Anti-BDS bill is unconstitutional

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US Senate has voted overwhelmingly in favor of a bill that would give states legal cover to punish companies that choose not to do business with Israel or Israeli-owned enterprises. The bill, known as S 1, thus clears its first major hurdle in Congress. But the bill is trying to muzzle criticism of Israel at the expense of the US Constitution.

The bill, which passed in a 77-23 vote, says US states can “divest” from companies they disagree with on the Palestinian-Israeli conflict. This is in reference to the Boycott, Divestment and Sanctions movement, which seeks to pressure Israel economically and politically to end its abuse of the Palestinians, and ultimately, the Israeli occupation.

Interestingly, S 1 was the very first bill the new US Senate considered in 2019, exemplifying its importance. Senator Marco Rubio, the Republican from Florida who introduced the measure, has fiercely argued in its defense, saying that states have a right to “boycott the boycotters”. But the bill is unconstitutional because it 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 the country was founded.

“Companies are free to boycott Israel,” Rubio tweeted. “But local and state governments should be free to end contracts with companies that do.” The same tweet claimed that “shielding BDS from counter-boycotts is de facto support of BDS.” In another tweet, Rubio noted: “If boycotting #Israel is constitutionally protected, then boycotting companies that boycott #Israel is also constitutionally protected.”

The right to boycott is an essential part of free speech, as guaranteed by the First Amendment of the US Constitution. To be able to dissent and to protest is a fundamental aspect of freedom. US citizens should be able to express their political opinions without fear of being punished by their government.

If anything, shielding BDS from a government counter-boycott is part and parcel of the First Amendment. If boycotting Israel were constitutionally protected, then a law allowing the government to discriminate against those who participate in a boycott of Israel would be unconstitutional. That’s in the constitution.

The actual value or effect of BDS is open to varying opinions. Launched by Palestinian civil society groups in 2005, BDS seeks to pressure Israel to end its occupation of the Palestinian territories, ensure equal rights for Palestinian citizens, and grant the right of return to Palestinian refugees. Its activists want companies to stop doing business in Israel, consumers to stop buying Israeli products, and academics and cultural figures to stop collaborating with Israeli colleagues. BDS is the successor of the boycotts that targeted apartheid South Africa in the 1980s. But when it comes to the First Amendment of the US Constitution, the bedrock of American free speech, there can be no debating about its legality. The Supreme Court has made this clear. The right to engage in non-violent political activity, including boycotts, is part of the country. It’s part of its constitution.

Twenty-six states have passed various forms of anti-BDS bills in recent years but several of those measures are currently being challenged in courts across the country. These states have adopted laws that punish companies that choose to boycott Israel. State laws do not explicitly prevent individual citizens from joining the BDS movement; that would almost certainly be unconstitutional. But the bills force companies to make a choice between participating in BDS or keeping their business. It does not need much imagination to figure out what most companies will pick.

The Senate legislation must still pass a vote in the US House of Representatives and be signed into law by President Donald Trump. In the meantime, the US Senate is choosing politics over the constitution and in the process has trampled on the First Amendment rights of America’s citizenry.


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