Campaign to Criminalize Criticism of Israel: A Challenge to Free Speech, Jewish Values

Washington Report on Middle East Affairs, March/April 2019, pp. 24-25

Israel and Judaism

By Allan C. Brownfeld

FREEDOM OF SPEECH AND THE RIGHT TO DISSENT is under attack by Israel’s Washington lobby, the American Israel Public Affairs Committee (AIPAC), as well as by most of the organized American Jewish community and casino mogul Sheldon Adelson, the Republican Party’s single largest contributor. The goal is to make it illegal to advocate a boycott of Israel in protest of its more than 50 years of illegal occupation of the West Bank and East Jerusalem, and its mistreatment of Palestinians.

This effort is being conducted on both the federal and state levels. Already, 26 states have enacted such laws. In the last Congress, legislation introduced in the Senate, called the Israel Anti-Boycott Act, was co-sponsored by Sens. Ben Cardin (D-MD) and Rob Portman (R-OH). In a Dec. 20, 2018 editorial, The New York Times characterized the legislation as “clearly a part of a widening attempt to silence one side of the debate. That is not in the interest of Israel, the United States or their shared democratic traditions.”

The growth of the BDS (Boycott, Divestment and Sanctions) movement, which is the target of this legislation and that in the states, is, in the Times’ view, a reaction to Israel’s move away from a peaceful settlement with the Palestinians, and includes many Jews in its ranks. As the Times notes: “It is not only Israel’s adversaries who find the movement appealing. Many devoted supporters of Israel, including many American Jews, oppose the occupation of the West Bank and refuse to buy products of the settlements in occupied territories. Their right to protest in this way must be vigorously defended.”

Sens. Dianne Feinstein (D-CA) and Bernie Sanders (I-VT) issued a joint statement saying that “while we do not support the BDS movement, we remain resolved to our constitutional oath to defend the right of every American to express their views peacfully without the threat of, or actual, punishment by the government.”

This legislation failed in the last Congress, but was introduced in the new Congress in January as part of a larger bill, which fell 3 votes shy of the 60 needed to overcome a filibuster. Republicans made it clear they weren’t giving up, and planned more votes in the days ahead. A rare Republican dissenter was Sen. Rand Paul (R-KY), who declared: “I am not in favor of boycotting Israel...At the same time, I am concerned about what the role of Congress can and should be in this situation. I strongly oppose any legislation that attempts to ban boycotts or ban people who support boycotts from participating in our government or working for our government. We must be very, very careful here to not let our dislike for something cloud our judgment. America is the land of freedom of expression, and the hallmark of a truly free country is that it allows expressions, speech and actions that we don’t agree with.”

Indeed, America has a long history of embracing peaceful boycotts. It was founded amidst a boycott of English tea. Abolitionists boycotted goods produced by slaves. Rosa Parks led a boycott against segregated buses in Montgomery, AL, which lasted for 381 days in 1955 and 1956. More recently, a peaceful international boycott helped bring down apartheid in South Africa. In the case of NAACP v. Claiborne Co., the Supreme Court held in 1982 that the economic boycott of white-owned businesses by blacks was entitled to First Amendment protection. The court found that “a non-violent, politically motivated boycott” was political speech and was, therefore, protected.

Consider the extremes to which the laws in 26 states now go in criminalizing criticism of Israel. The case of Bahia Amawi is typical. A children’s speech pathologist who has worked for the past nine years with developmentally disabled, autistic and speech-impaired elementary school children in Austin, Texas has been told she can no longer work with the public school district after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel, or “otherwise take any action that is intended to inflict economic harm” on that foreign country.

A lawsuit on her behalf was filed in December in a federal district court alleging a violation of Amawi’s First Amendment right of free speech. Discussing the oath she refused to sign, Glenn Greenwald wrote in The Intercept on Dec. 21, 2018: “The language reads like Orwellian—or McCarthyite—self-parody, the classic political loyalty oath that every American should instinctively shudder upon reading...The received certification about Israel was the only one in the contract that pertained to political opinions or activism. In order to get a contract in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children and even support a boycott of particular U.S. states—such as was done in 2017 to North Carolina in protest of its anti-LGBT law—to continue to work.”

Greenwald pointed out that, “The sole political affirmation Texans are to sign in order to work with the school district’s children is to protect the economic interests not of the U.S. or Texas—but Israel. The anti-BDS oath is the result of an Israel-specific state law enacted on May 2, 2017 by the Texas State Legislature....when Gov. Greg Abbott signed the bill at a ceremony at the Austin Jewish Community Center, he said, ‘Any anti-Israel policy is an anti-Texas policy.’”

The federal courts have agreed with those challenging these laws. In Sept. 2018, a federal court blocked Arizona from enforcing a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court agreed with the American Civil Liberties Union (ACLU) that the law was likely in contravention of the contractor’s free speech rights under the First Amendment. “A restriction of one’s ability to participate in collective calls against Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott,” U.S. District Judge Diane J. Humetewa wrote in her decision granting a preliminary injunction against the law.

This was the second federal court to arrive at the same conclusion: A court in Kansas held that the First Amendment protects the right of citizens “to band together” and “express collectively their dissatisfaction with the injustice and violence they perceive as experienced by the Palestinians and Israeli citizens.”

The ACLU declared that, “The Kansas and Arizona decisions sent a clear message: The First Amendment right to boycott is alive and well. But our work is far from over. Similar contract requirements are on the books in 24 other states. All of these laws violate the First Amendment.”

Legal scholars on both the right and left agree that these laws criminalizing criticism of Israel are in violation of the First Amendment. Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies, expressed the widely shared view that, “It is not a proper function of law to force Americans into carrying on foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad or arbitrary.”

The idea that this legislation somehow is supported by most American Jews is at odds with the growing division among mostly liberal American Jews and the increasingly right-wing Israeli government, which is actively promoting the anti-BDS laws. Editorially, the Dec. 8, 2018 issue of The Jewish News of Northern California described the laws as having “all the appearances of an overbearing government thought-police pressing down on the little guy, holding pay checks hostage to demand ideological support for a country two continents away. What possible business is it of Texas what a random speech pathologist does or doesn’t think about Israel? Condemnation has been swift and brutal and in many cases has crossed partisan boundaries.”

While the organized Jewish community supports Israel’s occupation, the majority of American Jews oppose it, and support the creation of a Palestinian state. Many Jewish critics of Israel support the BDS movement, such as the increasingly popular Jewish Voice for Peace. Others, such as J Street, while opposing BDS, do oppose the anti-BDS legislation which criminalizes criticism of Israel. J Street notes that these laws could have a harmful effect by treating the settlements in the occupied West Bank as similar to or part of Israel proper.

By embracing the anti-BDS laws, AIPAC, the American Jewish Committee and other establishment Jewish groups are not representing the thinking of the vast majority of American Jews. They are turning their backs not only on the First Amendment guarantees of the Constitution, but upon the Jewish value of free and open discussion as well.

If Israel has a good case to make against the BDS movement, it and its American supporters should use our free speech guarantees to make that case. Only those without such a persuasive case would want to silence its opponents by criminalizing their free speech rights. That, it seems, is the path that Israel and its friends have chosen. In a battle against both the Constitution and the Jewish moral and ethical tradition, they are unlikely to succeed.

Allan C. Brownfeld is a syndicated columnist and associate editor of the Lincoln Review, a journal published by the Lincoln Institute for Research and Education, and editor of Issues, the quarterly journal of the American Council for Judaism.