As many readers of this blog will remember, earlier this year, we had a months-long discussion of the pros and cons of “cancellation” and related topics, initiated in part by this long post of mine in December, and this long rejoinder by David Potts a few weeks later. Feel free to click the “cancel culture” tag to follow some of the preceding and subsequent discussion, which eventually petered out (at least on my end) less through any dearth of topics left to discuss, or desire to discuss them, than from the lack of time to pursue the discussion to a proper conclusion. That said, I thought that the discussion was a useful airing-out of some contentious issues.
I was reminded of it after reading this piece reproduced below from Just Vision, an activist organization dedicated to promoting “a pluralistic, just and rights-respecting future in Israel-Palestine.” Comment, it seems to me, is mostly superfluous: the letter mostly speaks for itself. What it says is that the right to boycott is, constitutionally speaking, on the line. A country that began its political life with boycotts against imperialist occupation, and used them–successfully–for two centuries as a non-violent means of resistance to injustice, is now wondering whether boycotts deserve protection under its Bill of Rights. And what is the countervailing consideration? Whether the US government has the authority to force its citizens and residents not to boycott a foreign power as a condition on accepting public funds. Logically, the demand is inches away from demanding loyalty to that foreign power: coerced alienation of the right to boycott a country is, at a basic level, a coerced confession to honor that country’s claims to respectability.
I’m not sure I would have believed, twenty years ago, that the United States would find its way to a predicament as sinister or absurd as this. But here we are. It has. Imagine that the American civil rights or anti-apartheid movements had confronted a comparable legal prospect: a universal, nation-wide ban on boycotts (or support for them) as a condition on the receipt of public funds. What would the result have looked like? Kind of obvious, I think. Montgomery, Birmingham, Soweto, and Pretoria would probably look a lot like Shaykh Jarrah, Hebron, and Gaza do today. The question is whether the latter places deserve to join the ranks of the former, or whether they’re fated to be consigned to the garbage dumps of human existence. Put it this way: once we lose the right to advocate for them, and to put that advocacy into action, the human garbage dump is where they’re headed.
Dear Irfan,I’m writing with breaking news. Today the Eighth Circuit Court of Appeals ruled that boycotts are not protected by the First Amendment. The ACLU has confirmed they will take the case to the Supreme Court, with huge implications for free speech and the right to boycott in the US. Our team has been following this case closely as one of the key stories chronicled in our latest film, Boycott.The case centers around an Arkansas law that requires public contractors to sign a pledge promising that they do not boycott Israel. Versions of this law have been passed in 33 states since 2016. In recent years, several Americans have challenged these laws, suing their respective states for violating their First Amendment rights. In almost every case — from Texas to Arizona to Kansas to Georgia — the plaintiffs won, with courts finding the anti-boycott laws unconstitutional.The only exception has been Arkansas, where Alan Leveritt, publisher of the Arkansas Times, is the plaintiff. Alan originally lost in District Court but when he appealed to a three-judge panel at the Eighth Circuit, he won. The State of Arkansas was then granted a re-hearing.Today, the final ruling came out against Alan with the court deciding that boycotts, even when politically motivated, are strictly economic activity and not a form of expression. Brian Hauss, the ACLU’s chief litigator in the case has said that the decision “misreads Supreme Court precedent and departs from this nation’s long standing traditions.” He expressed hope that the Supreme Court “will set things right and reaffirm the nation’s historic commitment to providing robust protection to political boycotts.”Alan believes that as a news publisher, he has a special duty to stand up for free speech rights. As he wrote in a New York Times Op-Ed: “We don’t take political positions in return for advertising. If we signed the pledge, I believe, we’d be signing away our right to freedom of conscience. And as journalists, we would be unworthy of the protections granted us under the First Amendment.”When we started filming Boycott, we understood there was a risk that the anti-boycott legislation vis-a-vis Israel could be used as a template. By the time we finished the film, this was already becoming a reality. There are now copycat bills targeting boycotts of fossil fuels, firearms and other industries. As Alan’s case heads to the Supreme Court, it is not only advocacy for Palestinian rights, the environment or gun safety that stands on the line — but our very right to protest, and to band together for collective political action.With the stakes increasingly high, we remain committed to sounding the alarm on this story, and you can help us. Share the news on social media, ask your go-to news outlet to cover this story and get in touch to organize a screening of Boycott in your community. These laws have been able to pass with such ease in large part due to the lack of public scrutiny around its origins and implications.The time to change that is now.Onwards,Julia BachaCreative Director, Just VisionDirector, Boycott
While the Eighth Circuit is clearly in the wrong here … remember that Title II of the Civil Rights Act of 1964 states that businesses of specific types can’t refuse to serve members of a “protected class”? This Arkansas law follows the same principle. Both laws require that some “economic activity” must occur, if the opportunity arises, on the grounds that refusing to do so is based on racial or religious bigotry, which is politically suspect. In fact the Arkansas law is less strict than the Civil Rights Act, since the only penalty it prescribes for boycotting Israel is being unable to work for the state; Title II allows the Attorney General to drag a “public accommodation” into court if he suspects it of illegal prejudices.
