Anti-BDS Laws in the US: A Balancing Act between State Powers and Fundamental Rights

Introduction

On April 9, 2019, Airbnb reversed its decision to delist offers located in Israeli settlements in the West Bank, following legal challenges in the US. On December 18, 2023, the US vetoed UN Security Council resolutions critical of Israel for the 45^th time. On April 18, 2024 – 108 students were arrested on Columbia University grounds for protesting against the ongoing genocide in Gaza. On May 23, 2024, US President Joe Biden declared that the US does not recognize the International Criminal Court’s jurisdiction after the lead prosecutor requested arrest warrants for Israeli leaders. On July 24, 2024,  Israeli Prime Minister Benjamin Netanyahu addressed the American Congress in person. On August 6, 2024, progressive Squad Democrat Cori Bush lost the Congress primary election after millions of dollars coming from pro-Israeli groups backed the opponent’s campaign, making it the second most expensive House primary in American history. And the list goes on.

From diplomatic shielding of Israel on the global stage to suppressing student protests and leveraging heavy lobbying at state and federal levels, it has become increasingly difficult for people in the US to stand against the practices of the Israeli state. This challenge extends to legal restrictions on private businesses. In the US, criticizing Israel or engaging in boycotting activities against it has become exceedingly difficult.

BDS Movement: Origins and Goals

Inspired by South African anti-apartheid movements, the Boycott, Divestment, Sanctions (BDS) movement is a non-violent Palestinian-led initiative for freedom, justice, and equality for the upholding of Palestinian rights. Founded in 2005, the BDS movement’s call for action focuses on pressuring Israel into complying with and upholding international law, in light of state-led settler colonialism, apartheid policies, and the occupation of the West Bank. The movement focuses on three axes:

• Boycotts of entities supporting the Israeli regime or complicit in the violation of Palestinian rights.
• Divestment campaigns urging institutions such as pension funds, banks, and universities to withdraw investments from the state of Israel as well as companies, both national and international, supporting these state practices.
• Sanction campaigns to pressure states into adopting policies such as the banning of businesses operating in illegal Israel settlements, the end of military trade or commercial agreements such as the ones promoting free trade, and the suspension of the state of Israel in international bodies such as FIFA and the UN.

Through these means of action, the BDS movement aims to pressure the state of Israel into ending the occupation and colonization of the West Bank (including East Jerusalem), Syrian Golan Heights, and Gaza, into recognizing the fundamental equal rights of Arab-Palestinian citizens of Israel, and into upholding the right to return of Palestinian refugees as cited by UN Resolution 194.

The Rise of Anti-BDS Laws in the US

As of today, nearly 100 anti-BDS laws exist across the United States, enacted by individual states through binding or non-binding resolutions. Out of the fifty states composing the country, as little as five states have clear anti-BDS laws, namely Delaware, Hawaii, Oregon, Vermont, and Washington. Another five states — Connecticut, Maine, Massachusetts, Montana, and Wyoming — have also no active anti-BDS laws, as all previously established ones were defeated through appeal.

Anti-BDS laws in the United States mainly focus on the business sector, as most of the legislation involving state funding requires a written confirmation from the business stating that it is not currently engaging in and will not engage in the future in any form of targeted boycotts against the state of Israel or businesses/individuals operating in the state of Israel. Many of the states also operate based on blacklisting, tracking businesses unable to provide a certification asserting the absence of any boycotting activities against the state of Israel. Aside from the business sector application, American anti-BDS laws also tackle institutional freedom of divesting and boycotting, particularly so in the case of universities, suspending funding in specific cases where members of the institution visit other universities known for their pro-Palestinian activism and divestment. The exhaustive list of binding and non-binding anti-BDS legislation is visible below in Figure 1.

Legal Challenges and the First Amendment

The First Amendment to the American Constitution protects the freedom of speech of its constituents, stating that Congress shall make no law […] abridging the freedom of speech […] or the right of the people peaceably to assemble.” Yet, considering the number of anti-BDS laws present nationwide, as well as the number of students arrested for protesting across campuses (refer to Figure 2), one can only wonder about the extent of protection the very First Amendment provides to its citizens when it comes to speaking out for Palestinian rights. The Arkansas legal case illustrates particularly well the divide between the public and legal institutions, specifically the Supreme Court in this case.

