Maria LaHood: Recent Legislation Threatens First Amendment Rights of Palestinian Solidarity Activists

Delivered to The Israel Lobby and American Policy conference March 24, 2017 at the National Press Club

The Israel Lobby and American Policy conference was solely sponsored by the American Educational Trust, publisher of the Washington Report on Middle East Affairs, and the Institute for Research: Middle Eastern Policy (IRmep). This is a rush transcript.

Dale Sprusansky: As I mentioned earlier, we had one speaker change today, and that is that Columbia Law professor Katherine Franke, who was scheduled to speak, came down with pneumonia. But no need to worry, because we have the wonderful Maria LaHood here to take her place. Maria will be addressing an immensely important topic. As many of you know, there has recently been a rash of anti-BDS legislation introduced and passed at both the state and federal levels. These anti-BDS bills have raised concerns about the First Amendment rights of Palestinian solidarity activists. They have also kept the lives of lawyers such as Maria very busy.

Maria is deputy legal director at the Center for Constitutional Rights. She has worked tirelessly to defend the rights of those who face legal pushback for challenging Israel’s policies. She has defended Olympia Food Co-op board members for boycotting Israeli goods, represented Prof. Steven Salaita, who was terminated from a tenured position for tweets critical of Israel. She also works closely with Palestine Legal to support students whose speech is being suppressed for their Palestinian advocacy.

For those of you who were here last year, you will remember her brilliant overview of the challenges faced by Palestinian advocates on campus. This year she will be discussing the recent legislation that threatens First Amendment rights of Palestinian activists, and the legal challenges thereto. We couldn’t be happier to have her with us here today, and are so happy she agreed to join us the last second.

Maria LaHood: Thank you very much. Thanks to IRmep and the American Educational Trust for inviting me to speak. It’s an honor to be here with you all.

Israel has declared that BDS is the biggest threat it faces. As mentioned earlier, it has recently banned BDS supporters from even entering the country. Boycott, divestment and sanctions is a nonviolent, time-honored tactic to demand basic rights, such as equality. Proponents of BDS simply demand that Israel comply with international law. Yet, tens of millions of dollars are being spent to combat BDS; to combat a peaceful means of seeking social change and respect for human rights. Students for Justice in Palestine groups have been active all over the country educating their campuses. This is despite being maligned as uncivil, divisive, anti-Semitic, or supportive of terrorism; despite being investigated and disciplined when they protest; despite the bureaucratic barriers they face when they try to form a club or bring in a speaker to talk about BDS.

Recently the administration of Fordham in New York rejected students’ application to even form an SJP, stating that it was polarizing, and that calling for BDS is a barrier to open dialogue, and claiming that SJP groups at other schools have engaged in misconduct. Each of these reasons violates basic principles of free speech and free association, not to mention the university’s mission to foster intellectual and moral development and open inquiry.

Despite widespread efforts to suppress activism for Palestinian rights, it is on the rise on campuses and off. The U.S. Campaign for Palestinian Rights has a list of 170-plus United States BDS victories. Students have passed divestment resolutions on campuses all over the country. Numerous churches and foundations have divested from companies facilitating the occupation. And the culture and academic boycott continues to grow. Six NFL players recently pulled out of an Israeli-sponsored government trip to Israel.

As we know, when there’s no defense, the tactic of a bully is to silence, malign or intimidate the speaker. According to the Emergency Committee for Israel, which has supported the nationwide anti-BDS legislative effort, legislating against BDS tells its proponents, “while you were doing your campus antics, the grownups were in the state legislatures passing laws that make your cause improbable.” Thus far, 16 states have passed anti-BDS legislation of one form or another. The Israeli Foreign Ministry, in cooperation with the Israel advocacy organizations, is reportedly behind the anti-BDS laws. Several of these laws establish a public blacklist of entities that boycott Israel and prevent the state from investing in them or contracting with them.

The first such law was passed in Illinois in 2015. It blacklists foreign companies that boycott and requires the state’s pension fund to divest from them. Florida and Arizona passed laws to create blacklists of companies and other entities that boycott, and the state is prevented from contracting with them, as well as investing in them. Maryland currently has similar blacklist bills pending which also apply to natural persons and non-governmental organizations, meaning that individuals, churches, foundations, trade unions and other groups could be blacklisted for boycotting or divesting from corporations complicit in Israel’s violations.

