Boycotting Israel a Constitutional Right and Personal Obligation
In NAACP v. Claiborne Hardware Co. (1982), a landmark civil rights case, the Supreme Court unanimously upheld the organization’s right to boycott white-owned businesses in Mississippi – protesting against segregation and racial injustice, its constitutional right.
The ruling stressed that states may not prohibit peaceful advocacy of a politically-motivated boycott, what First Amendment rights are all about.
Yet 28 states enacted legislation, restricting or banning individuals or entities doing business with the state if advocate boycotting Israel.
Their measures defy the Supreme Court’s ruling and fundamental First Amendment right of free expression — wanting the constitutionally protected right to boycott or otherwise publicly criticize Israel delegitimized, falsely equating it to anti-Semitism.
Only eight US states so far haven’t introduced or considered a measure in some form against boycotting the Jewish state.
Last May, the ACLU stressed the unconstitutionality of these laws, judicially struck down in Kansas, Arizona, and Texas by federal courts, the ACLU saying:
The rulings affirm “that the right to boycott is protected under the First Amendment…(They’re) stinging rebuke(s) of state legislators and members of Congress who have repeatedly attempted to strip the American people of that very right.”
Hardliners at the federal and state levels want anti-boycott laws enforced, no matter their unconstitutionality.
In January, on behalf of 13 constitutional scholars, Colombia University’s Knight First Amendment Institute filed am amicus brief in the Ninth Circuit Court of Appeals — “explaining that BDS boycotts are protected by the First Amendment in Jordahl v. Brnovich (Arizona).”
The constitutional scholars include:
William D. Araiza (Brooklyn Law School); Jack Balkin (Yale Law School); Erwin Chemerinsky (University of California, Berkeley, School of Law); Owen Fiss (Yale Law School); Katherine Franke (Columbia Law School); Jeremy Kessler (Columbia Law School); Seth F. Kreimer (University of Pennsylvania Law School); Genevieve Lakier (University of Chicago Law School); Burt Neuborne (New York University School of Law); Robert Post (Yale Law School); Amanda Shanor (University of Pennsylvania); Geoffrey R. Stone (University of Chicago Law School); Nadine Strossen (New York Law School).
Knight Institute staff attorney Ramya Krishnan said “(t)his is an easy First Amendment case.”
“Politically motivated consumer boycotts are a form of protected speech, as the Supreme Court held almost four decades ago.”
“The First Amendment forecloses a state (or federal government) from suppressing or burdening a political boycott simply because it disagrees with the boycott’s message.”
The Arizona law was struck down by a federal state district court.
In April, the Center for Constitutional Rights (CCR) Palestine Legal, and the Law Office of Matthew Strugar filed an amicus brief in the Eighth Circuit Court of Appeals in support of striking down an anti-BDS Arkansas law — calling it “part of a broader effort to suppress speech in support of Palestinian human rights.”
Days earlier, Rep. Ilhan Omar introduced HR 496: “Affirming that all Americans have the right to participate in boycotts in pursuit of civil and human rights at home and abroad, as protected by the First Amendment to the Constitution.”
The measure was referred to the House Judiciary Committee for further action. It’s co-sponsored by Rep. John Lewis and Palestinian-American Rep. Rashida Tlaib.
Omar said the following: “We are introducing a resolution…to really speak about the American values that support and believe in our ability to exercise our first amendment rights in regard to boycotting.”
The measure “affirms that all Americans have the right to participate in boycotts in pursuit of civil and human rights at home and abroad, as protected by the First Amendment to the Constitution.”
It “opposes unconstitutional legislative efforts to limit the use of boycotts to further civil rights at home and abroad.”
It “urges Congress, states, and civil rights leaders from all communities to endeavor to preserve the freedom of advocacy for all by opposing anti-boycott resolutions and legislation.”
The measure counters HR 246 (March 2019) — “Opposing efforts to delegitimize the State of Israel and the Global Boycott, Divestment, and Sanctions Movement targeting Israel” — co-sponsored by Rep. John Lewis, making it unclear what he supports.
It’s impossible to be for and against the same thing. Throughout his tenure in Congress since 1987, Lewis expressed strong support for Israel, ignoring its appalling human and civil rights abuses against Palestinians, along with its high crimes of war and against humanity.
On July 17, the Arab American Institute endorsed HR 496, urging its members and supporters to write or email their congressional representatives to support the measure, suggesting the following text:
“Subject: Affirm the 1st Amendment- Co-sponsor H.Res.496
I urge you to support H.Res.496, which affirms the First Amendment-protected right of all Americans to participate in boycotts in pursuit of civil and human rights at home and abroad.
The right to boycott is central to the political expression envisioned by the Founders when the First Amendment was added to the Constitution.
Americans have a long and proud history of boycotts, from the Boston Tea Party to opposing apartheid in South Africa, and that history includes the instrumental Civil Rights Era boycotts which were planned in part by original cosponsor Representative Lewis himself.”
The Global BDS Movement issued a statement, saying it “warmly welcomes the resolution introduced by Congress members Ilhan Omar, Rashida Tlaib and…John Lewis “Affirming that all Americans have the right to participate in boycotts in pursuit of civil and human rights.”
Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI) member Hind Awway issued a statement, saying “(t)his groundbreaking resolution will inspire human rights defenders everywhere including BDS activists for Palestinian rights.”
“It affirms the right of all activists and people of conscience to advocate for human rights through boycotts against systems of oppression.”
“It reassures us that progressives, including in Congress, are defending freedom of expression and the rights of oppressed communities, including Palestinians to peacefully fight for their rights. The defense of those rights is more vital in light of the rise of far-right racism and white supremacy, including Israel’s decades-old apartheid regime.”
The measure is an important statement even though most congressional members strongly support Israel, while disdaining Palestinian rights.
It’s why HR 496 has virtually no chance of becoming the law of the land.
My newest book as editor and contributor is titled “Flashpoint in Ukraine: How the US Drive for Hegemony Risks WW III.”