Anti-BDS law can’t be ‘pro-Israel’ if it tramples on free speech

This is the first of two contrasting views on an executive order by New York Gov. Andrew Cuomo that prevents state agencies from doing business with companies that support a boycott of Israeli products. In the second, a law professor who tracks anti-BDS legislation says such laws do not pose a First Amendment problem.



NEW YORK (JTA) — If you’re a supporter of Israel and of the Jewish community, you should be very worried about a new executive order issued by New York Gov. Andrew Cuomo on June 5.

While billed as an initiative to prevent New York state from supporting the Boycott, Divestment, Sanctions (BDS) movement, the law actually constitutes a frightening attack on free speech while likely creating a backlash that will do harm both to Israel and the Jewish community.

Cuomo’s order mandates the creation of a list of every company worldwide that “engage[s] in any activity, or promote[s] others to engage in any activity, that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel for purposes of coercing political action by, or imposing policy positions on, the government of Israel.”

That is, a company might end up on the list because it actually chooses to boycott Israel. Or it might end up on the list because of a statement by its CEO or a board member. Since the executive order makes no distinction between what’s inside or outside the Green Line — Israel’s pre-1967 borders — a company that chooses to set up shop in Israel proper but avoid the settlements might find itself on the New York blacklist. Ditto a company whose leadership publicly calls for a distinction between Israel and the settlements, or who otherwise criticizes government policy.

I oppose boycotting or divesting from Israel. Yet the right to free speech means, in the famous words of Evelyn Beatrice Hall, that even if “I disapprove of what you say … I will defend to the death your right to say it.” The way to fight distasteful speech is with more speech, not by shutting down the other side.

Cuomo’s action constitutes a dangerous threat to this right. As explained by Lara Friedman of Americans for Peace Now, which also opposes BDS, the order seeks to achieve “the goal of chilling/suppressing such constitutionally protected free speech. It does this by defining such free speech – including the act of merely calling for boycotts – as de facto illegitimate.”

In fact, boycotts constitute legally protected speech. Cuomo himself has joined a boycott in barring non-essential New York state travel to North Carolina in response to its discrimination against transgender people. T’ruah, the organization I lead, has endorsed a boycott of Wendy’s, declared by the Coalition of Immokalee Workers, in response to the company’s refusal to participate in the standards adopted by the rest of the fast-food industry to protect the workers who pick their tomatoes. In the 1960s and 1970s, thousands of members of the Jewish community joined in boycotts of lettuce and grapes. More recently, prominent rabbis called for a boycott of Whole Foods in response to the CEO’s support of a known sexual offender.

Only half a century ago, the American Jewish community suffered disproportionately from a blacklist that aimed to wipe out certain political discourse and associations. Even then, perceptive Jews understood that an attack on the free speech of one community would ultimately affect all of us. In his 1947 testimony to the House Un-American Affairs Committee, playwright Samuel Ornitz declared, “In speaking as a Jew, I speak in a deeper sense as an American, as the one who has to take the first blow for my fellow Americans. For when constitutional guarantees are overridden, the Jew is the first one to suffer … but only the first one.”

As Jews who have too often suffered from invasions on our civil liberties, we cannot pretend that the attack on free speech will spare us. Nor can we defend or ignore an attack on American democracy, which has allowed our community unprecedented safety and religious freedom.

This is not to say that all speech is protected. Proponents of BDS have sometimes blurred the lines by insisting that free speech includes the right to say anything anywhere anytime. Rather, this right prevents the government from regulating speech. Those who complain about being evicted from forums where they try to yell over an Israeli speaker, or about not being invited to speak in certain settings, cannot claim a violation of free speech. Nor is there constitutional protection for hate speech, such as that defaming Jews or inciting violence. BDS supporters seeking allies on free speech protections lose their credibility when they ignore these distinctions.

Beyond the violation of free speech, the executive order and the likely copycat laws have already sparked a backlash against Israel and the Jewish community. To some, our community’s willingness to tolerate and promote such strategies proves our unwillingness to hear any criticism of the State of Israel or of its current government. This perception only fuels the growing BDS movement. To reverse this trend, Jewish organizations that have publicly supported New York’s anti-BDS measure must ask Governor Cuomo to rescind this law, oppose the passage of copycat laws and proudly stand up for the right of free speech, even when we disagree.

Ultimately, BDS will not be overcome through banning speech, through rhetoric or through diverting attention to Israel’s positive contributions to the world. The only way to end popular support for BDS is to create a long-term agreement that protects the human rights and security of both Israelis and Palestinians. Rather than support extreme measures to curtail free speech, Jewish organizations and leadership — both in the United States and in Israel — should devote our full energy and creativity to this pursuit of peace.

(Rabbi Jill Jacobs is the executive director of T’ruah: The Rabbinic Call for Human Rights.)

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