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“Anti-Israel,” a Camouflage Platform for “Anti-Semitism:” Anti-BDS Legislation is Wholly Constitutional

“Anti-Israel” has become a camouflage platform for expressing antisemitism under a more socially acceptable umbrella.[1][2] There is no “legal” solution to combat antisemitism and all of its ripple effects. Instead, educating the general public with the knowledge necessary to discern antisemitic rumors from reality and passing remedial legislation are important steps to combatting bigotry and hatred.[3]

  1. Antisemitism’s Newest Wave: The BDS Movement

“Antisemitism” is the making of “stereotypical allegations about Jews as such or the power of Jews as a collective—especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.”[4] Additionally, “antisemitism” includes “[h]olding Jews collectively responsible for actions of the state of Israel.”[5]

Anti-Israel is no longer a distinct concept from antisemitism, because the two concepts are so intertwined that they have fused into the same monster.[6] There are narrow instances where anti-Israel sentiment is wholly distinct from antisemitism, but that is limited to legitimate criticisms of Israel’s policies, not rationale grounded in antisemitic notions of Jewish power or influence.[7]

In response to the latest wave of antisemitism, the conduct associated with the “Boycott, Divestment, Sanctions” (“BDS”) movement, numerous state legislatures, are enacting wholly constitutional remedial legislation such as anti-BDS laws.[8] Florida, Illinois, Indiana, Colorado, Tennessee, Arizona, South Carolina, Virginia, New York, Pennsylvania, Georgia, New Jersey, Alabama, Iowa, Kentucky, California, Ohio, Massachusetts, Texas, and Louisiana have passed anti-BDS laws or are in the process of passing such laws. [9]

Pitched as a peaceful movement, “Boycott, Divestment, and Sanctions” (“BDS”), calls for boycotting brands that are Israeli-invented or sold within Israel to destroy Israel’s existence.[10] California Assemblyman Travis Allen cautioned,

BDS poses as a peaceful movement interested in ‘social justice’ for Palestinians. The reality is more sinister: The BDS movement seeks to delegitimize Israel's very identity and existence and ultimately bring about its destruction and replacement with a Palestinian state, which would be dominated by the terrorist group Hamas.[11]

The strongest predictor of campus antisemitism is a local BDS campaign.[12] Omar Barghouti, BDS’ founder, shared, “I clearly do not buy the two state solution… if the refugees were to return, you would not have a two state solution… You’ll have a Palestine next to a Palestine, rather than a Palestine next to Israel.”[13]

Stanley Tate, a founding member of AIPAC and Florida’s Prepaid College Program explained:

Passing state resolutions against BDS is the quickest and most effective way of dealing a deadly blow to this “disease” before it is allowed to metastasize. The movement’s strongest breeding grounds are university campuses, and state legislators carry great weight with the state university faculties and governing boards, which must eradicate BDS from their institutions. Make no mistake — BDS isn’t just about Israel, it is the new form of politically correct anti-Semitism that has led to intimidation and attacks against Jewish students nationwide.[14]

The two concepts, antisemitism and anti-Israel frequently go hand in hand and have become intertwined on many college campuses. During celebratory pre-Hannukah Jewish holiday festivities, Jews were interrupted by protestors’ anti-Israel chants and blocking of hallways at York University in December 2015.[15] Fusing the two concepts of antisemitism and anti-Israel, people defaced bathroom doors with swastikas and drew graffiti “413 feet from the UC Berkeley Hillel house,” a place for students to celebrate Jewish holidays, stating “Death to Israel” and “Kill all the Jews.”[16] Further equating antisemitic hatred for Jews with anti-Israel sentiment, some attempt to justify Palestinian terrorist attacks on “Jews” due to the Palestinian’s disagreement with “Israel’s” actions.[17] By equating “Israel” with “Jews” while conveniently ignoring that Israeli citizens consist of Jews and Arabs, such “justifications” boast:

Young Palestinians do not go out to murder Jews because they are Jews, but because we are their occupiers, their torturers, their jailers, the thieves of their land and water, their exilers, the demolishers of their homes, the blockers of their horizon. Young Palestinians, vengeful and desperate, are willing to lose their lives and cause their families great pain because the enemy they face proves every day that its malice has no limits.[18]

  1. Social Media & News Fueling Antisemitism

Courts cannot adequately address all problems fueled by antisemitic rumors that spiral out of control quickly. On social media, anything can spread at lightning speed, be deemed credible, and incite violence.[19] In response to Facebook calls for imminent violence against Israelis, 20,000 individuals sued Facebook.[20] Resorting to the courts is ineffective because a game of “whack a mole” ensues: when one website vanishes, dozens more emerge with identical agendas.

