Anti-Israel boycotts, divestment and sanctions (BDS) has been infesting our college campuses; and wreaking economic damage on Jewish and Arab workers, and on Jewish businesses, cultural institutions and performers. BDS also defames and assaults the Jewish State's very right to exist. It is critical for the Jewish community and its leaders to support all efforts - including legislative efforts - to defeat the BDS scourge. As Prime Minister Binyamin Netanyahu stated: "The founders of the BDS movement make their goals perfectly clear. They want to see the end of the Jewish state. They're quite explicit about it."
The Zionist Organization of America (ZOA)'s diverse efforts to combat anti-Israel BDS include campus activism, training, education, counter-protests - and formulating and promoting effective state and federal anti-BDS legislation. Shamefully, however, the Anti-Defamation League (ADL) has been attacking needed anti-BDS legislative efforts. In a recent widely-circulated op-ed, ADL National Director Abraham Foxman wrongly declared that anti-BDS laws "strike at the heart of First Amendment-protected free speech."
The ADL also opposed state anti-BDS bills in New York and Maryland, and declined to support the groundbreaking recently-passed Illinois anti-BDS law. It is painful to see that ADL/Foxman have aligned themselves on the side of anti-Israel groups in BDS legislative battles. BDS constitutes improper and illegal conduct and/or defamation that is not protected by the First Amendment of the U.S. Constitution. Moreover, much proposed anti-BDS legislation has nothing to do with First Amendment issues.
It is Constitutional to outlaw or penalize many behaviors that utilize verbal or other communication (expressive conduct). For instance, although torts such as "interference with contractual relations" are usually committed using words, such tortious activities are not considered to be Constitutionally protected speech or political expression.
BDS is coercive "expressive conduct" that economically harms its victims, including innocent Israeli and Arab workers and companies and their trading partners. Those who attempt to destroy the State of Israel through economic coercion are committing a host of violations. It is constitutional to prohibit or penalize "expressive conduct" when (as here) the prohibition furthers an important or substantial government interest unrelated to the alleged suppression of free expression. Governments have a strong interest in protecting innocent parties from the unjustified economic harm caused by BDS.
BDS also coerces and interferes with the First Amendment rights of association and free speech of BDS targets and others, including the right to collaborate with and communicate with Israeli Jewish artists and academics; the right to do business with and employ Israeli Jews; employment rights of Arabs working for Israeli-owned companies; the right to perform and the right to attend Israeli Jewish performers' concerts; and the right invest in Israeli companies. The ADL website's description of BDS notes that BDS groups "regularly lobby multinational companies, churches, universities, actors, academics and private individuals to cut ties with Israel or refuse to engage in collaboration with Israelis." Laws prohibiting similar sorts of coercion have frequently been upheld.
Further, free speech rights are not absolute. Longstanding constitutional laws make speakers responsible for their damaging words. Defamation and slander are speech. Yet, persons injured by libelous defamatory and slanderous statements have the right to sue and recover compensation for the damage that the defamation caused to them. Directing someone to commit a crime is speech. Yet, persons who instruct others to engage in criminal activity may be guilty of conspiracy, or in many instances, may be guilty of the crime itself.
BDS defames Israel and Israeli companies and performers, by promoting factual distortions and outright lies about them. Victims of BDS libels need and should have legal protection and redress, including the right to sue those who are economically harming them and seeking their destruction.
Moreover, much recent BDS legislation has virtually nothing to do with free speech. The new Illinois anti-BDS law requires Illinois' state-funded retirement (pension) systems to make their best efforts to identify companies that boycott Israel, and under certain circumstances, to divest the pension funds from their holdings in those boycotters. In other words, the Illinois law targets companies that actually boycott Israel - and mentions nothing about groups that only speak about or advocate boycotts. The unanimous recent Tennessee resolution merely denounced BDS.
The resolution declared, among other things, that BDS against Israel and the territories Israel controls is "one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state," and is "inherently antithetical and deeply damaging to the causes of peace, justice, equality, democracy and human rights for all the peoples in the Middle East."
Further, the Israeli Supreme Court recently upheld Israel's anti-boycott law in a lengthy well-reasoned opinion. Israel's highest court accurately described BDS as "political terrorism," explained that BDS is not regular free speech, and held that it is appropriate to penalize boycotters, including boycotters who "only" target eastern Jerusalem and Judea/Samaria. The high court properly recognized that these so-called "targeted" boycotts in fact delegitimize and damage all of Israel.
The most recent winner of the Israel Prize for Literature, Erez Biton, spoke out against BDS in his prize acceptance speech, saying that "we must all stand together in order to rebuff" BDS. The ADL should reconsider its position, and work together with us on all aspects of the battle to defeat anti-Semitic, anti-Israel BDS.
Morton A. Klein is the National President of the Zionist Organization of America. Elizabeth Berney, Esq. is the ZOA Director of Special Projects. Cliff Reiders, Esq. is a ZOA National Board member and partner at the Rieders, Travis, Humphrey, Waters & Dohrmann law firm.