world. This movement, publicly operating under the false banner of promoting civil rights, seeks to destroy the State of Israel through coordinated international commercial and institutional attacks consisting, in part of, a boycott and divestment campaign against Israel. As the BDS Legal Study demonstrated, BDS Movement activity in the United States violates a number of federal and state laws and support for the BDS Movement subjects participants to significant risks, including monetary penalties and criminal liability under federal anti-boycott, anti-trust and anti-racketeering laws. 

As part of its public relations campaign to lure unwitting American citizens and entities into support for unlawful BDS activity, the BDS Movement, through affiliated groups, has published a number of quasi-legal memoranda that wrongfully deem BDS support as being protected by the First Amendment. 

While it is true that commercial boycotts have a storied history in the United States, as with any other right, the right to boycott is not without limitations. When the desire of individuals to effect change through boycotts intersects with the legitimate goals of government, the right to boycott is often inhibited, if not suppressed in its entirety. This is particularly true for boycotts that conflict with established government policy.

===================================================

Pro-Palestinian Activists Targeted With Racist Posters At Colleges


Palestinian rights activists at California universities are being targeted with racist posters as part of a campaign meant to slander them and their movement.
Faculty and students are being slammed as anti-Semitic terrorists with Islamophobic posters on San Francisco State University and UC Berkeley campuses because of their activism with the Palestinian solidarity movement. 
 
 
View image on Twitter
 
these Islamophobic, anti-Arab, racist posters were found all over campus. seriously, SFSU has to do something ASAP @SFSU@gatorpres
The hatemongering posters are part of a vindictive smear campaign spurred by David Horowitz’s controversial group The David Horowitz Freedom Center. Despite his liberal past, Horowitz is an outspoken radical conservative whose extremist views conflate violence with Islam. 
Rabab Abdulhadi, SFSU Ethnic Studies professor, was depicted on a poster in 2016 as “a leader of the Hamas BDS campaign” and a “collaborator with terrorists.” The hashtag #JewHatred appears next to a caricature of a scowling Abdulhadi.
“Obviously it’s really devastating to be accused of things that you have no relationship with,” Abdulhadi told the San Francisco Chronicle. “This is very racist, it is Islamophobic.”
Abdulhadi is a faculty adviser for SFSU’s General Union of Palestinian Students, a group that advocates for Palestinian liberation.
Still, the professor didn’t let the comments get to her. She claims the posters are simply an attempt to “silence us.”
“More and more people in the U.S. are recognizing the question of justice for the Palestinian community,” she said.
The David Horowitz Freedom Center defended its posters on the SFSU campus, claiming they were combating “the efforts of the radical left and its Islamist allies to destroy American values and disarm this country.”
Among the posters plastered across UC Berkeley, 13 members of the campus community were listed by name
“I’m shaken,” Smadar Lavie, a Jewish scholar-in-resident at UC Berkeley who was listed on the poster, said. “It’s my holiday — I’m on my holiday. It’s Rosh Hashanah.”
Horowitz’s attempts to paint advocates for Palestinian justice as anti-Semitic are not only malicious, but could, unfortunately, convince others that standing up for Palestinian rights is tantamount to anti-Semitism — which couldn't be farther from the truth.
These posters are Islamophobic propaganda that conflates criticism of Israeli policy with anti-Jewish sentiments. The Palestinian liberation movement is calling out the injustices executed by the Israeli government and calling for equality for both peoples — an inherent Jewish value.  
Furthermore, SFSU and Abdulhadi are also the targets of a lawsuit by the Lawfare Project, the “legal arm of the pro-Israel community.” This lawsuit hides its anti-Muslim and anti-Arab sentiments by claiming it's protecting Israel and the Jewish people. 
In reality, Lawfare Project Director Brooke Goldstein has claimed Islamophobia is a “made-up term propagated by the Muslim Brotherhood” and remarked that “there’s no such thing as a Palestinian person.”
A statement defending Abdulhadi against these remarks has been signed by 350 Jewish supporters who agree that portraying Palestinian solidarity as anti-Semitism is wrong and hides the Islamophobic intent of these campaigns.
Both UC Berkeley Chancellor Carol Christ and SFSU President Leslie Wong have spoken out against the incidents, but some have argued these attempts aren't enough.
  
Campus police at UC Berkeley have begun an investigation into Horowitz's actions as a hate crime, and it seems only fitting. 
Targeting individuals because of their opposing point of view is not only a cheap, manipulative tactic, but it also paints an ideological foe as a cultural  enemy, which only further deepens the divide between both sides of this issue.



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