The bills are supported by the Jewish Community Relations Council, but there’s a large, well-organized broad-based coalition fighting them, so they’re lingering – and in Maryland, the legislative session ends on April 10. Activists had mobilized against similar bills in New York, so Governor [Andrew] Cuomo bypassed the legislative process, which he called “tedious,” and issued an executive order to create a blacklist of institutions and companies that the state must divest from. Incidentally, the executive order that Governor Cuomo signed was signed on the day of the Celebrate Israel Day parade in New York.

The American Jewish Committee lobbied for the New York law and Governor Cuomo has been named co-chair of AJC’s Governors [United] Against BDS initiative. Thus far, the state blacklists that exist in Illinois, Florida, and New York have only named foreign corporations. Not to say that others couldn’t be added in Florida and New York. Colorado has an anti-BDS list that is completely blank, and Arizona’s list is due out April 1st. So although the blacklist tactic is pure McCarthy, the actual reach thus far is quite limited – but the chill can be much broader. Although New York already has a blacklist, earlier this month the New York State Senate fast-tracked three bills aimed at silencing advocates of Palestinian rights, with no committee hearing and no opportunity for public input or debate, and they passed with overwhelming support.

One bill is like the executive order in New York, but expands the blacklist to include individuals and nonprofits. One bill would prohibit state funding for student organizations at state or city universities, or community colleges, that support BDS campaigns against Israel. The other would take away state funding from colleges that use state aid to fund any academic organization that advocates a boycott of Israel. Several academic institutions have endorsed the call for a boycott of Israeli academic institutions. In 2013, when the American Studies Association did so, legislatures around the country proposed bills similar to this one, but a public outcry prevented them from passing. Companion bills have not yet been introduced in the New York Assembly for these three bills, but we’re on the lookout.

California passed a law requiring prospective contractors to certify under penalty of perjury that they’re not violating state anti-discrimination laws; and, if they have a policy against a foreign nation, that they don’t use it to discriminate. The bills had originally explicitly prohibited contracting with companies that boycott Israel, but because of the mobilization against them and constitutional concerns, they were substantially revised. But the law still names no nation other than Israel and no discrimination other than against Jewish individuals under the “pretext of a constitutionally protected boycott or protest of the state of Israel.”

A few states – Virginia, South Carolina, Massachusetts and Tennessee – as well as Congress, have introduced bills to expand the definition of anti-Semitism to include criticism of Israel for purposes of determining whether someone is discriminated against. These bills adopt the definition of anti-Semitism that’s used by the United States State Department to monitor human rights violations around the world, which describes anti-Semitism relative to Israel as demonizing Israel, applying a double standard to Israel, and delegitimizing Israel.

In South Carolina, the House passed a bill this week requiring colleges and universities to use this anti-Semitism definition in deciding whether their policies are violated, to the praise of the Zionist Organization of America. Activists recently defeated similar Virginia bills which would have amended Virginia’s Human Rights Act to include the definition. The Massachusetts bill was also defeated. These bills are problematic on many levels, including that the distorted definition undermines the fight against true anti-Semitism – not to mention their sole focus on anti-Semitism to the exclusion of other forms of bigotry, such as the rise of Islamaphobia.

In December the United States Senate passed by unanimous consent the Anti-Semitism Awareness Act, which would have required the Department of Education to consider the State Department definition of anti-Semitism in determining whether a university had discriminated in violation of Title VI of the Civil Rights Act of 1964. It died in the House, but it certainly could be introduced again.

There is a current bill in Congress, the Combating BDS Act, supported by AIPAC and introduced by Senator [Marco] Rubio, that attempts to nullify the argument that state anti-BDS laws should be struck down because they’re pre-empted by federal law. But the main argument against these state laws is not that they are pre-empted, but that they violate the First Amendment.

There was also the 2015 Trade Promotion Authority Law, which requires the US government to discourage BDS or trade barriers against Israel in trade negotiations with European Union countries. And who knows what else is coming at the federal level?

Yesterday the Senate confirmed David Friedman as US ambassador to Israel, 52-46. Friedman has taken the position that the US should view BDS as inherently anti-Semitic and take strong measures, both diplomatic and legislative, to thwart it. But for all the anti-BDS bills that have passed, many more have been defeated, showing the power of mobilization: that organizing, and writing and calling, and meeting with your representatives, makes a difference. Legislators have heard concerns that the bills are unconstitutional, but they’ve also heard their constituents’ passionate views about Palestinian rights.

