Keith Mack
The Boycott, Divestment, and Sanctions (BDS) movement calls for boycotting Israel until it ends its occupation, treats Palestinian citizens equally, and honors internationally recognized rights. Since 2015, 27 US states have passed anti-BDS laws, with 35 states enacting anti-boycott legislation as of 2024. These laws take two primary forms: contract-focused laws that require government contractors to certify they are not boycotting Israel, and investment-focused laws that mandate public investment funds to divest from entities involved in boycotts of Israel. The debate about the constitutionality of these laws centers on two issues: whether boycotts of Israel can be considered a form of discrimination, and whether political boycotts are protected speech under the First Amendment. While some analysts argue that anti-BDS laws are constitutional and do not violate the First Amendment, others, including the ACLU, assert that these laws infringe on freedom of speech and expression. As of 2020, the question of whether American anti-BDS laws are constitutional has not been settled in courts, and many expect a legal showdown in the future.
| Characteristics | Values |
|---|---|
| Number of states with anti-BDS laws | 27 or 35 |
| First state to pass an anti-BDS law | Florida |
| Year of the first anti-BDS law | 2015 |
| Number of federal courts that have blocked anti-BDS laws on First Amendment grounds | 3 |
| Number of states targeted by the ACLU for violating freedom of expression | Several |
| Number of states whose anti-BDS laws explicitly target companies that refuse to do business in Israeli settlements | 17 |
| Number of states that have taken punitive measures against Airbnb for boycotting Israel | Several |
| Number of states that have passed anti-BDS laws | Majority |
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What You'll Learn
Free speech and the First Amendment
The First Amendment to the US Constitution protects freedom of speech. The text of the First Amendment states:
> "Congress shall make no law...abridging freedom of speech."
The US Supreme Court has often struggled to determine what exactly constitutes protected speech. The First Amendment protects the right not to speak, such as the right not to salute the flag. It also protects symbolic speech, such as students wearing black armbands to school to protest a war.
The debate about the constitutionality of anti-BDS laws focuses on two central issues: whether boycotts of Israel can be considered a form of discrimination, and whether political boycotts are protected speech. If boycotts of Israel are discriminatory, the government could be free to enact laws against them.
Supporters of the anti-BDS laws argue that they do not restrict constitutionally protected free speech. For example, the Combating BDS Act (CBA) specifically notes that:
> "Nothing in this title shall be construed to infringe upon any right protected under the First Amendment to the Constitution of the United States."
The CBA only covers corporations' commerce- or investment-related activities in the course of interstate or international commerce. It does not apply to individuals, who are free to boycott or criticise Israel.
However, critics of anti-BDS laws argue that they are a form of "retribution for the content of speech" and that they violate the First Amendment-protected freedom of speech. The American Civil Liberties Union (ACLU) has challenged the constitutionality of several states' laws as violations of freedom of expression.
As of 2020, the question of whether American anti-BDS laws are constitutional has not been settled in court. Analysts believe that there will eventually be a legal showdown due to the controversial nature of the laws.
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Discrimination and anti-discrimination laws
Anti-discrimination laws refer to legislation designed to prevent discrimination against particular groups of people. These groups are often referred to as protected groups or classes. Anti-discrimination laws vary by jurisdiction with regard to the types of discrimination that are prohibited and the groups that are protected by that legislation. Commonly, these types of legislation are designed to prevent discrimination in employment, housing, education, and other areas of social life, such as public accommodations. Anti-discrimination laws may include protections for groups based on sex, age, race, ethnicity, nationality, disability, mental illness or ability, sexual orientation, gender, gender identity/expression, sex characteristics, religion, creed, or individual political opinions.
Anti-discrimination laws are rooted in principles of equality, specifically, that individuals should not be treated differently due to their characteristics. These laws are designed to protect against both individual discrimination (committed by individuals) and structural discrimination (arising from policies or procedures that disadvantage certain groups). Courts may take into account both discriminatory intent, disparate treatment, and disparate impact in determining whether an action or policy constitutes discrimination.
In the context of the BDS movement, the constitutionality of anti-BDS laws in the United States has been questioned. The debate focuses on two central issues: whether boycotts of Israel can be considered a form of discrimination, and whether political boycotts are protected speech under the First Amendment. Many analysts believe that there will eventually be a legal showdown due to the controversial nature of these laws.
Some states have passed anti-BDS laws that require companies and individuals to certify that they are not boycotting Israel or Israeli settlements to be eligible for contract work with the state. These laws have been criticized by groups such as the American Civil Liberties Union (ACLU), which argues that they violate freedom of expression and constitute "retribution for the content of speech."
On the other hand, supporters of anti-BDS laws argue that they are necessary to combat discrimination against Israeli or Jewish entities. They argue that boycotts of Israel are "fair in form but discriminatory in operation," even if that is not the explicit intent. However, critics of anti-BDS laws counter that the majority of companies targeted by BDS are not Israeli, making it difficult to argue that the boycott harms Israeli or Jewish businesses.
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The legality of boycotts
The Case for Anti-BDS Laws
Proponents of anti-BDS laws argue that these measures are necessary to combat perceived supporters of the BDS movement, which calls for boycotting Israel until it ends its occupation and treats Palestinian citizens equally. They assert that anti-BDS laws do not violate the First Amendment as they regulate economic conduct and do not target protected speech or association. Additionally, they claim that such laws provide clarity that states have the authority to act against commerce- or investment-related boycotts of Israel without overstepping federal authority.