A Facebook user posted, “I could have annihilated all the Jews in the world, but I left some of them alive so you will know why I was killing them,” yet an Austrian prosecutor ruled that this antisemitic post was merely a legitimate way to criticize Israel.[21]

An anti-Israel post sparked this antisemitic comment:

“Jews are born to create problems, just like they tried to create in Germany. But Hitler cleared all that trash. Likewise same is needed to be done by Palestinians. Eradicate and operate out this Jewish cancer.”[22]

Many images with the hashtags “#Gazaunderattack #Gazaunderfire” that purported to depict atrocities Israel committed in Gaza were subsequently confirmed as recycled photos taken years earlier in Syria and Iraq.[23] News sources rarely acknowledge that since 2007, Hamas determines what, if any, of the funds and materials entering Gaza actually makes it to its residents.[24] Annually, Hamas invests approximately $25,000,000 on terrorism.[25] Hamas confiscates and prevents UN aid from reaching Gaza’s residents.[26] Hamas uses human shields, operates within civilian homes, “prohibits or deters civilians from leaving areas likely to be targeted, and fires rockets from schools, mosques, United Nations facilities, and civilian residences.”[27]

While the media underemphasizes Hamas’ role in Gaza, it frequently distorts headlines covering terrorist attacks on Israelis. A Time headline stated, “Two Palestinians Killed in West Bank After Knife Attack.”[28] That headline infers Palestinian bystanders were killed, likely by Israelis, with knives. The REAL story: two Palestinians stabbed a woman into “severe condition,” and the Israeli army subsequently shot the terrorists.[29] 

France’s Prime Minister Valls equated antisemitism with anti-Israel sentiment, stating: “Anti-semitism, this old European disease . . . [has taken] a new form. It spreads on the Internet, in our popular neighborhoods, with a youth that has lost its points of reference, has no conscience of history, and who hides itself behind a fake anti-Zionism.”[30]

Combining both antisemitism and anti-Israel into the same monster, social media posts circulate dangerous rumors that Israel and the Jews own the media.[31] Harvard Law Professor Alan Dershowitz has explained,

Yes, there are many individual Jews in positions of influence in Hollywood, in network television, in sports and entertainment, and in many other areas of American public life. These individuals, who happen to be Jewish, do not act together in any kind of conspiratorial manner. There is no ‘Jewish control’ of any of these areas — or of the many other areas, such as medicine, law, academia, finance — where there are large numbers of individual Jews in high positions. . . . So let’s stop all this nonsense about Jewish control over the media and praise those individual Jews who, by dint of hard work and talent, have earned their place, as individuals, in so many areas of American life. I always thought that was the American dream.[32]

In response to Stanford allowing for similar antisemitic rumors to circulate and go unaddressed, a Stanford alumni stated:

People who have faced death for the crime of being Jewish will be more than happy to tell you that “Jews run the world” is the oldest trick in the book. It predates the rise of Hitler. It predates the Protocols of the Elders of Zion. As long as Jews have been minorities in the world around them, they have been dealing with this garbage.[33]

The Wall Street Journal reported a study that exposed the harsh truth of antisemitism permeating social media.[34] The individuals conducting the study created two Facebook pages: one Facebook page was anti-Israel and the other Facebook page was anti-Palestine.[35] Both Facebook pages had nearly identical content displayed calling for the destruction of either Israel or Palestine.[36] Both Facebook pages were reported at the same time by the individuals conducting the study to Facebook.[37]

Facebook’s different reactions to the reporting of both Facebook pages revealed just how much antisemitism has permeated social media’s “community standards” of what is and is not discriminatory and dangerous. Facebook decided to only shut down the Facebook page that was anti-Palestine and not the Facebook page that was anti-Israel.[38] Instead of shutting down the anti-Israel Facebook page, Facebook curtly stated that it was “not in violation of Facebook’s rules” yet the same type of remarks on the anti-Palestine page were worthy of shutting the page down with 24 hours for “containing a credible threat of violence” that violated community standards.[39] This experiment, sheds light on the troubling double standard fueled by antisemitism that courts cannot adequately address.

