As Israel Apartheid Week sweeps across American college campuses, BDS activists have a new weapon in their media arsenal.
Boycott, a documentary film produced by Julia Bacha of Just Vision, follows two BDS activists and a newspaper editor, as they and their attorneys from the ACLU challenge the anti-BDS laws in federal courts across the United States. These laws, which exist in more than half the states, prohibit state contractors from boycotting Israel or entities that do business with it.
The film’s three heroes – Bahia Amawi, a speech pathologist from Texas; Mikkel Jordahl, a prison attorney from Arizona; and Alan Leveritt, the editor-in-chief of the Arkansas Times all refused to certify that they wouldn’t boycott Israel while under contract with their states and each lost their job or access to state advertising as a result. The film’s basic argument is that the anti-BDS laws violate the First Amendment, subordinating Americans’ free speech rights to the interests of a foreign power.
Major media outlets promote the claims
That narrative is patently false, as my academic work on this subject has shown. But that hasn’t stopped major American media outlets, like Time Magazine, the Washington Post and others, from promoting the film and amplifying its false claims since it became available for streaming, last month.
That is why I agreed to debate representatives from Just Vision and the ACLU at George Washington University during the school’s Apartheid Week in late March. But BDS activists prefer boycott to debate and, unsurprisingly, the event was surreptitiously canceled. Facts, however, cannot be canceled and here are just a few that the film badly distorts:
The legal facts are that the documentary assumes that boycotting is speech for First Amendment purposes but that is false. It is a bedrock principle of American constitutional law that the refusal to enter into an economic transaction, whether to buy or sell something, serve a patron or hire an employee is not by itself speech within the meaning of the First Amendment. That is why states can prohibit bakers from boycotting LGBTQ customers at least with respect to pre-made or off-the-shelf products. It is why the individual mandate of the Affordable Care Act, which requires citizens to purchase health insurance, doesn’t violate the Free Speech clause. And it is why states have regulated boycotts for over 200 years without running afoul of the First Amendment.
Anti-BDS laws fit within this tradition because they target only the act of boycotting, leaving companies free to say whatever they please about Israel, the Palestinians or any other topic. The full Eighth Circuit Court of Appeals made all of that crystal clear in upholding Arkansas’s anti-BDS law against the ACLU’s First Amendment challenge. And in February, the United States Supreme Court declined to review that decision, indicating that the high court felt no compelling need to reverse the lower court or otherwise declare anti-BDS laws unconstitutional.
Why does the film ignore these basic legal points? Maybe because they are profoundly embarrassing to the ACLU, one of the film’s chief protagonists. After forcefully defending antidiscrimination laws against First Amendment challenges across the country, the ACLU has apparently made an exception for the anti-BDS laws and has even gone on the offensive to take them down. That inconsistency is inexplicable. There is no compelling legal reason why the anti-BDS laws, which protect Israelis and Jews, should be treated any differently from other anti-discrimination rules that protect different social groups. So the film strategically ignores the key legal question at the heart of the anti-BDS litigation and it badly undermines its credibility in the process.
Evidence against the film’s narrative
THE HISTORICAL facts show not only does the film lack a coherent legal theory but it also ignores the mountain of historical evidence that undermines its preferred narrative. For example, the documentary begins by highlighting the noblest boycotts in American history, like the Colonial boycotts of the British and the Montgomery bus boycotts against segregation. The film then displays footage from clashes between Palestinians and Israel’s defense forces in an effort to shoehorn anti-Israel activism into alignment with America’s most noble boycott movements.
But what the film fails to mention is that boycotts have been employed for unsavory purposes in America as often as they have been used for good ones. Southern slaveholders during the antebellum period boycotted goods produced by free people of the North, just as white labor unions boycotted Chinese businesses in the early 20th century as part of a racist campaign to exile Asian Americans from the Western United States. BDS fits squarely within this more sinister tradition.
Boycotts against the Jews of Israel began nearly 150 years ago in the 1890s, when the Arab political associations of Mandatory Palestine admonished residents to completely boycott the Jews. In 1933, the Grand Mufti of Jerusalem renewed the call for systematic anti-Jewish boycotts and urged Nazi Germany to do the same. And in 1945, even before Israel had been formally established, the Arab League had already begun its racialized boycott against the Jews of Israel, declaring “Jewish products… manufactured in Palestine… undesirable in the Arab countries.” There is a line between revolution and racism and as a matter of history, boycotts of Israel have consistently crossed it.
The filmmakers take a more sanguine view of BDS. And, of course, that is their prerogative. But the First Amendment protects speech, not boycotts, which means the U.S. Constitution leaves states free to make their own assessments of BDS and to legislate accordingly. And for the past fifty years, American politicians have done exactly that, legislating forcefully at the state and federal levels against boycotts that target Israel.
In 1975, President Gerald Ford criticized the Arab Boycott as anti-Semitic and declared that the United States would not countenance the translation of any foreign prejudice into domestic discrimination against American citizens. Congress heeded the call, passing multiple federal statutes, including the Ribicoff Amendment and the Export Administration Act Amendments, that tax and penalize those who join in the Arab League Boycott of Israel.
When President Jimmy Carter signed the first federal boycott ban into law, he explained that the Arab Boycott of Israel was indeed aimed at Jewish members of our society. Massachusetts Governor Michael Dukakis, a former democratic candidate for president, took the same view, announcing that his state would not stand for this type of blatant discrimination against its Jewish residents and would thus prohibit companies from participating in the Arab Boycott of Israel.
For decades, American lawmakers have waged this bipartisan legislative battle against BDS and its various forebears, on the shared understanding that BDS is discrimination, not constitutionally protected social action. The documentary never mentions this bipartisan, decades-long tradition because it refutes the film’s central claim that anti-BDS laws are unprecedented and unconstitutional. But the historical record is clear: American lawmakers have been regulating boycotts for centuries and anti-BDS laws are nothing new.
Facts about the anti-BDS laws are how the film attempts to compensate for its various legal and historical shortcomings by creating the impression that the anti-BDS laws are applied primarily against unwitting individuals, like schoolteachers and other public servants, whose boycott choices have no discernable impact upon Israel or American Jews. But that is a grievous distortion of reality, which is that the majority of the anti-BDS laws apply only to corporations, they apply only to contracts above a certain dollar value and they are used primarily by governors like Ron Desantis to help prevent major companies from succumbing to BDS pressure campaigns. These practical realities undercut the film’s false narrative, so once again Boycott just ignores them.
Given all the serious errors and omissions in the film, the filmmakers should not be taken seriously when they brazenly accuse state lawmakers of subordinating American constitutional rights to a foreign power. In reality, it’s Bacha and her BDS cadres at Just Vision who are attempting to subordinate the neutral principles of American constitutional law to a fringe political agenda that has shown little regard for neutrality or truth.
Some pictures are worth a thousand words but this film isn’t worth the $5 (NIS 18) streaming fee (especially when you can read “Boycotts: A First Amendment History” for free, https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=4305186). When it comes to Israel, the only thing worth boycotting is Boycott itself.
Josh Halpern, a Washington appellate litigator, is a lecturer and research fellow at Harvard Law School.