The Case Against Anti-BDS Laws
On the other hand, critics argue that anti-BDS laws infringe upon constitutionally protected free speech and the right to boycott. They contend that these laws stifle dissent and political debate by imposing conditions on government contractors and beneficiaries of public funding. The American Civil Liberties Union (ACLU) has challenged the constitutionality of these laws, asserting that they constitute "retribution for the content of speech." Additionally, legal experts have asserted that certain anti-BDS bills are unconstitutional, and thousands have protested against them.
Legal Precedents and Court Rulings
The interpretation of boycotts as conduct rather than expression protected under the First Amendment has been a key aspect of anti-BDS arguments. However, the NAACP v. Claiborne Hardware case has been cited in support of the protection of BDS activities under the First Amendment. As of 2019, federal courts have blocked anti-BDS laws on First Amendment grounds at least three times, reinforcing the right to boycott in the United States.
Global Perspective
The debate surrounding the legality of boycotts is not limited to the United States. Anti-BDS initiatives have gained traction in Europe, with French prosecutors bringing criminal charges against activists promoting boycotts of Israel.
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Federal versus state authority
The constitutionality of anti-BDS laws in the United States remains a contentious issue, with federal and state authorities clashing over the legality of such measures. At the heart of the debate is the tension between federal authority and state powers, specifically regarding the regulation of economic boycotts and the protection of free speech.
The United States Constitution establishes a federal system of government, dividing powers between the federal government and state governments. While the federal government holds certain enumerated powers, states retain authority over areas not specifically delegated to the federal government. This division of powers often leads to disputes over the legality of state actions that may conflict with federal laws or constitutional protections.
In the context of anti-BDS laws, the primary federal consideration is the protection of free speech under the First Amendment. The right to free speech is a fundamental principle in the US Constitution, and any law that potentially infringes on this right is subject to strict scrutiny by the federal courts. Anti-BDS laws, which seek to prohibit public sector employees and government contractors from engaging in BDS protests, have been challenged on First Amendment grounds. Federal courts in Arizona, Kansas, and other states have blocked such laws, arguing that they restrict constitutionally protected rights of free speech, expression, and association.
On the other hand, state governments assert their authority to regulate economic boycotts and their discretion in funding programs. State legislatures passing anti-BDS laws argue that these laws do not target protected speech but instead focus on economic conduct. They contend that states have the right to decide how to allocate their resources and that anti-BDS laws are a valid exercise of this authority. Additionally, states highlight their historical precedent for regulating boycotts, aligning with a long-standing tradition of treating boycotts as conduct rather than protected expression.
The Combating BDS Act (CBA) further complicates the federal versus state dynamic. The CBA clarifies that states have the right to pass anti-BDS laws without preempting federal authority. It emphasizes that states "may" adopt measures, indicating that states have the choice to enact such laws rather than being compelled to do so. The CBA seeks to protect states from claims of preempting federal power while also demonstrating congressional support for opposing boycotts of Israel.
In conclusion, the debate over the constitutionality of anti-BDS laws pits federal authority to protect free speech against state authority to regulate economic boycotts and make funding decisions. While federal courts have intervened to block some anti-BDS laws, the ultimate resolution to this complex issue remains uncertain, with ongoing legal challenges and a dynamic political landscape influencing the outcome.
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The impact on companies and individuals
The impact of anti-BDS laws on companies and individuals in the United States varies depending on the specific state and its legislation. Over 250 million Americans, or 78% of the population, live in states with anti-boycott laws or policies. As of 2024, 35 states have enacted anti-boycott legislation related to BDS, with 27 of these states adopting laws or policies that penalize businesses, organizations, or individuals that engage in or call for boycotts against Israel.
The practical impact of these laws on companies is that they are coerced into professing a specific viewpoint, namely not boycotting Israel, to be eligible for contract work with the state. This viewpoint is certified through a declaration or signature, and companies that refuse to comply may face penalties or lose out on business opportunities. For example, in Texas, individuals were required to sign a certification that they are not engaged in boycotts of Israel or settlements or forgo opportunities and lose income. In some states, companies with large government contracts may find it challenging to walk away from their livelihood and that of their workers, effectively deterring them from boycotting.
The impact on individuals is more nuanced. While some argue that anti-BDS laws violate the First Amendment right to free speech and freedom of expression, others claim that these laws only target economic conduct and do not impede individuals' right to boycott or criticize Israel. In practice, individuals who refuse to sign the certification may face consequences such as losing income or business opportunities. However, there have been successful legal challenges to anti-BDS laws, with judges agreeing that boycotting is protected by the U.S. Constitution in some cases.
The impact of anti-BDS laws has also led to a broader movement targeting other political and social causes characterized as ESG (environmental, social, and governance) scores. This expansion beyond boycotts of Israel indicates the potential for anti-BDS legislation to be used as a tool to suppress protest against various groups or causes.
Overall, the impact of anti-BDS laws on companies and individuals in the US varies by state and is the subject of ongoing legal and political debate.
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Frequently asked questions
As of 2020, the question of whether American anti-BDS laws are constitutional has not been settled in courts. However, many analysts believe that there will be a legal showdown due to the controversial nature of the laws.
BDS laws are anti-boycott laws that combat the Boycott, Divestment, and Sanctions (BDS) movement against Israel.
BDS laws require recipients of public contracts and state investments not to participate in boycotts of Israel.
BDS laws require companies to certify that they are not boycotting Israel or Israeli settlements to be eligible for contract work with the state.
Yes, there have been legal challenges to BDS laws on the grounds of violating freedom of expression and the First Amendment. In 2019, a federal court in Texas blocked a state law requiring government contractors to certify that they are not engaged in boycotts.
