In January, Senator Marco Rubio proposed a bill entitled “The Combating BDS Act of 2019,” which would protect from legal action states that chose to divest funds from organizations supporting BDS. It is separate from a more extreme anti-BDS bill proposed in the last Congress which tried to establish criminal fines for joining Israel boycotts. “The Combating BDS Act of 2019” divided Democrats, but most Republicans supported it. The provision passed in the Senate and is awaiting a house vote. As part of a new initiative pioneered by Uriel Bauer ‘19, the Heschel Helios asked students to set forth arguments for and against Congress’ actions; after each student wrote their opinion, they then responded directly to each other.
Ethan Katz ‘22:
Marco Rubio recently added a provision to a bill concerning the Middle East. This provision would make supporting the Boycott, Divestment, and Sanctions – or BDS – movement illegal. This provision would, without a doubt, limit freedom of speech and would provide legal grounds to discriminate based on participation in the BDS movement. Two federal courts have recognized this issue, and have blocked this same measure on the grounds that it violates the rights to free expression guaranteed by the First Amendment. According to the ACLU, the provision “would unconstitutionally target political boycotts for criminal penalties, thereby infringing on First Amendment protected activities.”
This provision is yet another example of a seemingly symbolic political move that will ultimately have concrete negative implications. Rubio had a clear goal in mind when he decided to include this measure—to divide the Democratic Party and demonize the left for holding “anti-Semitic” views.
While there is anti-Semitism on the left, no one can argue that it can only be found along partisan lines. Anti-Semitism is everywhere. However, allowing people the free exercise of their constitutional rights, even if they choose to use those rights to support BDS, is not an example of it. Being anti-Israel and being anti-Semitic are two different things. My stance against this bill has nothing to do with my views on BDS and Israeli politics. This is about the rights all Americans have under the Constitution. I firmly oppose the limitation of rights in all forms.
Michael Schwab ‘20
By advancing the anti-BDS bill, the Senate affirms the right of states to avoid doing business with entities linked to BDS. Some democrats, however, especially in the House, oppose the bill, claiming it violates the Constitution’s protection of freedom of speech. This is false. As Senator Marco Rubio noted in an editorial for the New York Times, business entities “have no fundamental right to government contracts and government investment.” Freedom of speech is irrelevant to whether or not business entities can engage in discriminatory behavior without the state – a business partner of theirs – objecting. The bill focuses on the conduct of businesses, not their speech, rendering the Democrats’ argument misplaced.
If the bill by definition does not infringe on the First Amendment, then why would some House Democrats still oppose it? The answer is clear: anti-Semitism. To support a movement like BDS that works solely to eliminate the one Jewish state in the world while simultaneously ignoring the misconduct of countries with far worse human rights records is blatantly anti-Semitic. To do this under the guise of protecting the First Amendment is a disgrace to our Constitution as well.
Michael Schwab ‘20:
As I wrote previously, the BDS bill does not infringe on the First Amendment.
Contrary to what Katz wrote, the bill deals with business entities, not individual citizens. Furthermore, it deals with the conduct of those entities, not their speech—a line clearly drawn in the Supreme Court case Rumsfeld v. Forum for Academic and Institutional Rights (2006). Thus state and local governments are free to disinvest from entities collaborating with BDS without infringing upon the First Amendment whatsoever.
Now that we have dismantled the claim that the bill infringes on the First Amendment, let us shift to the second argument that being anti-Israel and anti-Semitic are two different things. If I told you that I love Italians, Italian food, and Italian culture, but that I hate Italy and do not believe it has a right to exist, you would say, “That’s crazy! Italians are the ones who live in Italy! It’s obvious you just hate Italians.” And if I then said that I am actively trying to cripple the Italian economy, that would only further support your conviction that I am, in fact, anti-Italian.
But when it comes to Israel, something changes. A BDS member might state, “I love Jews, but the Jewish state has no right to exist and should be replaced with another Arab state instead. To that end, I’m going to try to economically destroy Israel.” Anti-Semitic? Clearly. As such we should condemn those in the Democratic Party who, in opposing the anti-BDS bill, attempt to cloak their anti-Semitism under the guise of protecting the (irrelevant) First Amendment.
Ethan Katz ‘22:
Marco Rubio’s Combating BDS Act infringes on First Amendment rights. The Supreme Court in 1982 found, in the case of NAACP v. Claiborne Hardware Co., that non-violent boycotts are included under freedom of speech. Rubio has claimed that entities “have no fundamental right to government contracts and government investment.” However, in 1996, the Supreme Court ruled in the case of Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr that the government is not allowed to end a contract with someone because they are exercising freedom of speech. This is furthered by the 2010 Citizens United v. FEC ruling granted freedom of speech to corporations as well, there is a very strong legal qualm with Rubio’s Combating BDS Act.
Furthermore, BDS isn’t an anti-Semitic movement. BDS holds Israel to higher standards because BDS finds Israel’s denial of Palestinian human rights very pressing and worrisome, especially given the state’s prosperity. To ignore Israel’s human rights abuses in the context of their position in the world right now is to be blissfully ignorant.
The real reason this bill has gained such support is clear: its supporters wish to suppress the speech of those who differ from them. This provision is clearly unjustifiable and discriminatory towards those with a certain political stance.
Boycotts have been essential in shaping our country. The fight for human rights is never easy. But limiting freedom of speech simply because one doesn’t agree sets a dangerous precedent that is far from constitutional and even further from moral.