It’s important to remember that none of the anti-BDS laws take away your right to boycott or to advocate for BDS, nor can they under the US Constitution. They do, however, punish expression of a particular viewpoint – BDS against Israel – which is unconstitutional. Under the First Amendment, the government cannot pass a law that abridges our freedom of speech or discriminates based on viewpoint. It cannot regulate our speech based on its content or message. In a case stemming from the boycott of white businesses in Mississippi in the 1960s to demand racial equality, the Supreme Court made clear that nonviolent boycotts to bring about political, social or economic change are protected under the First Amendment. Moreover, the government may not deny a benefit to someone for exercising their constitutional rights.

We must demand that our state and local lawmakers protect our federal right to protest and dissent, and reject these unconstitutional laws. And when they do pass, we must not let them chill our protected speech. But it’s even more critical that we resist the distraction of focusing on our speech rights in the US, and instead use the fact that our legislators are actually talking about BDS against Israel, as an opportunity for us to talk about Palestinian rights and freedom.

We need to defend our right to engage in BDS, but we must demand an end to the occupation, to apartheid, to settlements, to the closure of Gaza, to attacks on human rights defenders in the occupied Palestinian territory who are targeted, arrested, detained, threatened and harassed for peacefully protesting, for seeking justice and accountability. It’s also essential to be uniting struggles. In addition to anti-BDS laws, and in response to recent protests across the United States, a recent wave of anti-protest bills have been introduced in state legislatures which increase fines and impose jail time for protesters. In response to Standing Rock protests, North Dakota introduced bills that would exempt drivers from liability if they injured or killed protesters on a roadway, as long as they didn’t do it intentionally.

We need to keep making connections between struggles. We need to keep making connections between settler colonialism, state violence, and racism in this country and in Israel. The struggle for Palestinian liberation is tied to all struggles against oppression. As Martin Luther King, Jr. said, “Injustice anywhere is a threat to justice everywhere.” He also described the pivotal Montgomery bus boycott against segregation in the US as a refusal to cooperate with an evil system.

All over the world, including in the US, people are increasingly refusing to be complicit in Israel’s violations of international law, and are demanding the same of our government officials. It’s not simply a matter of our right to dissent; it is our moral duty. Cooperation with the occupation, with apartheid, is complicity. BDS helped end apartheid in South Africa, and it will eventually do the same in Israel. The wave of anti-BDS legislation just shows the power of the movement for Palestinian rights has to expose Israel’s violations of international law, and eventually help bring them to an end. Thank you. [APPLAUSE]

Question and Answer

Dale Sprusanky: Thank you very much. One question we have here is, since many of these bills are so very clearly in violation of the First Amendment, why are they still standing, and what is the process to get them taken down, and how long will that take?

Maria LaHood: Well, we have not yet brought a case to challenge them. We are thinking about the most strategic case to bring, but just because they haven’t yet been challenged in court doesn’t mean they’re any less unconstitutional. They are unconstitutional.

Dale Sprusanky: So the people in favor of it, when asked, given these issues with the First Amendment and told about them, how did they respond? What is their defense? How did they argue that it is, in fact, not a violation of First Amendment rights?

Maria LaHood: I think some of the claims are that BDS is inherently anti-Semitic, which it is not. I don’t fully understand the arguments, because it is unconstitutional and it is clearly a violation of free speech. I think it is not so much an argument that it’s constitutional, they are appealing to legislators and arguing that it is a fight against anti-Semitism, which it is not. There are many ways to fight anti-Semitism, and stifling criticism of Israel is not one of them.

Dale Sprusanky: We have a practical question here: What are some ways that the average person can help fight against anti-BDS laws?

Maria LaHood: Well, I think get involved wherever you are. Find out what’s happening in your state and in your county. There are also county bills, or anti-BDS county bills, as well. Find out what you can do. Find out who’s working on them. You can always contact the Center for Constitutional Rights, that’s ccrjustice.org, or Palestine Legal at palestinelegal.org, or whoever is active in your community. Again, talk to your legislators. Educate yourself. Educate them. Fight against them.

Dale Sprusanky: One question here, I guess predicting: Are there any more bills being proposed other than the ones that have been introduced so far that people should be aware of?

Maria LaHood: Yeah. You can actually go to righttoboycott.org, and there’s a map of where laws have been introduced all over the country, and that’s another way you can find out what’s happening in your state, and get involved. There continue to be laws introduced in the legislature, and because there’s this Governors [United] Against BDS initiative, there could also be more executive orders like the one in New York.