The Arkansas case started in 2018, initiated by The Arkansas Times and the American Civil Liberties Union (ACLU) over the state’s anti-BDS laws, asserting that the state refused an advertising contract for not signing a written certification pledging against boycotts of Israel. While it was first dismissed by a district court, a three-judge appeals panel ruled that the law violated the First Amendment. The case did not end there, however; in June 2022, the full Eighth Circuit Court overturned the previous panel’s decision, causing the ACLU to ask for a review of the case by the Supreme Court, which eventually refused to take up the case, declaring that political boycotts are not “expressive conduct” but rather economic activity. This particular case is not an isolated situation, raising effectively the question of how well the Supreme Court is protecting fundamental rights, with several lawyers and political figures raising concerns.

The Political Relevance of Anti-BDS Laws

How relevant are anti-BDS laws on the American political stage today? Very relevant, and more than ever sought after. With the presidential campaign election in full swing, issues and discussions tied to the Palestinian struggle are very much current. The Anti-BDS Labelling Act H.R. 5179 was passed just days ago (on September 19, 2024) by the US House of Representatives as a non-binding resolution, to be then passed by the Senate in a week. Introduced in 2020 by then-Secretary of State Mike Pompeo, this Trump-era bill primarily focuses on trade labelling, hence codifying further traded products based on the “Country of Origin Marking of Products from the West Bank and Gaza.” Arguing that American law requires accurate labelling, the resolution aligns with the Department of State’s guidance, highlighting that Gaza and West Bank are “politically and administratively separate” and thus shouldn’t be labelled as a unit, and that, moreover, “Israel continues to exercise relevant authority in areas of the West Bank.” Based on this, the US Customs Border Protection (CBP) notified that goods made in the territories of the West Bank under Israeli authority would therefore be marked as “Product of Israel”, “Made in Israel”, and “Israel”, thus effectively disregarding that Israeli settlements located in the West Bank are unlawful, based on the International Court of Justice’s ruling, and preventing consumers from distinguishing these products. The act further prohibits reversing or altering the rule through the use of federal funds.

This kind of resolution is far from being unanimous worldwide and has led to legal debates in Europe. The Grand Chamber of the Court of Justice of the European Union ruled in 2019 that foodstuffs originating from Palestinian territories occupied by Israel since 1967 had to include the territory origine and must additionally specify if these are coming from Israeli settlements within that territory. Based on the Court’s ruling, Member States of the European Union are thus under the obligation to label the foodstuff as originating from “occupied territory” and “Israeli settlement,” when applicable, being a binding source of  EU law.

Implications of Anti-BDS Legislation

Anti-BDS laws and constitutional rights? State laws requiring contractors to certify they are not engaged in any boycotts against Israel have been and are still raising questions, and legal challenges, on the right that one has to boycott and exercise its right to freedom of expression. The First Amendment states that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” However, in 2019, there was yet another case of a federal court, this time in Texas, blocking state laws requesting contractors to issue certifications of non-boycott of Israeli-tied entities. United States District Judge Robert Pitman then declared that the law “threatens to suppress unpopular ideas” and “manipulate the public debate through coercion rather than persuasion,” reiterating that “no amount of narrowing its application will cure its constitutional infirmity.”

Conclusion.

Despite some success stories where federal courts have blocked legislation deemed too extensive and infringing on First Amendment rights, these remain exceptions rather than the rule, considering the number of anti-BDS laws implemented across the nation. In some cases, the Supreme Court further refused to rule. More than that, when looking into a state’s history of anti-BDS laws, it becomes clear that defeated laws from a legal standpoint are generally rephrased and slightly modified to be passed again and implemented. One should be free to express their views through political boycotts without being threatened with losing a contract.

Figure 1

Figure 2