The Misguided Attacks on the Boycott Israel Movement

By trying to silence BDS supporters, Jewish groups have instead given them a megaphone.

The Boycott, Divestment, and Sanctions movement (BDS) is the biggest threat facing Israel today—or, at least, that was the message you might have taken away from the American Israel Public Affairs Committee (AIPAC) Policy Conference in March, the largest annual pro-Israel gathering in the United States.

Each year, the three-day confab culminates in thousands of activists descending on Capitol Hill to meet with legislators and push the influential lobby’s agenda, which tends to include an aggressive U.S. approach to Iranian malfeasance and the continuity of America’s military aid to Israel. This year, there was only one concrete legislative request: the Israel Anti-Boycott Act. Authored by Maryland Democratic Senator Ben Cardin, the legislation would criminalize certain forms of political boycotts against Israel and West Bank settlements.

Those entreaties seem to be working: The House Foreign Affairs Committee unanimously passed a companion version of the bill last week, advancing the measure to the full House chamber.

AIPAC is not alone in trying to advance this bill. Virtually every other mainstream U.S. Jewish group—the Anti-Defamation League, the American Jewish Committee, the Jewish Federations of North America—supports it, as well, just as they have over the last four years with similar state laws designed to target BDS supporters. Almost half the states in America have now enacted these laws, most of which prohibit state agencies from entering contracts with companies or individuals who participate in Israel boycotts.

The BDS campaign, now 13 years old, defines its three major goals as: ending Israel’s occupation of “all Arab lands,” which, in their view, includes Tel Aviv; granting Arab citizens of Israel equal rights; and allowing for the full right of return for Palestinian refugees (and all of their descendants) who were expelled or displaced from their homes between 1947 and 1949—a demand that, if implemented, would make Israel no longer a Jewish-majority state. As Omar Barghouti, a BDS co-founder once put it, “If the refugees were to return, you would not have a two-state solution, you’d have a Palestine next to a Palestine.”

Still, the American Jewish establishment’s preoccupation with the BDS movement is somewhat confusing. To achieve its objectives, BDS has attempted to do two things: hurt Israel’s economy and damage its standing in the world. It has succeeded at neither. Israel’s economy is thriving: exports of goods and services surpassed $100 billion in 2017, marking a five percent increase from 2016, and the country remains a global hub of start-ups and innovation. Israel’s nine million people make up just one-tenth of one percent of the world’s population, and yet the country receives more than 20 percent of the world’s private cyber investments. Meanwhile, Israel has been steadily expanding its diplomatic relations abroad, including with China, India, Argentina, Colombia, Mexico, and Kenya.

One could argue that BDS’s failure to gain traction is proof of the effectiveness of efforts against it—except the boycott movement wasn’t doing particularly well before these efforts began.

Counter-BDS initiatives were first launched four years ago, when the concern among Jewish leaders was that BDS resolutions were fomenting anti-Israel sentiments on college campuses. But Mitchell Bard, who runs the American-Israeli Cooperative Enterprise, a group that brings Israeli professors to American campuses, told the Israeli-daily Haaretz at the time that boycott attempts had been “a colossal failure.” He explained, “There are roughly 2,000 four-year colleges in the U.S., and in the last academic year, there were 16 or 17 disinvestment resolutions and they lost at least 12.”

The campaign hasn’t picked up since then. So why is BDS being portrayed as such a threat when it is plainly not working? The answer may have more to do with BDS’s opponents than its supporters.

BDS had been around for a while before American Jewish organizations started seeing it as an existential threat to Israel. In July 2005, Palestinian groups began calling for academic, cultural, and economic boycotts of Israeli institutions. Part of the calculus was to put the same kind of pressure on Israel that was inflicted on South Africa to end its system of apartheid.

Yet many BDS leaders quickly proved interested less in protesting Israel’s policies than in attempting to eradicate the Jewish state. “The real aim of BDS is to bring down Israel,” said As’ad AbuKhalil, a professor at California State University Stanislaus, during the first BDS conference in Ramallah in 2007. “That should be stated as an unambiguous goal. There should not be any equivocation on this subject.”

