As support for Palestinian human rights continues to grow across the United States, opponents of Palestinian human rights who are losing control of the narrative have turned to statehouses in hopes of using repression to blunt a social movement in ascendancy.
Maryland has been a particular focal point in this struggle. For the third time now, legislators are considering a bill aimed at chilling the speech of those involved in the Boycott, Divestment, and Sanctions (BDS) movement. Both previous attempts have been thwarted by popular mobilizations consisting of BDS proponents, civil liberties, peace, human rights, and faith groups.
The bills in question, SB739/HB949, would deny pension fund investment or state contracts to individuals, non-government organizations, or businesses that boycott Israel or "Israeli-controlled territory," i.e. the Occupied Palestinian territory and Israel's illegal colonies within. The broad nature of the bill, in that it would apply not just to businesses, but individuals and NGOs, is particularly chilling. A number of churches, trade unions, and other civil society organizations have endorsed some type of boycott of Israel or its illegal settlements in the West Bank and East Jerusalem.
To accomplish its ends, the bill, if enacted, would task the Board of Trustees for the State Retirement and Pension System with setting up a blacklist. Using publicly available information the board then would publish the names of online individuals, NGOs, and business that boycott Israel or its illegal settlements. This is reminiscent of the worst practices of the McCarthy era. It is also not difficult to imagine how such a blacklist would chill speech well beyond those who just hope to receive contracts from the state or be invested in by its pension fund. In fact, this is the intent of the bill. Its chief sponsor Sen. Bobby Zirkin (D-District 11), was quoted in the Baltimore Jewish Times saying, "I just want to ensure that this ridiculous messenger movement against Israel never sees the light of day in our state."
The bill is flagrantly unconstitutional. As soon as Maryland General Assembly members announced their intent to pursue such a bill, the Bill of Rights Defense Committee/Defending Dissent Foundation and Montgomery County Civil Rights Coalition sent a lengthy letter to every single member of the General Assembly explaining how anti-boycott bills run afoul of the Constitution. Once the bill was introduced, these two groups were joined by the Center for Constitutional Rights, Maryland National Lawyers Guild, and Palestine Legal in sending a second letter outlining how SB739/HB949 violates the First Amendment.
The Supreme Court has ruled that a boycott for political, economic, or social change is political speech protected by the First Amendment. A law that is not viewpoint-neutral, i.e. discriminates against a particular point of view, violates the First Amendment. Furthermore, under the "unconstitutional conditions doctrine" the Supreme Court has held that the state cannot condition receipt of a public benefit on exercise of a constitutional right. The Supreme Court has reasoned that denying individuals a public benefit based on their speech is no less coercive than if the state were to fine them for their speech. This doctrine has been used to find that public employees have free speech rights and later that independent contractors had the same free speech rights as public contractors.
The BDS movement is a response to the 2005 statement "Palestinian Civil Society Calls for Boycott, Divestment and Sanctions against Israel Until it Complies with International Law and Universal Principles of Human Rights." The call, as it is commonly referred to, was issued on the one-year anniversary of the International Court of Justice's opinion that Israel's wall built in the Occupied West Bank was illegal under international law. As the call noted, in spite of this historic ruling, Israel continued "construction of the colonial Wall with total disregard to the Court's decision."
It was not just the wall where the international community failed to apply meaningful sanctions to Israel. On a wide range of issues, Israel continuously violated the Palestinians' human rights with impunity, as no government seemed seriously interested in holding them accountable. The call reasoned that based on the failure of governments to stand for justice for Palestinian people, it was up to civil society and people of conscience to act. The call proposed, as method for holding Israel accountable, that broad-based boycotts, similar to those imposed against Apartheid South Africa, be imposed until Israel complies with the following demands:
These demands, rooted in international human rights law, are clearly demands for political change. As such, there is little question that legislation like that being proposed in Maryland clearly violates the First Amendment.
International boycotts like BDS have a rich history of success. The African National Congress and the Worker's United Center of Chile issued calls for boycotts of Apartheid South Africa and the military junta of General Augusto Pinochet in Chile. Such boycotts helped to build solidarity with activists directly facing repressive regimes with supporters the world over. While an individual's refusal to buy South African or Chilean produce did not topple a regime, boycotts helped to build the type of solidarity that is needed to build mass movements. These boycotts become the nexus point for organizing in a wide range of civil society groups, including student groups, churches, and labor unions.
Much like the South African or Chilean boycotts, the BDS call stems directly from those impacted by repressive policies. In this case, it is the Palestinian people who have lived through Israel's policies of apartheid, colonialism, and ethnic cleansing who are calling for boycotts of their oppressor. Israel continues to engage in a brutal military occupation, complete with rapacious colonization of the West Bank and East Jerusalem and a strangling blockade that has reduced Gaza-- one of the most densely populated areas on the planet due to that fact that half of its residents are refugees â€“ to an open-air prison. In a policy Israel dubs "mowing the lawn," it periodically and mercilessly bombs the trapped residents of Gaza. It is, as the call points out, not just within the occupied territories where Palestinians are deprived of basic human rights. There are 50 laws that discriminate against Palestinians with Israeli citizenship. While there are Palestinians with Israeli citizenship who are members of the Israeli Knesset, they are frequently dragged away from the podium when they denounce Israeli war crimes. A new law seeks to empower the Knesset to silence these members for good. In addition to Israel's military occupation of the Palestinian territories and discrimination against its own citizens, there are also over five million Palestinian refugees who are still currently denied the right to return to their homes. BDS seeks to address the oppression of all three sectors of the Palestinian population: those who live in the occupied territory under Israeli military rule and are not granted Israeli citizenship even though they subjected to Israeli rule; those who live with Israel's "1967 borders" and have citizenship, but face discrimination; and those who are refugees.
Since 2005, BDS has helped the global Palestinian solidarity movement grow. Student governments, churches, trade unions, and academic associations have all debated and endorsed some degree of boycotts against Israel or its illegal settlements. Support for Palestinians is gaining ground. It is for this reasons that opponents of Palestinian human rights are fearful of BDS. The Israeli government has gone so far as to label BDS a "strategic threat."
Maryland lawmakers should not violate the free speech rights of their residents in order to continue a culture of impunity for violating Palestinian human rights. Maryland's first anti-BDS bill had enough co-sponsors that it should they have all voted in favor of the bill it would have passed. Yet, thanks to popular mobilization a number of co-sponsors, pledged to vote against the bill, and it died in committee. Last session, activists began to mobilize before an announced anti-BDS had even been introduced. As a result, a number of prominent leaders in the Maryland General Assembly announced publicly that such a bill would be dead on arrival and it was never introduced.
This bill can be defeated, as well. Public hearings will be held on the bill on February 28 at the House Health and Government Operations Committee and on March 1 at the Senate Budget and Taxation Committee.