Actually, There are *Two* Anti-BDS Bills in the Senate Right Now

The word 'Boycott' stenciled on a concrete wall.
Martin Abegglen via Flickr (Creative Commons)

There’s a lot of finger-wagging and tongue-clucking going on lately about “free speech.” The extreme right has appropriated the term as a rallying cry and dog-whistle so effectively that a bigoted murderer defiantly yelled “free speech or die” during his court hearing. On the flip side, militant leftists on and off campus have raised the ire of both right-wingers and the liberal class by taking supposedly anti-free speech actions like violently protesting Charles Murray speeches and Proud Boys rallies.

The extent to which free speech at large is actually under threat is a point of hot debate, and I have a lot of conflicting thoughts on the matter. There is, however, at least one definitive, real threat I can think of, not only to the principals of free speech, but to the First Amendment’s guarantee of free expression. It’s targeted at the boycott, divestment, and sanctions (BDS) movement.

Criminalizing BDS

The BDS movement is, in a nutshell, one based on the premise that the state of Israel is practicing settler-colonialism and brutal apartheid at the expense of Palestinians. Its form of protest is economic—the eponymous boycotts, divestments, and sanctions. The goal is to put pressure on Israel to improve conditions for Palestinians.

It’s controversial, but so is anything that has to do with issue of Israel and Palestine.

This past week there was a lot of commotion—rightly—because of a bill currently in both houses of Congress that would criminalize BDS, literally. As reported in The Intercept by Glenn Greenwald and Ryan Grim, the Israel Anti-Boycott Act would make it against the law to participate in or support boycotts against Israel, effectively criminalizing the BDS movement in the United States. According to the ACLU, the consequences for violating the law would be a “minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.”

Completely leaving aside questions and debates surrounding the state of Israel, Palestine, and the morality of the BDS movement, this is outrageous.

Regardless of your attitudes toward the state of Israel, opposition to its current treatment of Palestinians is an understandable and completely valid political position. BDS is an expression of that position, and a non-violent one. It’s political speech, and should be protected under the First Amendment. This doesn’t seem controversial.

A Letter from Senator Murphy

The bill is co-sponsored by one of my senators, Richard Blumenthal. I wrote him a letter explaining my opposition to the bill, and urging him to stop his support. I sent similar letters to my other senator, Chris Murphy, and my representative Rosa DeLauro, urging them not to support the bill.

So far, only Murphy has responded. Here’s what he said:

Thank you for contacting me about Israel. I appreciate your correspondence and hope that you find this response helpful.

The United States is an unshakable ally of Israel. Our bond with Israel goes beyond political calculations; our two nations’ interests, fates, and values are inextricably linked. Both Israel and America are bastions of democracy and places where refugees can begin new lives free from persecution. In this era of growing international unrest, our national security depends on having a strong and secure Israel as a democratic ally in a turbulent part of the world.

Israel’s security is a top priority of mine. With Hezbollah and Hamas continuing to pose a dangerous threat to Israel’s national security, American support for Israel has never been so important. In September 2016, I was pleased to see the United States and Israel agree to a new Memorandum of Understanding to provide $38 billion in military assistance to Israel for Fiscal Years 2019-2028, the largest commitment in U.S. history. The agreement is a leap forward for Israel’s security and will help Israel maintain a qualitative military edge in its volatile region. The U.S. must do all that we can to help keep Israel safe.

As a strong supporter of the state of Israel, I also oppose the Boycott, Divestment, and Sanctions (BDS) movement that aims to increase economic and political pressure on Israel. The BDS movement does not recognize the legitimacy of Israel’s existence and its proponents have often engaged in unacceptable anti-Semitic rhetoric. That is why I am a proud cosponsor of the Combating BDS Act, which would explicitly authorize U.S. states and municipalities to boycott or divest from entities that engage in boycotts, divestments, or sanctions targeting Israel.

As a close friend and ally, I also believe we should work with Israel towards a lasting peace with the Palestinian people. As a Member of the Senate Foreign Relations Committee, I will personally continue to advance the cause of a comprehensive peace in the Middle East, including a two-state solution which ensures security and dignity for both Israelis and Palestinians.

Thank you again for contacting me about this matter.  I appreciate hearing from you and assure you that I will always do my best to represent the views of my constituents in the Senate. In the future, please do not hesitate to call me in my Connecticut office at (860) 549-8463 or in my Washington office at (202) 224-4041.

Every Best Wish,

Christopher S. Murphy
United States Senator

So, Senator Murphy takes a pretty orthodox stance on Israeli foreign policy. Not too surprising, I guess. But note this: he doesn’t address the Israel Anti-Boycott Act (S. 720) at all. He expresses his support and co-sponsorship of the Combating BDS Act, which, it turns out, is a completely separate bill in the Senate (S. 170).

The Combating BDS Act

Where the Israel Anti-Boycott Act makes support of BDS and other boycotts criminal, the Combating BDS Act merely “allows a state or local government to adopt and enforce measures to divest its assets from, prohibit investment of its assets in, or restrict contracting with” boycotters or supporters of boycotts. Boycotting the boycotters, as it were.

The Combating BDS Act of 2017 appears to be identical to the Combating BDS Act of 2016 (S. 2531). Like, in places it’s word for word:

the text of the Combating BDS Act of 2016

text of the Combating BDS Act of 2017

So if the Combating BDS Act doesn’t pass during this session, it seems pretty likely that we’ll be seeing the Combating BDS Act of 2018 during the next one. And, even if we don’t, the states have already taken their own initiative. As Josh Reubner of EI wrote back in February of 2016:

Illinois signed into law a bill last year requiring the state to divest from foreign companies that support boycott, divestment or sanctions (BDS).

State legislatures in Arizona, California, Florida, Indiana and New York are currently considering similar legislation targeting any US-based or foreign entity that boycotts or divests over concerns about Israel’s human rights record. (Other states are also considering legislation to ban contractors from doing business with the state if they support BDS, another form of anti-BDS legislation not covered by the Combating BDS Act.)

Reading about all of this has been a dispiriting experience. I plan to keep calling and writing my senators on this issue, as it seems to be at the top of a pretty slippery slope.

What else is free speech for?