But it wasn’t until 2014 when American Jewish organizations began promoting state-level statutes to discourage companies and individuals from engaging in Israel boycotts–and with some success: Twenty-four states have since passed anti-BDS laws or executive orders, according to the Foundation for Middle East Peace.

That success is already being undermined by the courts. The American Civil Liberties Union filed a lawsuit last October challenging the constitutionality of a Kansas law requiring state contractors to certify that they don’t boycott Israel. Representing a public school math teacher who was denied a state contract because she boycotts Israel, the ACLU argued the law was an “unconstitutional attempt by the government to silence one side of a public debate by coercing people not to express their beliefs.” In January, a federal judge agreed—ordering a preliminary injunction blocking enforcement of the law. Noting the Supreme Court’s history of ruling that the First Amendment protects the right to participate in political boycotts, U.S. District Judge Daniel Crabtree wrote that the measure forced an unconstitutional choice on the plaintiff: “She can either contract with the state or she can support a boycott of Israel.”

“The underlying point is that the government can’t choose which causes people are allowed to support,” Brian Hauss, an ACLU staff attorney, told me. “These laws are particularly pernicious because they scare a lot of people. The easiest answer when confronted with one of these certification forms is to not engage in protected speech or activity and sign the form. That is a really dangerous thing. That imposes a broad chill on people’s First Amendment rights.”

But for AIPAC and other Jewish groups and elected officials, including high-profile Democrats like Cardin, Senate Minority Leader Chuck Schumer, and New York Governor Andrew Cuomo, the constitutional implications of these measures have been cast aside or dismissed—and it’s not, on the surface, clear why. BDS efforts have accomplished very little: With the exception of a few artists cancelling performances in Tel Aviv and a SodaStream factory leaving the West Bank (which resulted in more Palestinians losing jobs than Israelis), BDS has inflicted hardly any tangible impact on Israel.

Anti-BDS efforts, however, have served a useful purpose for the movement’s opponents. It’s a well-known paradox that advocacy groups do better in the opposition. People are more likely to donate money when the issues they care about seem under threat. It is also easier to galvanize people against, rather than for, something.

Trump’s presidency thus may herald a golden age for left-wing Jewish groups like J Street and Americans for Peace Now, who can seize the moment to energize their progressive constituencies. But with President Donald Trump recognizing Jerusalem as Israel’s capital, moving the U.S. embassy there from Tel Aviv, and withdrawing the United States from the Iran nuclear deal, right-leaning American Jewish organizations have very little left to ask for. Their zealous focus on BDS, therefore, is the way they have chosen to remain relevant in the Trump era. But the irony is that by trying to silence BDS voices, U.S. Jewish groups have instead given them a megaphone. BDS now enjoys a substantial presence in the international conversation around Middle East peace, with pro-BDS voices appearing on The New York Times op-ed page and thousands of articles on the movement appearing in virtually every major international publication over the last several years.

The popularity of anti-BDS measures is troubling for a still deeper reason. To push for suppressing a political viewpoint is an assault on the liberal values that Jewish Americans have long championed, and indeed shaped throughout the twentieth century. It was Louis Brandeis, the first Jewish member of the Supreme Court, who wrote a defense of free speech that legal scholars recognize as providing the theoretical framework for the court’s First Amendment jurisprudence. In his concurring opinion for the seminal case Whitney v. California, he emphatically stressed that the best remedy for exposing “falsehoods and fallacies” was “more speech, not enforced silence.”

The First Amendment was placed first for a very deliberate reason—without it, none of the others matter. The American Jewish community, of which I am a member, knows this as well as anyone: If not for that constitutional right, American Jews could not have played the outsize role they did in advancing the Civil Rights Movement.

BDS may be misguided at best, and malevolent at worst, but restricting the speech rights of those involved only layers on a new injustice. Rather than recognizing the failure of BDS to gain any momentum, its opponents have decided there is more political benefit in exaggerating a threat that isn’t really there. In the process, they have promoted a set of laws that turns BDS supporters into victims—and that degrade the most fundamental of American values.

Eric Cortellessa

Eric Cortellessa is the digital editor of Washington Monthly.