Additionally, this lopsided social media policing occurs on Instagram. A woman posted a photo of herself in front of an Israeli flag and Instagram took down her photo for “violating community standards.”[40] The author of the post was shocked to find out that the post was removed because of the Israeli flag in the background.[41] She shared, “Initially I was extremely upset because I consider the Israeli flag very much a part of my identity as a Jewish Zionist woman. Also, I have reported actual terrorist activity on Instagram… Actual graphic violence and nudity and I get a message back saying my post was reviewed and it doesn't violate the community standards. So I was in disbelief that my photo violated anything.”[42] Once the Anti-Defamation League got involved, Instagram allowed the photo to be reposted days later.[43]

  1. Combatting BDS: Education & Anti-BDS Legislation

Building on the media’s distortions, anti-Israel events which frequently call for BDS boycotts of Israel spread “hateful accusations against Israel, falsely claiming that Israel is guilty of apartheid, ethnic cleansing, genocide, and a number of other war crimes in an effort to demonize Israel by portraying it as the embodiment of the world’s true evils.”[44] Additionally, “[t]hese claims are rarely, if ever, balanced with an acknowledgement of Palestinian terrorism against Israeli civilians, [and] Israel’s continual efforts to make peace with the Palestinians.”[45]

BDS harms the legitimate interests of the general public, businesses, and America’s longstanding ally: Israel.[46] “Israel produces more scientific papers per capita than any other nation and has the highest number of scientists and engineers per capita than any other country in the world.”[47] One in four life science innovations has Israeli roots.[48] BDS seeks to cripple brands affiliated with Israel or that are Israeli invented, yet Israel is at the forefront of technological and medical innovation.[49] BDS’ boycott list includes: Nestle, Motorola, Hewlett-Packard, Starbucks, CocaCola, Sodastream[50], Revlon, Victoria’s Secret, and Proctor & Gamble.[51] Even Disney was boycotted because Epcot’s exhibit acknowledged Jerusalem is Israel’s capital.[52] “Bill Gates observed in 2006 that the “innovation going on in Israel is critical to the future of the technology business.”[53]

In support of anti-BDS legislation, California Assemblyman Travis Allen shared, “it's my conviction that any company that is intentionally inflicting economic harm on the state of Israel is not economically aligned with the values of California's residents and is undeserving of California's financial investments.”[54]

Echoing Assemblyman Allen’s sentiment, Alabama House Speaker Victor Gaston, stated “I am proud to have had a role in the House Rules Committee assisting with the now unanimous passing of this important Resolution. The Boycott, Divestment, and Sanctions movement has no place in the State of Alabama as it harms the United States’ greatest ally and friend to Alabama, Israel.”[55]

Florida Governor Rick Scott explained, “For many generations, Florida and Israel have been close partners and allies. When I was first elected, I led a trade mission to Israel because it is imperative that we further our economic growth between Florida and Israel. . . . This bill ensures the State of Florida will not support those that participate in campaigns fueled by intolerance and anti-Semitism — like the Boycott, Divestment and Sanctions (BDS) movement.”[56]

Antisemitism and its extensions including BDS must be addressed with education and remedial legislation. As a Stanford alumnus noted,

We have to be anti-racist because it is the right thing to do. Because this is our university, and as long as Stanford means something to us, we have to do our part to make sure it embodies the very best of American academic life. Is this really what we want our home to be? A place where it’s OK to make anti-Semitic arguments? A place where it’s OK to turn the clock back to 1903?”[57]

A common misguided “reason” for BDS is that Israel is an apartheid state. Apartheid, “separate development,” occurred in South Africa when laws prevented equal citizenship rights.[58]

“Miss Israel,” an Ethiopian immigrant, shared, “Israel really accepts everybody.”[59]

Israel isn’t an apartheid state.[60] Kenneth Rasalabe Joseph Meshoe, a South African member of Parliament and President of the African Christian Democratic Party stated, “Those who know what real apartheid is, as I know, know that there is nothing in Israel that looks like apartheid. . . . [The] BDS movement is not a democratic movement; they are a movement of intimidation, a movement that performs hatred.”[61]

Approximately 20% of Israel’s citizens are Arabs.[62] Arab unions formed the third largest political party holding seats in Israel’s legislature.[63] Arab Israeli citizens “enjoy the full range of civil and political rights:” the right to politically organize, vote, speak, and publish freely.[64] They “serve as members of Israel’s security forces, are elected to parliament and appointed to the country’s highest courts.”[65] Jerusalem’s Hadassah Hospital treats terrorists and terror victims.[66]

