The Washington PostDemocracy Dies in Darkness

Opinion Anti-BDS laws are popular. That doesn’t mean they’re constitutional.

Texas Gov. Greg Abbott (R) has said “anti-Israel policies are anti-Texas policies.” (Nick Wagner/AP)

As an American citizen, Bahia Amawi possesses a number of ironclad rights, the first of which — according to the Constitution — protects her freedom of speech. So when the Pflugerville, Tex., school district refused to renew her annual contract to provide speech therapy for its students because she was, in her view, exercising those rights, she responded like a true American. She sued.

Amawi is on the leading edge of a trend sweeping the nation’s legislatures. Since 2015, more than half the states have passed laws designed to sap strength from the “BDS movement.” This supposedly pro-Palestinian campaign (I’ll explain my doubts on this point later) calls for a broad-based boycott, divestment and sanctions regime against Israel, and it has been going gangbusters for the past 13 years.

The “anti-BDS” law passed in Texas last year bars any public agency in the Lone Star State from doing business with a participant in the movement. Amawi, a speech pathologist, noticed a stipulation to that effect in her new contract as she prepared for her 10th year serving Pflugerville students last summer. When she refused to sign, she lost her job.

Adopted in red states and blue states, typically by large, bipartisan margins, the anti-BDS laws are a reminder of the widespread support for Israel among American voters. Texas Gov. Greg Abbott (R) reflected this spirit while signing his state’s version into law on May 2, 2017 — Israel’s Independence Day. “Anti-Israel policies are anti-Texas policies,” he declared, “and we will not tolerate such actions against an important ally.”

But being popular and being lawful under the Constitution are not always the same thing. “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought,” wrote Justice Oliver Wendell Holmes in 1929, adding: “not free thought for those who agree with us but freedom for the thought that we hate.”

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Whether the Texas law can survive Amawi’s challenge may depend on whether anti-BDS laws are mere updates to existing statutes barring U.S. companies from joining foreign boycotts. Companies don’t make foreign policy; they can’t, for example, choose to defy U.S. economic sanctions. Nor are they free to discriminate on religious grounds, and while the BDS movement is not explicitly anti-Semitic, “all too often, BDS advocates employ anti-Semitic rhetoric and narratives to isolate and demonize Israel,” as the Anti-Defamation League correctly observes.

Even so, I expect there will be more lawsuits such as Amawi’s filed in courthouses across the country. These suits will test how far governments can go in restricting the right of Americans to participate in politically motivated boycotts.

That right was formally recognized in 1982, when a philosophically diverse U.S. Supreme Court ruled that boycotts are a form of constitutionally protected speech, even though they can cause economic damage and even if some supporters of the boycott engage in violence. (The violence is not protected, but the right to boycott is.)

Later, in 1996, the Supreme Court held that the government cannot terminate a contract as punishment for the contractor’s exercise of free speech. In reaching that decision, Justice Sandra Day O’Connor relied on a chain of previous decisions going back to the 1950s in which the high court protected the right to free expression of government employees.

Defenders of the anti-BDS laws maintain that refusing to buy products made in Israel is an economic activity, not a political expression. Under this theory, Amawi has the right, on her own time, to speak in support of the BDS movement — but if she practices what she preaches, Texas can refuse to do business with, or employ, her. Similarly, under the Citizens United doctrine that corporations, being groups of individuals, also have free-speech rights, the owners and employees of a company can express support for the BDS campaign. But their company can be penalized if it refuses to do business with Israeli firms.

We’ll see what the judges say. Meanwhile, I can’t support BDS because it looks to be just another in the sad litany of chimeras dangled in front of the beleaguered Palestinian people. Decade after decade, they’ve been sold the idea that — whether by bombs or boycotts or children’s crusades — the Israelis will someday pack up and leave. Meanwhile, Palestinian leaders, rather than seeking an achievable future, rob them blind.

But at the same time, one wonders how Israel hopes to win the future while losing the battle for world opinion. People understand that peace is a desperately hard road; many of us appreciate that olive branches have often been met with rocks and mortars. But to give up on peace, as Prime Minister Benjamin Netanyahu and the West Bank settlers appear largely to have done, is a recipe for further erosion of support. Israel and its friends can win the fight against BDS only through persuasion and example; outlawing dissent will never work.

Read more from David Von Drehle’s archive.

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