Detecting the ‘free speech’ card as a BDS bluff

Laws are one way to combat BDS.  Opponents assert they violate America’s free speech protections. Their arguments misrepresent what those laws, and free speech, entail.

Free speech Constitution image

Free speech is America’s most zealously guarded freedom. That is appropriate. It is why advocates of all political stripes wrap their arguments in it.

And it is why some can’t resist the temptation to “augment” their case by misappropriating free speech for their side.

When logic, justice, and the law itself are no allies to your argument, invoking this sacred right is an easy refuge to shield a position that falls if left to stand on its own merits.

Over time and multiple issues, some advocates deploy contradictory interpretations of the First Amendment, discarding constitutional consistency for the tactical advantage of pigeonholing free speech to fit their side of today’s debate.

They are channeling Groucho Marx’s protest, “Those are my principles, and if you don’t like them… well, I have others.”

A current example of such a cynical, topsy-turvy application of free speech principles involves efforts to defeat laws limiting the commercial impact of the Boycott, Divestment, and Sanctions (BDS) movement against Israel.

Over the past four years, more than two dozen states have adopted legislation or executive orders aimed at countering BDS. Those statutes, as well as proposed federal legislation, are under assault by a variety of groups for supposedly violating free speech ideals.

Anti-BDS measures (including one the U.S. Senate passed last month 77-23) are natural updates of long-standing laws, none of which have incurred free speech challenges.

Ironically (read: flimflam), some of the loudest critics of today’s anti-BDS laws did not oppose those earlier, precedent-setting bills:

1) Congress’ 1977 Export Administration Act prohibited American companies from refusing business with Israel in exchange for doing business with Arab League countries, and;

2) State laws, beginning in 1978, combating South Africa’s apartheid policies, Sudan’s genocide against non-Arab Darfurians, and Iran’s pursuit of nuclear weapons.

Some critics of today’s anti-BDS laws have conveniently forgotten that they supported these earlier laws. Where was the ACLU to sound the free speech alarm when companies were sanctioned for doing business with South Africa, Iran or Sudan?

If sanctioning corporations doing business with those rogue countries didn’t imperil free speech, how is it suddenly (and only) wrong when those being sanctioned are refusing, for discriminatory, non-commercial reasons, to do business with Israel?

There is a clear, straight line from anti-apartheid sanctions to anti-BDS sanctions.

Those earlier laws didn’t attract lawsuits because they address conduct, not speech, and apply to corporations, not individuals.   Anti-BDS laws also do not infringe on corporate or individual speech. Companies, like people, are free to express any opinion.

Yet neither corporations nor individuals are entitled to unrestrained conduct.

A 2006 unanimous U.S. Supreme Court ruling affirmed the distinction between speech and conduct: the government’s right to deny funding to colleges that bar military recruiters from their campuses was upheld, finding that while the schools’ boycott was politically motivated, it constituted conduct, not free speech.

Thus, corporations are free to both criticize, and, for legitimate commercial reasons, to not do business with Israel. Those are protected choices, immune to anti-BDS laws.

Companies do not however enjoy carte balance protections from discriminatory, political conduct; and they certainly do not have constitutional guarantees to receive contracts or government investment funds. (These limitations apply even more so to foreign companies that are the focus of Illinois’ anti-BDS, Iran and Sudan divestment laws.)

U.S. and foreign companies certainly have their rights. So too do we citizens. We are free, through legislation adopted by our elected officials, to vote not to award BDS companies with lucrative state contracts or investments from state pensions.

Anti-BDS laws are consistent with our nation’s beloved free speech ideals.  They also advance two other noble American traditions: synchronizing governmental investment and contracting policies with our values, and standing beside our valued allies, especially Israel.

Americans are free to speak out against not just our foes but our allies and own country too. We are also free to set the public record straight…correcting the distortions of what free speech means and legislation that both protects free speech and other vital American values while combating the insidious BDS movement.

We are obliged to do so. We are fortunate to do so. We are free to do so.

About the Author
Jay Tcath is Executive Vice President of the Jewish United Fund/Jewish Federation of Metropolitan Chicago.
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