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Lessons Learned On The Frontlines Against BDS

Lessons Learned On The Frontlines Against BDS

My Op-Ed at JNS on court challenges to anti-BDS legislation and ways to improve the laws consistent with First Amendment rights.

I recently published an Op-Ed at JNS (also appearing in Israel Hayom) recapping lessons learned from the success of, and challenges to, state laws addressing anti-Israel boycotts. The Op-Ed is the result of research I have been doing for the Legal Insurrection Foundation on the issue.

Economic boycotts of Israel are part of the broader Boycott, Divestment and Sanctions (BDS) movement. Thirty-five states now have laws barring the states from doing business with entities boycotting Israel – boycotting the boycotters. The ACLU and CAIR have challenged laws in six of the 35 states. The challenges, and court responses to them, reveal ways to improve the laws.

Readers should also keep a lookout for the Eighth Circuit’s decision in Arkansas Times v. Waldrip. The lower court originally upheld Arkansas’ anti-BDS law. The appellate court reversed, then vacated its decision and ordered reargument before the full panel of Eighth Circuit judges. The case was argued on September 21, 2021.

Here is an excerpt from my JNS article:

The post-Holocaust moratorium on openly expressing anti-Semitism is over. Even where blatant targeting of Jews remains unfashionable, it often flourishes masquerading as anti-Israelism. Its latest incarnation is the BDS campaign. States can and should help fight this stealthy discrimination.

Even as more Arab countries recognize Israel, Israel’s high-tech economy flourishes and competing Palestinian leaderships achieve nothing positive for their people, BDS warriors inside and outside the Middle East ramp up a rejectionist narrative painting Israel as a pariah and its supporters (read, “Jews”) as the devil’s handmaidens. The strategy is not just to harm Israel’s economy, but to destroy political and moral support for the continued existence of the world’s sole Jewish state. As for the goal, former BDS co-founder and Hamas leader Omar Barghouti[*] explained: “definitely, most definitely, we oppose a Jewish state in any part of Palestine.” …

But many states are fighting back. Thirty-five of them have passed anti-BDS laws, resolutions or executive orders opposing boycott, divestment, and/or sanctions against Israel. Some are modeled on anti-boycott legislation the United States passed back in the 1970s to counteract the Arab boycott. U.S. law forbids taxpayers from participating in a foreign boycott of Israel.

Anti-Israel groups have targeted anti-BDS laws for extermination. In the course of litigation, they have shone a spotlight on the laws’ strengths and weaknesses. Here are some suggestions for strengthening anti-BDS legislation consistent with First Amendment rights.

Head over to the link for the suggestions.

[*note correction, there are two people of the same name, we are referring to the BDS leader]


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Sorry to be a downer but while you are right as far as the stated goal of boycotting Israel BDS is a failure, but the actual goal of turning European publics against Israel….they had major assistance from mainstream media (like all leftwing causes do) but it is hard to deny trends.

Anti-BDS legislation if struck down could be reapplied with different wording to get around the striking down by a court, but public opinion can’t and won’t be recovered easily.

In fact the United Kingdom has just negotiated a major trade agreement with Israel and has also agreed to collaborate with Israel to prevent Iran from acquiring nuclear weapons, events which I doubt would have occurred were the UK still a member of the European Union.

Since U. S. law covering BDS is predicated on the Constitutional requirement that foreign policy is the sole responsibility of the Federal government, i.e., the President. Is this another law that the Executive is not enforcing?

States have the legal authority to prevent state funds from being invested in companies that support the BDS movement. State pension funds can direct fund managers to sell any stock and not invest in those firms. Those funds have a significant financial impact on corporate activities.
The Ben & Jerry’s/Unilever issue comes to mind.

Disclaimer: I support Israel. Even though I am not Jewish, that makes me a handmaid of the devil.

AnAdultInDiapers | November 29, 2021 at 12:46 pm

In the same way that some BDS proponents are using an attack on Israel to attack Jewish people, it feels that some anti-BDS proponents are treating all concerns about Israeli actions as anti-semitic.

I’m old enough to remember sporting and other sanctions against South Africa as a response to apartheid. The Israeli ‘Nation State’ law is explicitly racist, and if people wish to sanction Israel in response then I think it’s wrong to pretend they’re being anti-semitic.

Israel needs to make it easy to support its Governments laws and actions, and right now it doesn’t. Explicitly making non-Jewish people second-class citizens in their own country gives everybody a reason to speak out against Israel, irrespective of their views on Jewish people.

Israel does good and bad things. It’s possible to speak of both without being anti-semitic, and pretending otherwise lumps the racists all together, whether it’s the good or bad acts being promoted.

    civisamericanus in reply to AnAdultInDiapers. | November 29, 2021 at 1:46 pm

    Disagreement with Israel’s policies is not anti-Semitic just as disagreement with those of the United States is not sedition or treason. Attempting to harm Israel via BDS is, on the other hand, aiding the enemy (Hamas) which is anti-Semitic.

    E.g. suppose it’s 1942, and you are part of the German-American Bund. If you send money to Germany, it’s aiding the enemy during wartime which is treason. You might however be able to get away with BDS against the United Kingdom, perhaps on the grounds of its past behavior toward Ireland (or even the U.S. circa 1812). This is simply a way to aid the enemy without providing the kind of material support that could get you into a lot of trouble.

    It’s similarly a felony to send money or other material support to Hamas, but it is not illegal to boycott Israel instead. There is however little or any ethical difference between those who do the latter and also the former, at least as far as I can tell.

civisamericanus | November 29, 2021 at 1:41 pm

(1) “Thirty-five states now have laws barring the states from doing business with entities boycotting Israel – boycotting the boycotters. The ACLU and CAIR have challenged laws in six of the 35 states.” The First Amendment says only that the government cannot fine you or put you in jail for saying something with which it does not agree. It does not compel anybody to do business with you. In fact, BDS is very vocal about the right to boycott, and that works in both directions. Noting that the ACLU is siding with the BDS people on this issue I am pulling all further support from the ACLU even though they have done some good work in the past. CAIR is self-explanatory and I believe they are no better than cheerleaders for Hamas.

(2) Familiarize yourself with Form 13909. This is how you can complain to the IRS about a 501(c)(3) tax exempt organization to get their exemption revoked. You can’t file it just because somebody supports BDS. However, I found one 501(c)(3) professional organization that supports BDS that also published an attack on Donald Trump on its web site prior to the 2020 election, and informed the IRS about that. Another anti-Israel organization, and also a church, were found to have done similar things and this has been acted on. It is up to the IRS to decide whether these are in fact causes for revocation. I also filed a couple against 501(c)(5) teachers’ unions on the grounds of ultra vires (outside the organization’s charter).