THE ISRAEL LOBBY & AMERICAN POLICY CONFERENCE 2019
Dale
Sprusansky:
All right. Thank
you for being patient with us.
We’re having a break after this next panelist speaks.
So I ask you to please remain seated as we continue along
with this morning’s program.
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.
Recent
Legislation that Threatens First Amendment Rights of Palestinian
Solidary Activists and the Legal Challenges Thereto
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 U.S. 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 U.S. ambassador to
Israel, 52-46. Friedman
has taken the position that the U.S. 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
U.S. 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 U.S., 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 U.S. as a refusal to cooperate with an evil
system.
All over the world, including in the U.S., 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.