Why Anti-BDS Bills Are Bad for Democracy, Both in Israel and the United States

4 August 2022

Once again, it’s early election season in Israel, and parties from across the political spectrum are holding primaries over the next month or so. Here in the US, we’re in the thick of it, too. And here, once again, Israel — in particular, a candidate’s position on Israel — is being used as a political football.

Last week in New York, for example, the eight Democratic candidates running to represent Brooklyn and Lower Manhattan in Congress were asked to address the Boycott, Divestment, and Sanctions (BDS) movement against Israel. All — with one exception — denounced it. And while neither I nor NIF support the BDS movement (in fact, our raison d’être is to raise and invest millions of dollars each year in Israel in order to build progressive civil society there), too often the debate around BDS in American politics serves as something of a red herring.

That’s because the settlement movement, the Israeli government, and many of its defenders abroad have worked hard over the last decade to make BDS a bogeyman. For them, the BDS movement has become a stand in for all things deemed “anti-Israel”. It has become a synonym for antisemitism, a litmus test for whether or not you really support Israel, and a code word used to try to smear virtually anyone who criticizes Israel’s settlement enterprise. But focusing solely on BDS is also a way to avoid focusing  on — and indeed distracting attention from — the bigger problem for Israel and those of us who care about it: Israel’s continued military occupation of the West Bank, its more than half-century of control over the lives of the millions of Palestinians who live there, and its unceasing settlement expansion in that occupied territory.

As I put it when Ben & Jerry’s was being attacked for its decision not to sell their ice cream in Israel’s West Bank settlementsa decision which has resulted in complex legal wrangling — “Israel doesn’t have a BDS problem, it has an occupation and a settlement problem.”

During the recent Netanyahu era, we saw the rise (and subsequent demise) of the Ministry of Strategic Affairs, a government ministry created for the sole purpose of combating BDS and the “delegitimization” of Israel. Ministry employees did this by mobilizing an army of internet trolls and bots, developing an app to entice young people to post their hasbara on social media, and paying out tens of thousands of shekels to push the Israeli government’s messaging on BDS through individuals and institutions not obviously traced to or associated with the state.

To be clear, I am not suggesting that there are no antisemitic elements or tendencies in the BDS movement, which is made up of many parts and players. I am saying that the Israeli government developed complex, sometimes secretive systems as well as various legal mechanisms to try and demonize and extinguish what is, at the end of the day, a non-violent form of protest. That is the kind of behavior we expect from authoritarian states and wanna-be autocrats; it’s not what we expect from self-proclaimed liberal democracies.

These hasbara brigades hammered away at single false talking point: opposition to Israel’s settlement enterprise equals opposition to Israel, which, in turn, equals antisemitism.

This political gaslighting is not only false, it also amounts to a dangerous weaponization of the accusation of antisemitism, one that renders the term almost meaningless.

But under former Prime Minister Netanyahu, Israel turned this false equation into law, passing the anti-democratic “anti-boycott law” which enables settlers to sue Israelis who call for or support boycotts not only of Israel but also of Israel’s West Bank settlements. A few years later, the Netanyahu government amended Israel’s Entry Law, denying entry to Israel to foreigners who support boycotts of Israel and Israel’s West Bank settlements. In fact, under pressure from his friend, then-President Trump, Prime Minister Netanyahu denied two US Congresswomen entry to Israel (Rashida Tlaib and Ilhan Omar) — the first time that this has ever happened. Israel also deported Human Rights Watch’s Omar Shakir — all on the basis of unproven claims that the Congresswomen and Shakir “support BDS.” Hardline supporters of Israel also accused both the Congresswomen and Shakir of, you guessed it, being antisemitic.

The irony of it is that the more successive Israeli governments have obsessed over the BDS movement, the more attention — and followers — the movement has gained.

But it’s not just Israel. Here at home, we’ve seen the hysterical response to the BDS movement result in anti-democratic tactics like Israel’s anti-boycott laws imported to the United States in ways that undermine our freedoms.

