Add New Jersey to list of states boycotting the anti-Israel boycotters
State legislature passes pension investment restrictions, Gov. Chrisite expected to sign into law.
Just over a week ago I reported how Rhode Island legislature passes anti-BDS law, becoming the 10th state to pass legislation exercising the state’s right not to subsidize the discriminatory Boycott, Divestment and Sanctions (BDS).
The forms of such legislation in various states focus on pension investments by and/or contracting with state agencies. None of these recent laws, or NY Governor Cuomo’s Executive Order, criminalize or prohibit such boycotts, though some states have longstanding anti-discrimination laws barring boycotts based on national origin, race and other factors.
In May, the New Jersey Senate passed a bill barring pension investments in companies engaging in BDS, and as it moved on to the state Assembly, BDS forces mounted a counter attack, but to no avail.
An overwhelming bipartisan majority in the Assembly passed the law:
The New Jersey Legislature passed legislation that prohibits the state from investing pension and annuity funds in companies that boycott Israel or Israeli businesses.
The bipartisan bill in response to the Boycott, Divestment and Sanctions, or BDS, movement against Israel passed the state’s General Assembly on Monday by a vote of 69-3 with 2 abstentions. It unanimously passed the state Senate in May.
Gov. Chris Christie is expected to sign the bill into law.
Israel not driving Dem & Repubs apart: total bipartisan support gets NJ anti-BDS bill passed: https://t.co/3caskuCDUc @nathanguttman @Daroff
— Eugene Kontorovich (@EVKontorovich) June 27, 2016
Shortly after that, the Senate again approved the legislation unanimously, and Governor Christie is expect to sign it into law.
Needless to say, the boycotters object to being boycotted. The legal arm of the BDS movement, operating under the name “Palestine Legal,” claims the law and similar laws are unconstitutional infringements of free speech.
But that is not the case as Northwestern Law School Professor Eugene Kontorovich explains, Boycotting Israel isn’t free speech:
The First Amendment protects speech, not conduct. The Supreme Court unanimously held, in a case called Rumsfeld vs. FAIR, that the government can deny federal funding to universities that boycott military recruiters. Even though that boycott was based on political considerations, that did not make it protected speech.
Similarly, the act of boycotting Israel does not in and of itself express any political viewpoint. Companies may boycott Israel to prevent further harassment from the BDS movement, to curry favor with Arab states or out of mere anti-Semitism. Unless the company or institution explains its actions , those actions have no message. That is why refusals to do business are not speech.
Indeed, federal law already bans participation in certain kinds of boycotts of Israel — those sponsored by foreign countries — and no one has ever doubted the constitutionality of these measures.
More to the point, the current wave of state anti-boycott measures do not criminalize or prohibit any conduct, let alone speech. The First Amendment allows states to place conditions on companies that want to do business with them. The Supreme Court has repeatedly held that conditioning government money on compliance with anti-discrimination policies does not violate the First Amendment.
BDS boycotters are crybullies who object to boycotts only when directed at them. BDS aggressively and sometimes violently seeks to shut down opposing viewpoints through disruption of speeches and appearances, and by slamming the doors of academia shut in the faces of Israeli Jews who work for Israeli universities. BDS seeks to have governments join their boycott efforts, particularly in Europe. I would take the ‘free speech’ protests by BDS supporters more seriously if they did not devote their lives to depriving others of the rights they claim for themselves.
Moreover, the history of BDS is misrepresented as starting with a grassroots call from Palestinian civil society in 2005. I have researched and written about this. In reality, BDS was conceived at the 2001 Tehran and Durban conferences, the latter of which was so anti-Semitic the U.S. delegation walked out. The boycotts started right after that. The 2005 boycott call was simply a public relations move to dress up old-time anti-Semitism peddled by governments like Iran as “social justice” to appeal to Westerners. It is no wonder that wherever BDS is strong, such as in some European cities, street harassment and acts of violence against Jews have increased.
When the true history and nature of the BDS movement is understood, it’s obvious why BDS boycotts focused exclusively on the only Jewish majority country in the world properly are viewed as discriminatory.
There is no stifling of free speech. BDS supporters are free to espouse their views, but when they engage in discriminatory conduct based on religion and national origin, they cross a legal line.
A good analogy would be anti-discrimination statutes. For example, a business owner may have a constitutional right to espouse discriminatory views. But if that business owner implements those views through employment practices, or creates a hostile work environment by espousing the views in the workplace, that would be unlawful. NY Governor Cuomo’s Executive Order and various statutes in other states don’t even go so far as to make the discriminatory conduct by BDS unlawful, they simply provide that the state will not subsidize discrimination through contracting.
The BDS boycotts are nothing like the boycotts of the U.S. civil rights movement. The U.S. civil rights movement did not use boycotts to deprive others of their civil rights, but rather, to ensure equality for all. BDS, by contrast, uses boycotts to deprive Israeli Jews of their rights both here and abroad. BDS comparing itself to the U.S. civil rights movement not only is historically inaccurate, it’s offensive.
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While I am gladdened by the move to make boycotting contingent upon anti-discrimination policies, I’m also very wary of the Supreme Court’s inclination towards eroding the very rule of law which supports those policies.
Clarence Thomas’ dissent in the recent Abortion rights case made it plain that the courts are venturing far beyond the rule of law which ostensibly is the very foundation of the court.
The States must uphold these anti-discrimination laws even if the federal courts might not, otherwise the very purpose for government becomes tainted. I suspect BDS will try to tie these laws down in courts in the near future, hoping for political activism to win the day.
Now if only they’d boycott the politicians, judges and police who deny me my 2nd and 4th Amendment rights.