Dale Sprusanky: One question here, how do you counter the argument that anti-BDS legislation does not abridge freedom of speech, but only certain areas of conduct?

Maria LaHood: Certain kinds of conduct?

Dale Sprusanky: Yeah.

Maria LaHood: In the case I mentioned out of the 1960s, NAACP vs. Claiborne Hardware, a boycott can be considered more than speech. It is conduct. But that boycott, a nonviolent boycott for social change, is protected by the First Amendment. Perhaps it is possible that there is discriminatory conduct, obviously, that can be precluded by law. But BDS against Israel, in response to the call by Palestinian civil society, which seeks compliance with international law and respect for human rights, is not discriminatory.

Dale Sprusanky: One other question. Have you seen, since these laws have been introduced, any sort of decline in activity, especially among students? You have the Canary Mission and all that stuff. People are wondering if that has had an impact, especially on young people.

Maria LaHood: Unfortunately, there is a chill. People misunderstand the laws. People hear that BDS laws are penalizing BDS or criminalizing BDS. There have been incidents where students have not used school funds to pay for a speaker who supports BDS, because they fear reprisal or they fear defunding. There are concerns among church groups.

In New York, for example, there are church groups who run pre-kindergarten schools that are paid for by the state. So there are concerns that, well, if we endorse BDS or if we’re affiliated with the larger church that engages in BDS, what does this mean for our state funding? There are legitimate concerns. Again, like I said, thus far the blacklists are naming foreign companies only, in part, I think, because of the increased constitutional concerns about limiting the free speech of U.S.-based corporations.

Dale Sprusanky: There’s kind of a technical question here: Legally speaking, is there a difference between BDS action against Israel and BDS action against companies that operate in the West Bank?

Maria LaHood: I personally don’t think so. Some of the laws do expressly include boycotts against Israel and boycotts against Israel-occupied territory. There are distinctions that people make based on settlements, but I believe that there are international law violations across the board, so I personally don’t think there is a difference.

Dale Sprusanky: This involves the law of another country, but I’ll throw it at you and see how comfortable you are answering it. Can you elaborate on the new law that the Israeli Knesset passed that targets BDS activists?

Maria LaHood: I haven’t looked at a translation of the law in Israel. My understanding is that it prevents BDS supporters who need a visa from entering the country. I’ve heard that maybe to get into the West Bank, if you don’t need a visa, perhaps it will not preclude your entry. I do not know, I haven’t looked at it. But the basic thrust of the law is to discourage BDS supporters from going to Israel and to Palestine. This isn’t the only law in Israel. Israel has also passed a tort law that provides for damages from any BDS actions if they can be shown.

They’ve also cracked down on NGOs who get most of their funding from foreign entities, which largely impacts organizations that are fighting Israel’s violations. You’ll hear later about crackdowns on Palestinian rights activism in the UK. France has a law that has criminalized BDS, that will soon be before the European Court of Human Rights. It is part of a global trend to suppress speech and suppress advocacy on behalf of Palestinian rights.

Dale Sprusanky: A question here, a general question: Are Israelis more worried about image or the economic threat of BDS?

Maria LaHood: Yeah, I don’t know what Israelis are more worried about. I think at this point, where we are in this movement, is that the economic threat is not yet so serious, but the delegitimization threat is huge. The isolation threat is huge. The notion of a pariah state is, I think, what is the threat. Sort of dismantling the international support for Israel, especially the United States support for Israel, is key. I think at some point the economic concerns may become more serious, but right now it is the fact that it is calling out Israel’s violations.

You mentioned that I represent former board members of the Olympia Food Co-op, a tiny little – 22,000 members – co-op in Olympia, Washington, where Rachel Corrie was from, [that] boycotted Israeli goods and took nine or so things off the shelves from Israel, and they were sued for that. So it’s not about the economic impact. It’s about what it says about Israel.

Dale Sprusanky: A question concerning a local issue here: Maryland state has introduced an anti-BDS bill. We have a very strong team that will be fighting against it. Can you tell us what’s happening next if it passes? I guess some advice for the Maryland contingent here.

Maria LaHood: Well, we’re hoping it doesn’t pass. There are hints that it will not pass based on what’s happened in the legislature, so we will see. But that is one, especially because it includes individuals and nonprofits, that would be very good for a challenge.

Dale Sprusanky: I think we’ve run through a heavy set of questions here. Thank you very much.
Maria LaHood: Thank you. Thank you.