The Eighth Circuit’s basic error is to hold that economic activities are somehow distinct from, and not covered by, any of the prohibitions in the Bill of Rights, so Congress can prohibit or require such activities if there’s a good enough reason. The Civil Rights Act, and quite a lot of federal law since FDR, has been licensed by that presumption. But in fact no such distinction can be consistently drawn, and whether a given economic activity is treated as protected or not depends on whether the state and the courts approve of it.
I half-agree with that, or perhaps agree with half of that. I agree with your second paragraph, and obviously, with the opening claim that the Eighth Circuit is in error. I regard Title II as a debatable issue, but whatever position one takes on it, it seems to me a stretch to say that the Arkansas law, or generally, these anti-boycott laws, “follow the same principle.”
This is the opening clause of Title II:
My refusal to sign the functional equivalent of a loyalty oath to Israel–my refusal to waive my right to boycott Israeli products–is nowhere in the ballpark of denying anyone full and equal enjoyment of goods, services, facilities (etc) on grounds of race, color, religion, or national origin.
For one thing, the businesses I claim the right to boycott don’t have a prior right to my patronage. So I’m not “denying” them anything to which they have an antecedent right. And notice that I don’t have to have any kind of prior contact with them to stand in the relevant relationship to them. I don’t even actually have to be boycotting them. The businesses in question just have to be such that I claim a right to boycott them, whether I actually boycott them or not. There need not be even an implied relationship with the relevant businesses through preliminary contact that might otherwise trigger an obligation (e.g.,, an initial offer, an interview, etc.). The necessary condition for triggering the law is simply an assertion of the right not to patronize Israeli businesses while receiving public money, all in the context of a totally unrelated contract.
It’s just nonsensical to say that my asserting, in my head, that I have the right to boycott, say, Sabra hummus, is a case of my “denying” someone full and equal enjoyment of goods, services, (etc)–up to and including the case where I assert and insist on the right to boycott Sabra, but end up buying the hummus anyway! As far as the anti-boycott laws are concerned, the mental act of insisting on the right is fully sufficient to trigger the law. If I assert a right to boycott Sabra hummus, either I must, contrary to my conscience, waive the right, or I must disclose that, in conscience, I claim such a right. Once I disclose the latter belief, I trigger the law. Once I trigger the law, I am the one discriminated against, even I’m too weak-willed to act on the right that I assert (e.g., even if I buy Sabra hummus despite having scruples against it). I don’t think it takes much in the way of legal analysis to see the injustice there.
Second point: the rationale of the anti-Israeli-products boycott movement is political, focused on the abuses of an ongoing military occupation and settlement enterprise; it has nothing to do with discrimination on grounds of race, color, religion, or national origin. The framers of these laws have been loose to the point of defamation about equating it with anti-Semitism, but that’s just tendentious rhetoric on their part, not argument. If they want to assert that a given individual is discriminating on invidious grounds, they have to show that.
The Revolutionary War analogy I made in the original post is worth stressing here. Given the role of boycotts in the American colonists’ response to the British occupation prior to the Revolutionary War, the Revolutionary era boycotts of the British would themselves have run afoul of contemporary anti-boycott strictures. That strikes me as a reductio ad absurdum of the entire enterprise. They’re willing, in the name of Israel, to de-legitimize the boycotts that led to the founding of the United States itself? It’s remarkable that leftists who want to pull down statues of people like Christopher Columbus are accused of wanting to “erase history,” but those who support such boycotts on behalf of Israel are not.
