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No, Antisemitism Isn’t Backed by the Constitution

Daily News

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The Boycott, Divestment, and Sanctions (BDS) movement is notorious for its singular focus on the Jewish State and the transparent antisemitism of its chief architects. Nikki Haley, now a candidate for president, struck a significant blow to the movement when she signed the first-ever anti-BDS law prohibiting recipients of public contracts and state investment in South Carolina from boycotting Israel. More than half the states have now adopted similar measures, and together they provide a powerful bulwark against corporate boycotts of Israel.

BDS activists insist these laws violate the First Amendment. But after almost a decade of litigation, the Supreme Court last week refused to review a lower-court decision upholding Arkansas’ anti-BDS law against a local newspaper. Activists claim that was contrary to the “history and tradition” of the First Amendment, and they have vowed to continue in their efforts to restore the boycott to its former First Amendment glory.

But activists are wrong about the history. As I explain over at City Journal, and in a Harvard working paper with Lavi Ben Dor, state actors in the United States have been regulating the boycott vigorously since before the founding, compelling participation in boycotts whose goals they support, while prohibiting participation in the ones they oppose. As a matter of history, boycotts have never received special treatment under the First Amendment, and anti-boycott laws are nothing new.

BDS Protest CUNY students of Palestinian descent and their allies hold a rally to protest Israeli occupation and demand that the university system divest from Israel, May 28, 2021, at John Jay College in New York. Andrew Lichtenstein/Corbis via Getty Images

Here, I’d like to stress a related, but distinct reason why BDS activists misfire when they anchor their constitutional arguments in history and tradition: that the tradition of anti-boycott regulation is at its strongest when it comes to Israel.

Rules against boycotting the Jewish State trace back at least 50 years to the 1970s, when Congress and the president first sought to counter the Arab League Boycott of Israel and its perceived impact on the American Jewish community. In 1945, the League had called upon Arabs to “refuse to deal in, distribute, or consume Zionist products or manufactured goods,” in an effort to undermine the very prospect of a Jewish state. This was, in the words of one PLO publication, “the most effective weapon in the hands of the Arabs, short of actual open fighting,” in the war against the Jews of future Israel. U.S. presidents from both parties viewed that boycott as invidious discrimination, not sacrosanct expression.

In 1975, President Gerald Ford called for regulations prohibiting U.S. companies from “complying in any way with [the Arab] boycott,” and declared emphatically that the United States would not “countenance the translation of any foreign prejudice into domestic discrimination against American citizens.” Congress quickly heeded the call, passing not one but two pieces of critical bipartisan legislation: the Ribicoff Amendment assessed steep tax penalties against U.S. companies that participate in the Arab Boycott, and the Export Administration Amendments of 1977 directed the president to prohibit American companies from joining the Arab boycott. In signing that law, President Jimmy Carter acknowledged that the Arab Boycott, though nominally focused on Israel, was in fact “aimed at Jewish members of our society.” The U.S. Office of Antiboycott Compliance has been enforcing this regime ever since, on the bipartisan understanding that the boycott of Israel constitutes a tool of discrimination, not protected expression.

And the federal government was not alone in its anti-boycott effort. Throughout the 1970s and 1980s, at least 13 states—red and blue—took aggressive legislative steps to prevent U.S. companies from joining the Arab boycott. New York’s rule was strikingly similar to the anti-BDS laws of today. In fact, it went further, prohibiting “discrimination,” “boycotting,” or “blacklisting” based on “national origin” or because a person has done business with Israeli firms. When Gov. Michael Dukakis signed the Massachusetts bill into law, he explained that he wished to send an “unequivocal message” that Massachusetts would “not stand for this type of blatant discrimination” against its Jewish residents.

Today’s anti-BDS laws spring from the same pair of political judgments that animate this 50-year tradition of anti-boycott legislation. The first is that the boycott isn’t speech, but instead economic conduct that can be freely regulated, consistent with the First Amendment. And the second is that, in the case of Israel, the boycott constitutes discrimination, and not desirable social action.

The tradition of anti-boycott legislation lives on because its historical foundations are fundamentally true. The first boycott against the Jews of Israel took place in the 1890s, and its organizers—the Arab political associations of Mandatory Palestine—could not have been clearer about their anti-Jewish objectives: “Don’t buy from the Jews,” they declared, “come and bargain with the Arab merchant… We must completely boycott the Jews.” And in 1933, as the Grand Mufti of Jerusalem grew in political prominence, he called for systematic boycotts against the Jews of Palestine and urged Nazi Germany to do the same.

BDS’s appeal to “history and tradition” should ring hollow. For 50 years, state and federal law makers have regulated Israel boycotts, on the understanding that they were conceived in antisemitism and cannot escape its taint. In the court of history, it’s the state lawmakers, and not the activists, who enjoy the upper hand.

Josh Halpern, a Washington appellate litigator, is a lecturer and research fellow at Harvard Law School.

The views expressed in this article are the writer’s own.


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