Stanley Tate, a champion of Florida’s Prepaid College Program, wrote an op-ed to the Miami Herald in April 2016 highlighting the antisemitic lies that are being spread to hurt Israel. He explained:

it seems that some people don’t like successful Jews, so a new movement has arisen to destroy the Jewish state and undermine the U.S. economy. This group does not believe in using guns or tanks, but rather disinformation. Their battlegrounds are not on the streets of Jerusalem or Tel Aviv, but rather on the hearts and minds of young impressionable Americans, especially those on university campuses. They seek to boycott, divest and sanction (BDS) the Jewish state into submission by selling a pack of lies to a generation of uneducated youth.[67]

One of the false statements that BDS spreads to support the misstatement that Israel is an apartheid state is that Israel has “Jewish only” roads.[68] This is an entirely false statement. Israel has roads that only Israelis can drive on, but “Israelis” includes both Arabs and Jews. Approximately 20% of Israeli citizens are Arabs.[69]

Although courts cannot adequately address all problems stemming from antisemitism, anti-BDS legislation is a wise and constitutional alternative. In March 2016, Florida passed anti-BDS legislation with almost unanimous bi-partisan support, pledging not to contract with businesses engaging in BDS.[70] Anti-BDS legislation is constitutional.[71] “[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.”[72]

Anti-BDS legislation doesn’t prohibit speech, beliefs, or boycott rights.[73] Businesses can display a “We Hate Israel” banner and not fall within the statute.[74] It bans conduct, like similar federal anti-boycott statutes that are held to be constitutional.[75]

States can define the terms by which they spend funds and can refuse to subsidize discriminatory conduct.[76] The Supreme Court has opined,

The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. [A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.[77]

Northwestern University’s constitutional law Professor Kontorovich explained,

governments can, without any constitutional question, attach conditions relevant to the actual expenditure of funds. A state can reasonably decide that a company that boycotts Israel puts politics ahead of business considerations in a way that makes the company less effective and harms contract performance: For example, a company may fail to use the best subcontractors, products, or partners because of their national origin and thus simply do a worse job. Such a determination is well within the legitimate scope of legislative judgment.[78]

Additionally, refusing to subsidize discriminatory conduct such as BDS is not a “penalty” under a constitutional analysis because there is no constitutional right to such state funds in the first place. “[R]efusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.”[79] The Supreme Court has opined that “We have held in several contexts that a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.”[80] Additionally, the Supreme Court has noted that “Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives.”[81]

Individuals do not have a First Amendment right, nor any constitutional right, to force states to spend taxpayer funds to contract with them. Democratic Senator Felder stated, “The legislation doesn’t prevent anyone from speaking or promoting a boycott, nor from making other vile and prejudicial statements. . . That’s a person’s constitutional right. But they don’t have a constitutional right to be a New York State contractor.”[82]

There are beliefs that the First Amendment protects that states can choose not to fund with taxpayer dollars. For example, the First Amendment protects a person’s right to believe that homosexuality is evil. The First Amendment protects a person’s decision to “boycott” homosexuals. However, as President Obama explained when signing the executive order banning such discrimination in government contracts, “America's federal contracts should not subsidize discrimination.”[83]  Congress enjoys wide discretion when setting spending priorities which can affect some forms of expression and the decision to not fund an activity is constitutional.[84]

Northwestern University’s constitutional law Professor Kontorovich explained that anti-BDS legislation is constitutional:

“[t]he federal government has long used restrictions on contractors as a way to promote various social values. Thus contractors have been required to abstain from a variety of otherwise legal activities, like not practicing affirmative action. And state pension funds have long engaged in “socially conscious” investing, avoiding investing in companies on the basis of their environmental, employment or labor practices.”[85]

BDS conduct isn’t communicative content and is not entitled to First Amendment protection.[86] Northwestern University’s Professor Kontorovich explained that the message of BDS is not in speech or communicative content, but instead requires explanation, which is not cloaked with First Amendment protection. He explained:

Even with Israel boycotts, the act of boycotting itself does not explain its motives, or express any political viewpoint. Companies may boycott Israel to prevent further harassment from the BDS movement; to curry favor with Arab states; or out of mere anti-Semitism; or to protest particular policies of Israel’s. Unless the company explains, its action has no message. That is why the action is not speech, only the explanation.[87]

