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Boycotts to Achieve Political Change Are Forms of Political Speech

Any attempt by Congress to legislate against a grassroots movement contradicts the values that are embodied in the First Amendment.

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Janine Jackson: Attempts to constrain the ability of corporations to do anything they want — steal wages, dump toxins, hide profits, shape elections — are not the rule, to put it mildly, in US politics. That alone makes notable the Israel Anti-Boycott Act, introduced by Democratic Senator Ben Cardin, that seems to impose sanctions on companies that heed calls from human rights groups to boycott products from Israeli settlements. Of course, because we’re talking about Israel and Palestine, the Act is about much more than its legal specifics, and its impact may go beyond whether or not it actually passes.

What’s going on here, and are media adding light or just heat? Josh Ruebner is policy director at the US Campaign for Palestinian Rights and the author of Shattered Hopes: Obama’s Failure to Broker Israeli/Palestinian Peace, as well as the upcoming Israel: Democracy or Apartheid State?. He joins us now by phone from Washington, DC. Welcome to CounterSpin, Josh Ruebner.

Josh Ruebner: Thank you very much for having me.

There seems to be confusion, maybe not entirely unintentional, about what this Act is aimed at doing, and whether that represents a change or not. Of course, if it didn’t change anything, you’d wonder, why do it? But can you tell us what the bill says it would do, and what you think is reasonable to say would flow from it?

There is a lot of confusion about this bill, because if you read the text of it, it does not say that you could land yourself in jail for 20 years and face a million dollar fine if you boycott Israel or Israeli settlement products. What the bill does is reference an underlying law, make amendments to that, and then make reference to another underlying law which describes the penalties. So I do have a lot of sympathy with some members of Congress who have come out, since the ACLU said that this bill was in direct violation of the First Amendment, I do have some sympathy with them claiming that they really did not understand what they were signing on to, since it’s not clear at all.

But this would be the tangible effect, that if you express support for an international governmental organization’s call for a boycott of Israel or its settlement products, you could find yourself criminalized for doing so.

Now, does it really refer to individuals, or is it only talking about companies?

This is the ACLU’s interpretation, which we agree with. Clearly, the focus is on, not only imposing fines on corporations that adhere to these boycotts, but also potentially criminalizing the acts of their CEOs or their board of directors for engaging in these boycotts. But under the ACLU’s understanding of this law, and ours, you could conceivably be criminalized if you, for example, post on your Facebook page, “I support what the UN Human Rights Council is doing to compile a list of Israeli settlement products, and I’m not going to buy any of those products.” According to the text of this law, if you take an action that has the effect of furthering one of these boycotts, you could be penalized and criminalized. So, yes, individuals could be caught up in this dragnet, as well as corporations.

The ACLU’s very forceful and, it would seem, effectual response — I’d like to ask you to just draw out a little bit their First Amendment point, because it’s really quite clear, it seems to me. What’s the substance of why they see this as a First Amendment violation?

Well, the Supreme Court ruled, in the case NAACP v Claiborne Hardware, that boycotts to achieve political, economic or social change are forms of political speech that are on the highest rung of the hierarchy of First Amendment values. So what the ACLU raises, in its concerns about this bill, is that this is a direct violation of the First Amendment by attempting to criminalize a First Amendment-protected form of political speech, namely a boycott.

Right; they note that businesses who just happen not to do business or buy products from Israel or settlements, that they won’t be punished. You know, you won’t be punished for not engaging in that activity; you’ll only be punished if you don’t engage in that activity for political reasons.

That’s exactly right. And it’s so unbelievably hypocritical for especially Democratic members of Congress, who are posturing as these giants of free speech and anti-authoritarianism in the age of Trump, to be putting their names onto legislation that would throw company executives and individual citizens into jail for expressing a political opinion.

I mean, we hear all the time from Israel and its advocates, “We don’t want Israel to be singled out, we don’t want Israel to be held to a different standard.” And I agree, Israel should be held to the same exact standard as everyone else, that means human rights and international law. And here we have this spectacle of Congress bending over backwards to try to carve out an exemption in the First Amendment to criminalize political speech against Israel.

Well, OK, but then I come across this Daily Beast article, “Pay No Mind to the Fake Ruckus About a Phony Israel Anti-Boycott Law.” The bill doesn’t do what critics say, it doesn’t do what proponents say. The ACLU is lazy and incompetent. All the bill does is add the phrase “including the UN” to the existing law that says that US companies can’t participate in boycotts led by other countries. So pipe down, dummies, I think would be a fair rendering of this article.

What do you make of this idea that — it seems to be going back to this idea of what’s in the letter of the bill and what its implications are — but this idea that this is all just meaningless?

I read Jay Michaelson’s piece in the Daily Beast, and I couldn’t disagree with it more. And it’s very telling that in his piece, he actually doesn’t reference the penalties that would be imposed on corporations and individuals in this bill. So of course if you don’t actually reference the draconian nature of this bill, it doesn’t seem so bad. So to me, it’s a direct obfuscation of what the bill actually does.

The BDS movement, the Boycott, Divestment and Sanctions movement, generally, gets coverage in US media that’s really hard to compare to anything else. The connection with college campuses makes it a good target for those on the right and the left who think that young people are inherently unnuanced and intolerant. But I did a quick search and I really couldn’t find, out of dozens of articles, a story that was really anything other than “BDS is encouraging antisemitism,” “BDS is antisemitism” or “BDS is anti–free speech.” What do you make, generally, of US media’s coverage of the movement?

Well, to the extent that the media’s coverage of the BDS movement parrots the line of the Israeli government and its supporters in the United States, it’s of course incredibly misleading. The Palestinian civil society call for BDS is a call that’s based on universal human rights, that is framed in an anti-racist, anti-discriminatory framework. The BDS movement works both with Israeli Jews who support the principle, and it works with Jewish organizations worldwide, including here in the United States, through Jewish Voice for Peace.

So to ascribe to this movement this charge that it is antisemitic is just a way of diverting from what the actual issues are that are being raised by the BDS movement, which is Israel’s now half-century long military occupation of the West Bank, East Jerusalem and the Gaza Strip, Israel’s denial of equal rights to Palestinian citizens of Israel, and its 70-year- plus refusal to allow Palestinian refugees to exercise their internationally recognized right to return to the homes and the lands from which they were expelled by Israel when it was created in 1948. So to me, this is a diversionary tactic to attempt to get around a debate about what the issues are that actually animate the BDS movement.

Well, yes, it’s easier to dismiss a movement that way if you don’t talk too much about what it is they’re fighting. And it’s hard to miss that this story about Israel’s particular vulnerability and need for protection is playing out along with an overwhelming media disinterest in what’s happening in Gaza, for example.

I guess just final thoughts on what you think the likely kind of impact — it sounds like maybe this law is not going to happen, but can it have an effect even if it doesn’t?

I think that the chances are very likely that the ACLU’s opposition to the bill will have killed it, but it’s certainly not a license for activists to let up on their opposition to this bill, because there has been talk of maybe amending it to try to evade the First Amendment constitutionality concerns over it. But we believe that any attempt by Congress to legislate against a grassroots movement contradicts, on its face and in principle, the values that are embodied in the First Amendment. And even if this bill doesn’t pass, there are still other anti-BDS bills pending in Congress and in dozens of state legislatures throughout the country.

We’ve been speaking with Josh Ruebner, policy director at the US Campaign for Palestinian Rights. They’re on line at Josh Ruebner, thank you very much for joining us this week on CounterSpin.

Thanks for having me.

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