The BDS — boycott, divest, sanction — movement against the state of Israel is on quite a losing streak. Despite occasional successes, they’ve been defeated in attempts to get the support of major church groups like the Methodists as well as had their resolutions defeated at most universities and academic associations. Now a number of state governments have been considering and often passing laws that ban state contracts with companies that conduct or comply with boycotts of Israel. As I noted earlier this week, the latest such instance was the decision of New York Governor Andrew Cuomo to sign an executive order ordering the state to divest itself of all economic activity with companies and groups that will be found on a list of those boycotting Israel.
The move has earned Cuomo the praise of most supporters of Israel. But it has also been condemned by a curious list of opponents of anti-BDS laws that include both the anti-Zionist supporters of an economic war on the Jewish state as well as others who worry that such measures are an attack on free speech. While the insincere arguments of the Israel-haters that speciously claim opposition to BDS is McCarthyism need not detain us long here, the notion that state bans on BDS are a threat to freedom does require an answer. While I understand concerns about any government intrusions into the market or the public square, those attempting to argue that BDS is speech that must not be suppressed no matter whether we agree with it are missing the point. Though it is odious, it is certainly legal to advocate for Israel’s destruction. But BDS is discrimination, a thinly veiled anti-Semitic action. Boycotts against the Jewish state are forms of bias against Jews and therefore fall into the category of activity that the state is not obliged to subsidize or support.
The definitive take on the legality of anti-BDS laws was written by legal scholar Eugene Kontorovich in Tablet Magazine last year. Responding to the concerns of former ADL head Abe Foxman, who said that such measures would be struck down in the courts as violations of free speech and allow their supporters to pose as victims. Yet as Kontorovich explains, anti-BDS laws are on firm legal ground. Nothing in them stops Israel haters from advocating their positions. Anti-discrimination measures are not only legal but also commonplace. The government has no right to tell a business owner what to believe or try to stop them from speaking out on those beliefs. But by the same token, there is no obligation on the part of the state to subsidize activity that is abhorrent. It is understood that those who do business with governments can’t practice discrimination.
Contrary to the arguments of National Review’s Noah Daponte-Smith, there is no analogy between anti-BDS laws and those who advocate boycotts against the Chick-fil-a chain because of its donations to anti-same sex marriage groups or the beliefs of its owners. If consumers don’t want to support businesses on that basis they are free to do so just as others may decide they prefer to eat or shop at such places because they agree with those views. Consumer boycotts are legal. However, the threats of some city governments to prevent the chain from doing business in their towns because they don’t like those views were illegal. Yet those governments are also not obligated to invest in or in any way subsidize those stores and that is the focus of anti-BDS laws.
As Kontorovich points out, those who oppose anti-BDS laws aren’t proposing to end regulations that prohibit government entities from doing business or investing in firms and groups that actively and openly engage in discriminatory behavior on the basis of race, religion, gender or sexual orientation. To the contrary, most of the left-wing supporters of BDS warmly support those measures. But what must be understood is that practicing BDS is no different from any other form of bias. Waging war on the one Jewish state in the planet is not an effort to get the government of Israel to change its policies or just an opinion on where its borders should be drawn. BDS is part of a world view that seeks to treat Israel differently from the rest of the world since no other country or people is the object of an international movement bent on its destruction. BDS is part of a campaign to eliminate Israel and, in that sense, merely compliments the efforts of those who seek that end by violence and terror.
Just as the state had a right to ban economic activity with apartheid-era South Africa because of its discriminatory behavior, it has a similar right to choose not to engage with those who practice bias against Jews and the Jewish state.
In 1977, a law passed by Congress helped bring an end to the discriminatory Arab boycott of Israel by making it illegal to comply with restrictions imposed by countries waging war on the Jewish state. That law was constitutional. So, too, are anti-BDS laws that operate on the same basic principle. As Kontorovich pointed out, current boycott efforts are morally equivalent to that illegal effort even though their focus has moved from the anti-Israel laws of foreign states to a new BDS “network of non-state organizations with background state support.”
As I noted previously, we do well to worry about state interventions in any economic activity or executive orders that bypass legislatures. Such laws must be carefully drawn to draw distinctions between advocacy and discriminatory acts. But anti-BDS laws don’t ban speech. What they do is to draw a clear line between our government and those who engage in actions motivated by hate. If that was right with respect to supporting freedom in South Africa, it is just as right to do so when it comes to defending Israel’s right to existence and self-defense.
The BDS movement may cloak itself in the language of human rights but it is the economic arm of a rising tide of anti-Semitism that is sweeping across the globe. Resisting this hate whose purpose is the elimination of Israel is one of the chief moral challenge of our times. Those who fail to see the importance of that struggle are deeply misguided. The decision of many liberal Democrats to frustrate anti-BDS laws in New York and California is an unfortunate indication of the way many in that party have drifted away from support for Israel. But for a group that is primarily tasked with the obligation to fight anti-Semitism like the ADL to wind up on the wrong side of this debate is tragic. At a time when this hate movement is spreading across college campuses, states have a right as well as a duty to stand up against anti-Semitism in the form of BDS. Laws that place states on record to that effect are not only legal, they are a moral imperative.