The Limits of ‘Free Speech’

BDS is alive and well — in the U.S. district court in Loredo, Texas.

That’s where Judge Andrew Hanen took the side of the BDS (boycott, divestment, and sanctions) movement, ruling that Rasmy Hassouna, the owner of A&R Engineering and Testing, does not have to sign a pledge not to engage in the boycott of Israel in order to continue doing business with the city of Houston.

Judge Hanen wrote in his opinion last Friday: “The speech contemplated by [Rasmy’s company] may make some individuals — especially those who identify with Israel — uncomfortable, anxious or even angry. Nevertheless, speech — even speech that upsets other segments of the population — is protected by the First Amendment unless it escalates into violence and misconduct.”

The judge is right in saying that BDS makes us uncomfortable, anxious or even angry. Those emotions are fully appropriate in response to an organization that promotes a boycott that is the centerpiece of its campaign to destroy the state of Israel.

He is also right in saying that those emotions alone would not justify laws that prevent a state or municipality from investing in or doing business with companies that follow the BDS line.

However, as demonstrated by the anti-BDS laws currently on the books in 33 states including Texas, and the Senate’s 2019 Combatting BDS Act that clarifies that federal law does not preempt them, the BDS claim to protection of the First Amendment is of dubious legitimacy.

That it is an antisemitic hate group is undeniable, no matter what its advocates claim about Palestinian and human rights. Its rejection of the two-state solution and support for an unrestricted Palestinian “right of return” (which would add to the 45 or so already-existing Muslim-majority states) is effectively a call for Israel’s destruction.

At least one BDS leader, As’ad Abukhalil, was candid enough to say so: “The real aim of BDS is to bring down the state of Israel. … Justice and freedom for Palestinians are incompatible with the existence of the state of Israel.”

For the most part, though, supporters of BDS deny the charge of antisemitism. Officially, BDS describes itself on its website as “an inclusive, anti-racist human rights movement that is opposed on principle to all forms of discrimination, including antisemitism and Islamophobia.”

Anyone even superficially acquainted with the movement knows how false that claim is. Despite the moral posturing, BDS shows no concern whatever for the blatant and massive human rights violations in China, Myanmar, Syria, Cuba and other countries. The only crimes against humanity that concern it are those alleged “crimes” of Israel against the Palestinians (usually committed in the course of defending itself against the terrorists of Hamas and Islamic Jihad). As one commentator put it, they show “a strange, selective animus” toward the state of Israel.

That animus manifests itself as well in the frequent employment of antisemitic rhetoric and narratives designed to demonize Israel. The mask of political correctness falls so often, it requires a willing suspension of disbelief, or blatant mendacity, to deny it’s antisemitism.

But what of the First Amendment? Aren’t good liberals and upholders of the Constitution pledged to fight for the right to free speech even for neo-Nazis? As in the Voltairean dictum (actually penned by the historian S. G. Tallentyre as a paraphrasing of the French philosopher): “I disapprove of what you say, but I will defend to the death your right to say it” — no matter how loathsome the things you’re saying?

The legal opponents of BDS answer that the very broad banner of free speech is not broad enough to cover every loathsome opinion. Among them are Agudas Yisrael, the nonprofit StandWithUs, Israel Allies Foundation (IAF) and Israel’s Ministry of Strategic Affairs (since merged into the Foreign Ministry).

As Agudas Yisrael put it in an amicus curiae brief in an Arkansas BDS case in 2018: “The Supreme Court has long held that rights protected by the First Amendment are not absolute. Instead, they must at times give way to sufficiently compelling state interests, specifically including the state’s interest in eradicating discrimination … just as surely as would be a boycott against products produced by women or racial minorities.”

In other words, as long as other anti-hate laws are considered constitutional despite free speech protections, so should anti-BDS laws.

The reality that also cannot be avoided is that the anti-Jewish attitudes of BDS spill over from hateful speech into hateful acts. Jewish college students in particular have been subject to harassment and intimidation at the hands of BDS activists.

The inciteful nature of BDS propaganda is such that it is difficult to isolate as mere benign speech. Rather, it is a potent enabler of antisemitism; that it so often leads to acts of hate is not accidental. That, too, is why it has incurred the bans of a majority of state legislatures.

The judge in Texas is not alone in his view of the matter. Last March, for example, the U.S. Court of Appeals for the Eighth Circuit struck down the anti-BDS law in Arkansas. The Council on American-Islamic Relations (CAIR) and the American Civil Liberties Union (ACLU), among others, have hailed these rulings. As such, we can anticipate that litigation to overturn the anti-BDS laws will continue for years to come.

As long as other anti-hate and anti-discrimination laws remain legal, anti-BDS laws deserve the same protection, and anti-Israel antisemitism deserves the obloquy and active opposition of the Jewish community and its friends everywhere.

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