You don’t have to be a supporter of the BDS movement to see that these tactics — which involve utilizing the American legal system to chill speech and quiet dissent — are profoundly anti-American, counter to the letter and the spirit of the First Amendment.

The past few years have seen hardline defenders of Israel’s settlement policy (as well as some well-meaning but misinformed friends of Israel in Congress) develop a series of anti-BDS laws. Since 2014, well over 200 bills have been introduced. Many of them have passed, and 34 are currently in effect in state legislatures. These are laws that penalize those who, for moral, principled, or familial reasons, refuse to denounce BDS. The majority of these laws are designed to apply to Israel and Israel’s West Bank settlements. In other words, they prohibit the boycott of Israeli settlements — settlements that are counter to American foreign policy and illegal under international law.

Attempts have been made at the federal level as well. In fact, last week Senator Tom Cotton previewed his plans to introduce the latest version of a federal bill, this one aimed to prevent the US military from contracting with any companies engaged in a boycott of Israel.

But please, do not be fooled — this wave of legislation does not represent a groundswell of outrage at the BDS movement. We should all remember that, when polled, the overwhelming majority of Americans say they have never heard of the BDS movement or that they “don’t know much” about it.

Indeed, various right-wing groups — from the Zionist Organization of America to the Israel Project — have been the forces behind passing these laws on the state level (with the support of the Israeli government), while attempts to pass them on the federal level have been aided by the likes of the evangelical right-wing Christians United for Israel.

So far, in Arizona, Georgia, Kansas and Texas, courts have blocked the enforcement of these laws. But, in Arkansas — where the ACLU has sued the state on behalf of the Arkansas Times — the law was recently upheld in the US 8th Circuit Court of Appeals. This Arkansas law demands that the publisher of the Arkansas Times sign a pledge not to boycott Israel. (Side note: this case is profiled in the new Just Vision documentary on anti-BDS legislation called “Boycott” — a film I highly recommend.)

The ACLU and the Arkansas Times are suing Arkansas not because the publisher wants to boycott Israel; he has no interest in doing so. They are suing because they believe (and rightly so) that the United States Constitution protects free speech, including boycotts, and that state laws cannot undermine that freedom.

As I wrote in the New York Times when the ACLU first brought this lawsuit,

These measures undermine fundamental democratic values dear to both Israelis and Americans; they are also an extension of a damaging policy that originates in the Netanyahu government and that seeks to reverse half a century of American policy and remove any possibility of a two-state solution.

… In service of their agenda to destroy any chance for a two-state solution, Israeli hard-liners and settlement lobbyists are willing to compromise fundamental freedoms. The United States should not sacrifice its own sacred constitutional principles in order to help them.

The ACLU has pledged to appeal the case to the Supreme Court.

But there are reasons for hope. During his presidential campaign, Joe Biden criticized Israel’s decision to deny entry to American lawmakers; he did “not support efforts by any democracy to criminalize free speech and expression.” He has also, since taking office, noted that anti-BDS legislation encroaches on the fundamental American right to free speech. Indeed, the Jerusalem Declaration that President Biden and Prime Minister Lapid signed last month in Jerusalem recognized and affirmed the right to free speech even as it rejected the BDS campaign.

At NIF we care about a democratic Israel — and a democratic America. We know that government moves to restrict freedom of speech are anti-democratic and wrong, wherever they occur. And we know the moves that chill freedom of expression when it comes to Israel originate in same playbook of Israel’s far-right settlement defenders and their allies abroad, who are devoted to ensuring that there will never be a two-state solution, and that Palestinian rights continue to languish on history’s back burner.

And we also know that it is the job of everyday citizens working through civil society in Israel, in America, and around the world to hold governments accountable, to ensure that their elected representatives are protecting and preserving the essential freedoms that animate our democratic cultures, and to serve as the guardians of the goalposts of our very democracies themselves.  That is what NIF and our grantees and partners in Israel work towards every day.