The Harm Principle and BDS

In his book, On Liberty, philosopher John Stuart Mill explains that censorship is the enemy of a society. Mill argues that the only way for one to create a full and complete argument is to consider, engage, and explore arguments which are in dissent to your own. If your preconceived assertion is truly robust, Mill claims, it can more than likely stand up to critical scrutiny. If, following an engaging exchange of ideas, your initial arguments cannot stand up to the dissenting argument, you must either discard your argument entirely or simply refine your case with the new ideas into a new, more complete argument. This is called progress. Otherwise, we are left clutching to empty ideas pretending they are full while we drown in our own echo chambers.

This concept is derived from Mill’s “Harm Principle”. The Harm Principle says that a government must allow an individual in society to act in any way he/she chooses to, so long as that individual does not harm anyone in the process. The best way to understand this principle is to say that one’s freedom to swing their fist ends at the tip of another person’s nose. In other words, I can do or say whatever I want, so long as my actions or words do not cause harm to anyone or anything else around me.

In the spirit of Mill-ianism and progress, criticism of Israel is healthy and should certainly not be silenced. I love nothing more than engaging in a healthy debate with someone who has very different viewpoints from my own, what I would consider as “overly critical of Israel”. But once these words go beyond healthy dialogue, non-violent protests, etc., and are turned into harmful actions, the government can choose to intervene if they see fit. The Boycott, Divestment, and Sanctions (BDS) movement against Israel (a movement which, in my view, is immoral and illegitimate but that is a topic for another day) goes beyond expressions of criticism of Israel; it is an explicitly stated attempt to cause actual harm to Israel. As such, a government has the right and the ability to decide if it wants to prevent such harmful actions.

Many states across the United States have passed anti-BDS legislations that prohibit the state from conducting business with companies that boycott Israel in a discriminatory fashion. This has caused many proponents of BDS to claim that such legislation prohibits First Amendment free speech, specifically political speech of businesses protected in the case of Citizens United v. FEC. Such claims are, in fact, incorrect; the First Amendment protects speech, not conduct. In parallel to Mill’s On Liberty, the state or federal government cannot censor speech, but, if it chooses to do so, it can intervene to prohibit harmful actions it views as improper and affecting someone or something other than the initiator of the action.

In 2006, in the case of Rumsfeld v. FAIR, the Supreme Court unanimously ruled that Congress had the right to withhold federal funding from universities that did not allow U.S. military recruiters the same access to students that other employers are given. The universities which acted in this way claimed that this violated their right to free speech by not allowing them to express their lack of support for the military. In its ruling, however, the Supreme Court stated that Congress was regulating conduct, not preventing the universities from their free speech, and therefore was not violating the First Amendment. The universities can act however they want or say whatever they want, but they cannot expect there to be no negative repercussions if such behavior is viewed as affecting others in an inappropriate and out-of-place manner.

Whether you approve of the government action or not is your own personal sentiment, but this type of government intervention is not unconstitutional. One may agree or disagree with a policy taken by the government, such as raising or lowering taxes, but the government is nonetheless able to do so because such policies do not infringe on free speech. The government is not saying that you cannot advocate for lower or higher taxes, but if you do not pay the amount in taxes required by the law according to that government’s policy at that time, there will be a penalty.

Last September, California passed an anti-BDS bill like those passed in other state legislatures. The California bill, similar to the many other anti-BDS legislations, prevents the state of California from doing business with companies engaged in discriminatory boycotting (i.e. boycotting a country for an occupation but not boycotting other occupying countries) against any sovereign state, namely Israel. The legislation does not prevent freely expressing critical views of Israel or any other country, nor does it prevent boycotting or sanctioning Israel or any other country — boycotts are often effective diplomacy tools utilized by the U.S. and California. Rather it creates consequences for discriminatory boycotts which California and other states view as harmful actions and out of line with their policies. Clearly, more and more states are viewing BDS and boycotting of Israel as just that: harmful and out of line. Critics of Israel who engage in BDS must be prepared to face these consequences. As we say in Israel, you cannot keep your shakshuka and eat it too.

BDS is not an expression of speech; it is an action. Therefore, anti-BDS bills do not violate free speech.

You can and should swing your Israel-criticizing fists around all you want, but once your clenched BDS-fist makes contact, the government has the legal ability (and really, the legal responsibility) to intervene.

About the Author
Tal Edelstein was born and raised in Tivon, Israel before moving to Los Angeles, California at the age of 12. Tal works for the Hillel at the University of Pennsylvania as the Springboard Ezra Fellow and Israel Engagement Specialist. He graduated from Cal Poly San Luis Obispo, with degrees in Business Finance and Global Politics. He was the Founder and Chairman of the on-campus pro-Israel club, Mustangs United For Israel, as well as the Founder and President of the Mustangs Israel Public Affairs Committee.
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