Bill targeting anti-Israel BDS movement raises First Amendment concerns

By Clyde Hughes
The Senate passed a bill this month allowing state and local governments to deny contracts to companies that boycott Israel. File Photo by Debbie Hill/UPI
The Senate passed a bill this month allowing state and local governments to deny contracts to companies that boycott Israel. File Photo by Debbie Hill/UPI | License Photo

Feb. 14 (UPI) -- A bill passed by the U.S. Senate this month is stirring a First Amendment debate over a boycott movement targeting Israel.

A provision in the bill, which echoes similar local measures like one in Maryland, allows state and local governments to decline contracts with companies that are participating in boycotts, sanctions and divestments "to influence Israel's policies."


The measure, and others like it around the country seeks to blunt the Boycott, Divest and Sanction movement that is trying to end Israel's occupation of the Palestinian territories through economic protests and pressure.

Muslim organizations like the Council on American-Islamic Relations and Palestinian supporters say such measures are an effort to silence their voices.

"It is a shame that the U.S. Senate would pass such an unconstitutional bill that violates the First Amendment right of all Americans to challenge the illegal and discriminatory actions of a foreign government and goes against the principles of free speech on which our country was founded," CAIR's government affairs director Robert McCaw said in a statement.


"CAIR urges all members of the House who support free speech to oppose and remove the anti-BDS provisions of Senate Bill 1," he added.

Some senators have voiced the same First Amendment concerns, like Kentucky Republican Rand Paul, Ohio Democrat Sherrod Brown and Vermont Independent Bernie Sanders.

"The founding fathers would roll over in their graves if they knew what we were doing today," Paul said on the Senate floor earlier this month, reminding senators that the Boston Tea Party was a protest and helped give birth to the United States.

"Free speech, the First Amendment, is about allowing language you don't like. It's about allowing boycotts you may not like," Paul said.

Gregory Dolin, a professor with the University of Baltimore School of Law who sits on the board of the Jewish Coalition for Religious Liberty, said measures like Senate Bill 1 are rooted in American civil rights law combating discrimination.

"They don't forbid anyone from advocating anything, so the First Amendment concerns are misplaced and overblown," Dolin told UPI. "The bill only targets 'commerce-related or investment-related' activity.

"The act specifically cautions that 'nothing in this title shall be construed to infringe upon any right protected under the First Amendment.' And the bill does not require that states adopt these policies, but permits them to do so," he said.


Maryland has had a similar measure since 2017, when Gov. Larry Hogan signed an executive order prohibiting the state from contracting with any business that refuses to pledge not to boycott Israel.

CAIR announced in January it was suing Maryland for the executive order on behalf of former Maryland legislator Syed Saqib Ali. Ali argues the order violates his First and 14th Amendment rights of free speech and equal protection.

"Maryland's ban on contracting with anyone who participates in such boycotts constitutes viewpoint discrimination that chills constitutionally protected political advocacy in support of Palestine," the lawsuit said.

Charles Tiefer, another law professor at the University of Baltimore who formerly worked at the Justice Department and the House of Representatives, said the bill appeared to be an effort by Republicans to target Democrats by painting "the whole Democratic Party with their positions on the boycott etc.

"There have been successful uses in the past of state and local broker procurement for international causes. Notably, there were state and local boycotts of South Africa in the 1980s, which were significant. But this current BDS has nothing at all like the large-scale support that made the anti-apartheid boycott successful," Tiefer told UPI.


The bill has been applauded by the pro-Israel lobby American Israel Public Affairs Committee, which says that Israel has been singled out for years by such regressive economic efforts.

"Israel has long been targeted with economic warfare, and Congress has a proud history of defending the Jewish state from such attacks," AIPAC says about the BDS movement on its website.

"By manipulating the language of international law, the BDS movement depicts Israel as an illegitimate aggressor, then seeks to sanction those who interact with the Jewish state," it continued.

The bill has been forwarded to the House of Representatives. Rep. Hakeem Jeffries, D-N.Y., has called the anti-BDS language in the bill a "political stunt" by Republicans.

The American Civil Liberties Union last month suggested that the bill would have a chilling effect on political boycotts and protests.

"The ACLU takes no position on campaigns to boycott Israel or any other foreign country, but it has long defended the right to participate in political boycotts, which are a proud part of this country's constitutional tradition and protected by the First Amendment," it said.

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