The discussions taking place around the Boycott, Divestment, and Sanctions (BDS) movement and anti-BDS legislation reflect worrisome viewpoints across the political spectrum. On one end of the spectrum, there is a troubling inconsistency on the role of government in passing legislation against discrimination as well as a shocking lack of recognition of the discriminatory and hateful nature of the BDS movement. On the other end, there is a disturbing willingness by some to achieve short-term legislative wins at any cost no matter how poorly worded or detrimental the legislation.
Tackling discrimination is the government’s job and does not violate the first amendment
If you support the Civil Rights Act, the Voting Rights Act, the Equality Act, etc. — and I hope that you do — , then you clearly agree that the government has a role to play in legislating against bigotry. If you think that the government should, in seeking contracts with private companies, avoid contracts with companies that have a track record of racism, homophobia, Islamophobia, or any other bigotry — and I similarly hope that you feel this way — then you likewise view it as reasonable for the government to pass laws that prohibit contracting with bigoted companies. While the government cannot jail or otherwise punish private individuals for expressing such bigotries, as per the first amendment, the government is also under no obligation to hire such individuals and create a toxic work environment in the process. Likewise, while the first amendment prohibits the government from outlawing and punishing free expression such as by fining companies or individuals who it disagrees with, free speech does not demand that the government reward those who choose to use their free expression to demonstrate bigotry; whereas freedom from jail is a right, being employed by the government is merely a privilege, and withholding that privilege is not a violation of rights.
Boycotts aren’t necessarily discriminatory but can be
There is nothing inherently discriminatory about a boycott, but a boycott can become discriminatory under certain conditions. Trump’s Muslim ban is an obvious example. The boycott of Jewish stores in Nazi Germany was another.
There’s a simple litmus test for discrimination:
- Motivation: is the action driven by identity or by objective behaviors?
- Effects: is there a disparate impact that demonstrates unfairness?
It is theoretically possible to participate in a boycott that includes Israel without that boycott being discriminatory. If the list of boycotted countries is equitably defined (e.g. “all countries that are in a territorial dispute”) and applied consistently (all of the countries that match the criteria actually do get boycotted in a similar fashion), then there is no discrimination. If the list of countries comes first and the principles to match those countries are generated after as a post-facto rationalization, then it is no longer objective or equitable. If the criteria can only ever match Muslim-majority countries, or only countries that have a Black leader, or — indeed — the only Jewish-majority country in the world, claims of objectivity become suspect.
This is precisely how the Muslim ban is discriminatory; not only was the intent plainly discriminatory, but the targeting of Muslim-majority countries, only, made this intent clear as well as resulted in a discriminatory effect.
BDS is anti-Semitic; please stop saying otherwise
While it is possible to participate in a boycott that happens to include Israel without it being discriminatory, BDS is not such an objective, non-discriminatory boycott.
BDS is not rooted in objective criteria; rather, it uniquely singles out Israel. While some BDS supporters may attempt to claim an objective criteria in the face of accusations of bias, the reliance of such criteria on factual distortions and the inclusion of numerous additional qualifiers that are unnecessary to advancing human rights but which are necessary to cause only Israel to match the criteria make it clear that any such criteria are merely post-facto rationalizations. In singling out Israel, BDS has created a disparate impact not only on Israeli citizens but also on non-Israeli Jewish Americans who are more likely to have Israeli relatives, who are more likely to travel to Israel, and for whom Israel holds a unique historical, cultural, and religious significance. The withholding of recommendation letters from Jewish students studying abroad is but one of many examples of how such a disparate impact harms individuals who are uninvolved in the conflict.
Beyond disparate impact, though, BDS is driven by anti-Semitic intent and takes anti-Semitic views mainstream. BDS advocates for a one-state solution to the Israeli-Palestinian conflict in its set of demands, effectively calling for Israel’s destruction, an end to Jewish political autonomy, an end to the only Jewish-majority country in the world, a return of the Jewish people to stateless minority status subject to the whims of other (often hostile and intolerant) nations, and the removal of the one country to which Jews can be assured of safe haven and refuge at a time when anti-Semitism is rising globally. BDS frames the Israeli-Palestinian conflict in a manner that is not only ahistorical and one-sided but which, in connection with well-known anti-Semitic blood libels, demonizes Jews as racist Apartheid-loving colonialists who desire the oppression, subjugation, and enslavement of Palestinians. BDS likewise trivializes and erases the deliberate murder of Jews, euphemistically referring to Palestinian terrorism directed at Jewish civilians inside and outside of Israel as “popular resistance”. The anti-Semitic intentions of BDS are evidenced by the prejudices and statements of its founder Omar Barghouti. Even Noam Chomsky and Norman Finkelstein, who have been frequently criticized as “self-hating Jews”, have expressed opposition to BDS because of how blatantly bigoted its goals and intentions are.