Finally, the framers of these anti-boycott laws are notoriously imprecise about how they define “Israel.” East Jerusalem and Golan are Israeli by unilateral annexation. The West Bank is Israeli by conquest and occupation. A reasonable person would wonder whether boycotts of entities operating within these locations is to be equated with boycotts of entities within Israel proper. But the anti-boycott laws are deliberately written to blur this distinction.
In New Jersey, the relevant law (S.1923) empowers the state to take action against any entity that “boycotts, divests from, or sanctions Israel or Israeli businesses, or boycotts those doing business with Israel, or boycotts companies operating in Israel or Israeli-controlled territory.” I’ve asked my local state legislator (Shirley Turner, a Democrat) for clarification of the latter phrase, “Israeli-controlled territory,” without having gotten a clear response from her (I first made the request in October 2021). In principle, “Israeli-controlled territory” could well include Palestinian cities within Area A under the Oslo Accords, like Ramallah, Bethlehem, and Jenin, supposedly under “full” Palestinian control, but de facto under Israeli control in the sense that the Israeli military has full authority to enter them at will for security reasons, and does. Though this is a relatively narrow issue, it seems to me that the framers’ failure to provide a legal definition of “Israel” makes many such anti-boycott laws void for vagueness, a fact exacerbated by Israel’s refusal to label products manufactured in Israel proper vs. in the West Bank (or better yet, in some particular location within the West Bank).
An implication of the preceding is that one’s action can be regarded as an illegal boycott even if one declares an intention to stop doing business in disputed territory that is arguably not Israeli (because it’s squarely within Palestinian territory). Meanwhile, one has no right to be told which products come from Israel proper and which come from disputed territory, even assuming a desire to comply fully with the letter of the law as written. Boycotting an Israeli biotech company based in Tel Aviv would treated as equivalent to boycotting an Israeli (or Israeli-American) company located in the West Bank whose sole function was to induce Palestinians into making fraudulent land sales within Areas B and C in the West Bank. The distinction between those two sorts of entities, and the differences in the activities they engage in, are morally transparent to virtually anyone, but is not recognized by these laws.
Legalities aside, I think the underlying rationale of these laws is obvious: the intent is to normalize the idea that we owe moral and political allegiance to Israel. That would be bad enough if Israel wasn’t an occupying power, but it’s a travesty given the fact that it is.
Here is the text of the New Jersey anti-boycott law. It was S.1923, but is now chapter 24 of the state code, supplementing PL 1950.
Click to access 24_.PDF
Joining a boycott against Israel is, by definition, forming an intention to deny persons the enjoyment of goods, services, etc. under your control, because those persons originate from the nation of Israel. As national origin is one of the protected categories listed in Title II, the principle of the law is exactly on point. True, the main thing the boycotters are withholding is money, but I’d be amazed if they – if you – thought performing non-monetary services for Israeli firms wasn’t just as bad or worse than just buying their products.
As for the legislators’ presumption that the boycotts against Israel are inspired by anti-Semitism … well, that has a precedent in civil rights law, too. It’s called “disparate impact”: the idea that if some conduct has the effect of placing members of a protected class at a disadvantage, relative to the general population, then the most probable reason to engage in that conduct is bigotry against the protected class. You have to admit that a boycott of Israel, if it has any effect at all, will place Jews at a disadvantage relative to Gentiles, due to the ethnic composition of Israel. By the rule of disparate impact that effect is enough grounds to outlaw them.
Should the declared reason of the boycotters, that they’re protesting specific policies of the state of Israel, be presumed in law to be the actual reason, in the absence of contrary evidence? Yes, of course. My point is just that the logic behind the Civil Rights Act, and the logic behind these anti-boycott laws, is the same. The further consequences of that point I leave as an exercise.
I repeat, by the way, that the results of the anti-boycott laws are quite mild. Under them the boycotters are receiving exactly the consequence they wish to inflict on Israelis: the loss of opportunity to do business. If Arkansas and New Jersey were purely private entities, not agents of all their citizens, there would be no question that what they were doing was permitted. The issue arises only because they are governments, acting in the name of the public.
Finally, there’s an easy distinguo between the boycotts leading up to the American Revolution and the boycotts against Israel today (or the conduct forbidden by the Civil Rights Act.) The American colonists did not regard themselves as a different “race, color, religion, or national origin” from Great Britain at the time of the boycotts. Thus the motive of bigotry cannot even be suspected of them.
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