Israel boycott bans are threatening our First Amendment rights
Democrats cannot afford to look the other way as efforts to shield Israel from accountability erode our fundamental rights.
Published On 7 Mar 20237 Mar 2023
After days of deadlock that saw far-right Republicans hold governance hostage in their effort to spoil Kevin McCarthy’s bid to be elected speaker, the US House of Representatives is finally back in session.
Republicans, who gained control of the House during the 2022 midterm elections, kicked off the new year by voting to launch an investigation into President Joe Biden’s so-called “weaponization” of the federal government. In doing so, the GOP made its agenda clear: to be a thorn in the administration’s side at all times, whatever the cost to progress and democracy.
Yet, while we will likely see partisan deadlock on most issues until the next election cycle, there will be one area of bipartisan activity that will continue unabated: the united effort to shield Israel from accountability for war crimes and human rights violations against the Palestinian people.
In particular, legislators and interest groups on both sides of the political spectrum have been stepping up their efforts to target those using their First Amendment rights to condemn the Israeli military occupation or demand that the Israeli regime adheres to international law.
In recent years, dozens of states adopted legislation designed to punish individuals and companies that refuse to do business in occupied Palestine or with those who profit from Israel’s military occupation. For example, in 2017, the state of Texas only provided hurricane disaster relief funds to those who promised they would not boycott Israel. In 2018, Bahia Amawi, a child speech pathologist in Texas, was fired for refusing to make a similar pledge. That year, the Arkansas Times, a local newspaper based in Little Rock, sued the state of Arkansas after a public university withdrew an advertising contract. Why? Because the newspaper did not renounce its constitutionally protected right to boycott Israel.
While federal courts have struck down most of these laws for blatantly violating the First Amendment, the case of the Arkansas Times was different. The Eighth Circuit Court ruled against the Arkansas Times in July 2022, stripping the newspaper of its right to boycott Israel. Earlier this month, the Supreme Court announced its decision not to review, at least for now, the constitutionality of Arkansas’ anti-boycott law.
The issue, however, is far from over. The anti-boycott laws springing up in different jurisdictions across the US will be reviewed by the Supreme Court sooner or later, and that review will have far-reaching implications for all of us, including those who do not support boycotts of Israel. Indeed, if we permit criticism of Israel to be an exception to our First Amendment rights, many more exceptions will follow. Already, several states have introduced “copycat” anti-boycott laws that aim to criminalise boycotts of the fossil fuel and firearms industries.
The anti-boycott laws constitute an all-out assault on our right as Americans to protest without government interference or harassment.
From the 1773 boycott of British tea that helped spark the American Revolutionary War to the 1955 Montgomery bus boycott against racial segregation, boycotts have long been a popular and effective tool for bringing about political change in the US. The tactic has also been wielded against injustice abroad. Boycotts proved instrumental in bringing an end to the apartheid regime in South Africa, and are now being leveraged at a massive scale against Russia in response to its invasion of Ukraine. However, many continue to exhibit a selective intolerance for the right to boycott when it is used to hold Israel accountable for its many crimes, from subjecting millions of Palestinians to an apartheid regime and building illegal settlements on stolen land, to targeting journalists, health workers and even children.
Some of the most vociferous proponents of efforts to roll back our right to protest against Israel’s human rights violations are conservative lawmakers and interest groups. One of the most prominent of these groups is the American Legislative Exchange Council (ALEC), which drafts legislation for state and federal governments. Alongside its attempts to shield Israel from American boycotts, ALEC also targets public education funding, LGBTQ+ rights, and climate activism, while defending the “Stand Your Ground” laws, bans on Critical Race Theory, and the Supreme Court’s June 2022 reversal of Roe v Wade. As the case of ALEC demonstrates, in the US, attempting to stifle criticism of Israel is a favourite conservative pastime which goes hand in hand with efforts to embolden white supremacy, roll back reproductive and LGBTQ+ rights, and weaken the tenets of a healthy democracy.
However, it would be unfair to give conservatives full credit for the near-complete protection from criticism Israel appears to enjoy in the United States. After all, the push to exempt Israel from the same standards of accountability to which other states are subjected has long been a truly bipartisan effort.
In 2016, for example, New York’s former governor, Democrat Andrew Cuomo, blacklisted businesses that he said were boycotting Israel. In August 2022, Dan Rosenthal, a Democratic member of the New York State Assembly, urged the state’s attorney general to probe alleged anti-Israel bias in multibillion-dollar investment firm Morningstar for daring to inform investors of Israel’s human rights violations through its environmental and social governance (ESG) rating system. This January, Reps. Bob Menendez and Ritchie Torres, who had both publicly condemned boycotts against Israel in the past, were among several Democrats to join the likes of Mitch McConnel, Kevin McCarthy, and other Republicans in reiterating their unequivocal commitment to supporting Israel at the latest AIPAC conference. Not only are these Democrats willing to do away with liberal values like free speech and the right to boycott when directed at Israel, but they are also willing to do so hand in hand with conservative Republicans who are attacking a host of rights Democrats claim to defend.
With US citizens’ right to boycott already under threat, our right to protest against injustice wherever it rears its head will inevitably come next. This is especially critical in the face of Israel’s new extremist government, which has been open about its far-right agenda.
Indeed, as they find themselves increasingly unable to defend the apartheid state’s unlawful actions, supporters of Israel are shutting down debate before it can start by labelling anyone who dares criticise Israeli government policy as anti-Semitic. They are also trying to codify these smears into law. In 2019, Donald Trump signed an executive order that redefined anti-Semitism, conflating it with legitimate criticism of Israel. Since the order was signed, there has been an uptick in federal complaints and punitive measures against those advocating for Palestinian rights.
Now, with the 118th Congress back in session and the GOP in control of the House, the stage is set for a renewed campaign to not only criminalise boycotts of Israel, but punish anyone who musters up the courage to call out Israeli human rights violations.
After finally achieving his dream of the speakership, Kevin McCarthy now has the opportunity to reintroduce additional federal anti-boycott laws beyond those he helped pass in 2019. He can also make good on his promise to snuff out Israel’s vocal critics. Earlier this month, Republicans led by McCarthy voted to kick Rep. Ilhan Omar out of the House Foreign Affairs Committee in response to her outspoken criticism of Israel’s apartheid policies and use of US military aid to harm Palestinian civilians. Other critics of Israel are likely to experience similar treatment in the coming weeks and months. Now we, as Democrats, will have to decide whether we will take a stand to defend efforts to call out injustice or continue to allow Israel to be absolved of the very human rights standards and democratic ideals we claim to hold dear.
While public opinion has shifted over recent years with a growing share of Americans expressing sympathy for Palestinians and their struggle for an end to Israeli occupation and apartheid, official US policy has failed to reflect the electorate’s changing stances. Despite increasing calls to condition the unrivalled amount of financial and military support the US provides to Israel every year, bipartisan support for the so-called “special relationship” has left these calls unanswered. House Republicans have already signalled their intention to step up their efforts to shield Israel from accountability, even if it comes at the expense of free speech or the right to boycott – and Democrats might not stop them.