A bipartisan supermajority in the Senate is poised to pass the Combating B.D.S. Act on Tuesday. Yet a few of my colleagues — some on the Senate floor and one in an Iowa airport — recently echoed false claims made by anti-Israel activists and others that the bill violates Americans’ First Amendment rights.
That line of argument is not only wrong but also provides cover for supporters of the Boycott, Divestment and Sanctions movement, who embrace an international campaign of discriminatory economic warfare against Israel, a fellow democracy and America’s strongest ally in the Middle East.
Some proponents of B.D.S. claim — and perhaps even believe — that it is a movement meant to put pressure on Israel to end its occupation of the West Bank. But a cursory look at the public statements of B.D.S. leaders and key advocates show that this is nonsense. The goal of the movement is to eliminate any Jewish state between the Jordan River and the Mediterranean Sea.
In a high-profile case in 2014, the B.D.S. movement drove the Israeli company SodaStream from the West Bank. Five hundred Palestinian employees were left jobless by the move. Then, when SodaStream set up shop in the Israeli Negev Desert, B.D.S. proponents urged boycotting the company because they see nowhere within modern Israel that was not once Arab land.
SodaStream is just one of many examples. At a time when anti-Israel boycotts are popping up around the country and internationally, allies of Israel need to find new ways to defend against the evolving threat of economic warfare. That’s why, since 2015, more than 25 states, including Florida, have adopted laws or issued executive orders to divest from or prohibit contracts with companies that wage discriminatory economic warfare against Israel.
B.D.S. supporters are challenging these state laws in federal court, arguing essentially that private companies have a fundamental right under the First Amendment to government contracts or to investment by public-sector pensions in their company stock.
The problem is that there are no such rights. While the First Amendment protects the right of individuals to free speech, it does not protect the right of entities to engage in discriminatory conduct. Moreover, state governments have the right to set contracting and investment policies, including policies that exclude companies engaged in discriminatory commercial- or investment-related conduct targeting Israel.
Enter the Combating B.D.S. Act, a bill that Democratic Senator Joe Manchin and I introduced to protect the right of states to do just that. It is now included in the Strengthening America’s Security in the Middle East Act (S. 1) that’s currently on the Senate floor.
We expect it to pass with overwhelming support from both Republicans and Democrats, but given the misleading arguments and amount of misinformation being spread by opponents of the bill, it is worth clarifying what the bill does.