The worrisome consequences of the US anti-BDS laws

While the US is deeply divided along political party lines on issues such as immigration, healthcare, abortion, climate change, gun reform, or the seriousness of the COVID-19 threat, one issue that consistently gets bipartisan support—at least at the level of politicians and legislators—is Israel.

Many bills shielding our so-called “strategic ally” from accountability are sponsored by both a Democrat and a Republican, and most get approved uncritically, and often with effusive praise for Israel. It seems that for a majority of US legislators, Israel can do no wrong, and any criticism of Israel is anti-Semitic and must be immediately shut down.

One of the more problematic definitions of anti-Semitism is the “working definition” proposed by the International Holocaust Remembrance Association (IHRA), which shifts the meaning of anti-Semitism from its traditional focus on a hatred of or discrimination against Jews to any criticism of Israel’s abuses of human rights and violations of international law.

"Anti-BDS laws can harm any and all Americans, and effectively impact anyone’s livelihood, strictly because of a person’s political views — a recognized form of freedom of speech"

Thus seven of the 11 examples of anti-Semitism provided by the IHRA working definition directly equate criticism of Israel with anti-Jewish hatred. While the IHRA definition is non-legally binding, it is intended to serve as guidance for the media, educators, and public authorities and has been influential. On Janary 27th, International Holocaust Remembrance Day, ten US states officially adopted this flawed definition. 

More far-reaching in their impact on the freedoms of all Americans are the anti-BDS laws, which actually penalise individuals engaging in boycotts of Israel. By 2021, 35 US states had passed such laws.

The laws can take two forms. One requires individuals contracting with the state’s government to sign a pledge that they are not boycotting Israel, and will not boycott it throughout the term of their employment. The other form is more investment focused, and mandates that public investment funds steer away from companies that boycott Israel.

Now, a new documentary, Boycott, discusses the impact of these anti-BDS laws on American citizens. Directed by Julia Bacha, Creative Director of Just Vision, the documentary follows three individuals - speech pathologist Bahia Amawi in Texas, attorney Mikkel Jordahl in Arizona, and Arkansas Times publisher Alan Leveritt - as they sue their respective states over the right to boycott Israel.

Breaking news: The Eighth Circuit Court of Appeals ruled today that boycotts are not protected by the First Amendment. @ACLU has confirmed it'll take the case to the Supreme Court, with huge implications for free speech in America.🧵

— Julia Bacha (@juliabacha) June 22, 2022

As public employees, the three plaintiffs each had a clause in their contract that bars them from boycotting Israel during the term of their employment. Amawi is a public school employee, Jordahl works as a civil rights advisor for inmates at a state prison, and Leveritt’s newspaper, the Arkansas Times, is dependent on advertising money, much of which came from the (public, state) University of Arkansas.

By showing these three plaintiffs, with widely different backgrounds, as they challenge the anti-BDS clause in their contract, the documentary argues that the anti-BDS laws can harm any and all Americans, and effectively impact anyone’s livelihood, strictly because of a person’s political views — a recognized form of freedom of speech.

Amawi and Jordahl both won their cases, with Amawi returning to work at the Pflugerville, Texas school which had initially asked her to sign the anti-BDS clause, and Jordahl receiving back pay for the work he had done at the Arizona state prison without a contract.

But in a “frightening” development, a US court of appeals upheld the Arkansas law that impacted Leveritt’s case, as it ruled that boycotts fall under commercial activity, not expressive conduct, the latter being protected by the Constitution. 

Alarmingly, the documentary goes on to show how anti-BDS laws can serve as a template for “copycat laws” that would criminalise other forms of protests. This has already become the case with laws that would penalise gun reform activism, and opposition to fossil fuel extraction. A “legislation tracker” on the documentary’s website shows laws that have been passed, or are pending, around the country that impact the right to boycott environmentally unsustainable companies or companies that promote unrestricted gun ownership.

Kentucky’s SB 205, for example, “prohibits the state from entering into a contract with a company unless the company submits a written certification that it is not currently engaged in a boycott of energy companies and will not engage in a boycott of energy companies for the duration of the contract.”

Arizona’s HB 2473, still pending, “would prohibit the state from entering into a contract with a company unless the company submits a written certification that it does not ‘discriminate against a firearm entity’ and will not adopt such a practice for the duration of the contract.”

Indiana’s HB 1409, if passed, “would prohibit the state from entering into a contract with a company unless the company submits a written certification that it does not have any practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and will not adopt such a practice for the duration of the contract.”

"The precedent of these copycat laws, which use the anti-BDS template to criminalise other boycotts, is worrisome for more than Palestine activists"

In most of these cases, the laws do not apply to companies with fewer than 10 employees, or for contracts under $100,000, but they are without a doubt an infringement on “expressive conduct”.

One group that has been heavily pushing the anti-BDS laws, as well as the laws that would criminalise protests of fossil fuels and gun reform, is ALEC, the American Legislative Exchange Council, an ultra conservative Koch brothers venture that drafts legislation for state and federal government on behalf of corporate interests. Specifically, ALEC drafts “model bills” that politicians can customise and introduce in their state’s legislature.

ALEC has long attacked public education, environmental protection activism, trans rights, and even unrealistic caps on credit card interest rates. It previously promoted the “Stand Your Ground” law that resulted in the murder of unarmed Black teenager Trayvon Martin, and supported former President Donald Trump’s efforts to protect confederate monuments. ALEC is also involved in efforts to ban the teaching of Critical Race Theory, and most recently welcomed the Supreme Court’s reversal of Roe v Wade.

Obviously, the precedent of these copycat laws, which use the anti-BDS template to criminalise other boycotts, is worrisome for more than Palestine activists. Hopefully, the documentary Boycott will be shown to progressive organisers, activists, and lawyers who are not necessarily focused on Palestine, so it can serve as a launchpad for new alliances and coalitions that would counter the nefarious influence of ALEC.

As the USA sinks deeper into fascism, there is every reason to wonder "what next?" Will we be criminalized, will we lose our livelihoods, if we boycott anti-abortion states, or bakeries that refuse to cater to gay weddings? Will vegans be considered terrorists? Will educators be fired for teaching about the genocide of this continent’s indigenous peoples?

To protect the fundamental right to boycott, we must organise together.

Nada Elia is a Diaspora Palestinian scholar, writer, public speaker and a member of the Palestinian Feminist Collective.

Follow her on Twitter: @nadaelia48

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.