Given its prejudicial basis, BDS unsurprisingly draws well-known anti-Semites such as former KKK grand wizard David Duke. Organizations and individuals supporting BDS have engaged in a wide array of overtly anti-Semitic activities, including disrupting film screenings about the Holocaust and vandalizing Holocaust memorials. BDS is an extension of and contributes to the “new anti-Semitism”, a subset of anti-Semitism that rationalizes and excuses itself using Israel (unlike other forms of anti-Semitism that have relied on religious, economic, or racial motives). This new anti-Semitism, of which BDS is a part and to which BDS contributes, has resulted in the vandalizing of Jewish ritual objects, the firebombing of synagogues, the vandalism of other Jewish builds and institutions, hostile environments for Jews on college campuses including in its allegedly safe spaces, and the exclusion of Jews from some progressive movements among other ills. Lest you consider these examples merely anecdotal, there is a direct correlation between BDS and anti-Semitic incidents; according to a 2017 report put out by AMCHA, an organization dedicated to monitoring campus anti-Semitism: “a department’s sponsorship of BDS-supporting speaker-events is significantly associated with acts that target Jewish students for harm, including assault, harassment, destruction of property, and suppression of speech.”
One can criticize Israel without being anti-Semitic and one can boycott Israel without being anti-Semitic, but BDS very clearly crosses that line.
Remedies should be beyond reproach
If you already agreed that BDS is anti-Semitic or I have successfully convinced you that it is, then I hope you will also agree that BDS is not the only cause of anti-Semitism. Poorly considered and poorly worded legislation that aims to combat BDS in the wrong way can be wielded by anti-Semites to spread further antipathy and hatred towards Jews. This was plainly evident in the headline used by Glenn Greenwald’s article in the Intercept and by Rashida Tlaib’s tweet regarding BDS legislation, both of which invoked language involving loyalty that have a long history of association with anti-Semitism, from the Dreyfus Affair to the present. In approaching any legislation related to BDS, care must be taken so that the act of countering BDS does not generate more anti-Semitic sentiment than the BDS movement does, itself.
As a boycott, the BDS movement has been unsuccessful in causing Israel any meaningful economic harm; the harm and danger of BDS comes from the anti-Semitic sentiment and hate crimes that it inspires outside of Israel. The government is right to ensure that taxpayers do not fund bigotry, including bigotry expressed in the form of discriminatory boycotts. However, poorly worded and poorly implemented legislation can give the wrong impression that such legislation is about foreign policy outcomes rather than domestic discrimination and, in doing so, be upheld in support of this dual loyalty trope, increasing anti-Semitism and rendering such legislation self-defeating.
Outlawing discriminatory boycotts must avoid the sin that is at the root of discriminatory boycotts, namely the lack of objectivity and universality; laws combating discriminatory boycotts should prohibit all boycotts of like nature and should allow for objective, equitable boycotts even if they happen to include Israel. To clarify its purpose in combating discrimination rather than advancing specific foreign policy aims, such laws should also be dissociated from other foreign policy legislation and should ideally be part of other laws concerning discrimination. Unfortunately, both Senate Bill S1 and Texas Government Code 2270 commit these sins of being overly specific and in failing to allow for boycotts that are non-discriminatory. Beyond this, S1 also focuses on many other aspects of foreign policy, including funding for Israel and other foreign policy measures related to Syria, giving the harmful impression that this opposition to BDS is driven by foreign policy rather than inclusion. Consequently, both of these bills do greater harm than good in the way that they have gone about addressing this issue.
BDS is a discriminatory movement that contributes to anti-Semitic hate crimes and anti-Semitic sentiment. This should not be ignored or whitewashed. Those who seek to normalize BDS, promote BDS, or deny its discriminatory nature should be called out by those who are committed to tolerance and inclusion and style themselves as social justice advocates. The government is not only well within its rights to legislate against such bigotry, but it ought to do so. At the same time, not all legislation is helpful, and even well-intentioned legislation can sometimes do more harm than good.