 Even if BDS conduct is considered expressive, it certainly is not immune from remedial legislation.[88] “Freedom of association plainly presupposes a freedom not to associate.”[89] When expressive activities “produce special harms distinct from their communicative impact” they “are entitled to no constitutional protection.”[90] Alternatively, when contracting, states are market participants and can refuse to subsidize entities without First Amendment infringement.[91]

  1. Conclusion

In short, there is no legal remedy to cure antisemitism and of its all ripple effects. Fortunately, education can curb the frequency that people actually believe and spread antisemitic lies such as “Jews own the media.”[92] Additionally, states can constitutionally refuse to subsidize entities engaging in discriminatory boycotts of Israel with anti-BDS legislation.[93] “[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.”[94]


[1] Many thanks to the following scholars for their guidance: Professor Alan Dershowitz (Harvard Law School), Professor Mark Goldfeder (Emory University School of Law), Professor Eugene Kontorovich (Northwestern University School of Law), Professor Elizabeth Price Foley (Florida International University College of Law), Professor Marci Hamilton (Cardozo School of Law), Professor Elliot Bartky (Indiana University–Purdue University Fort Wayne). The author of this Post, Deedee Bitran, takes sole responsibility for the conclusions reached and is extremely grateful to the aforementioned professors.

[2] See, e.g., http://www.haaretz.com/jewish/the-jewish-thinker/.premium-1.710751 (Referring to the BDS movement and anti-Israel sentiment, and noting that “[t]his form of discrimination is more sophisticated than the coarse anti-Semitism of the past, but that only makes it more dangerous and tougher to prove.”); https://theintercept.com/2016/03/23/university-of-california-adopts-policy-linking-anti-zionism-to-anti-semitism/  (In March 2016, the University of California adopted a policy linking antisemitism to anti-Zionism because “manifestations of anti-Semitism have changed as a result of debates over Israel on college campuses and expressions of anti-Semitism are more coded and difficult to identify. . . .  opposition to Zionism often is expressed in ways that are not simply statements of disagreement over politics and policy, but also assertions of prejudice and intolerance toward Jewish people and culture.”) (internal citations omitted); http://observer.com/2014/10/blurred-lines-anti-semitism-vs-anti-israel/ (“On college campuses, in the press, and among political leaders worldwide, Jews are often targeted by way of denouncing Israel. When Jews raise this concern, maligners regularly argue that they were not being anti-Semitic, but anti-Israel or anti-Zionism.”); http://www.heritagefl.com/story/2016/02/05/news/bds-resolution-battle-co... (At USF, the student government attempted to pass a boycott on Israel resolution and a USF student stated, “My eyes were opened to the terrifying reality that anti-Semitism still exists, when the Senate passed a bill calling on the University to divest from Israel. It was claimed by the sponsors of the resolution that it is not anti-Semitic. How can this be the case when the only country mentioned in the resolution as the sole violator of human rights in the world is Israel?”) (emphasis added).

[3] See generally Rust v. Sullivan, 500 U.S. 173, 193 (1991) (“The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. [A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.”) (internal quotations omitted); http://fiusm.com/2016/03/10/letter-to-the-editor-objectivity-is-necessar... (highlighting the importance of objective journalistic integrity after Ambassador Danon’s visit to FIU was misrepresented in the school newspaper); http://www.camera.org/index.asp?x_context=2&x_outlet=118&x_article=3132 (highlighting various media misrepresentations that characterize terrorist assailants as victims).

[6]See generally http://www.usccr.gov/pubs/050306FRUSCCRRCAS.pdf (The United States Commission on Civil Rights has stated, “Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.”); http://www.thecollegefix.com/post/26626/ (“there is a strong correlation between ‘anti-Zionist’ campus groups (like Students for Justice in Palestine) and antisemitism: 99% of schools with one or more active anti-Zionist groups had one or more incidents of antisemitic activity, whereas only 16% of schools with no active anti-Zionist student group had incidents of overall anti-Semitic activity.”) (internal citations omitted);

[7] For example, claiming that a candidate for public office must speak “kindly” about Israel because “the Jews own every media outlet” is blatant antisemitism– it is expressing antisemitic sentiment grounded in Jewish power while using the concepts of Israel and Jews interchangeably. http://www.state.gov/j/drl/rls/fs/2010/122352.htm (antisemitism: “stereotypical allegations about Jews as such or the power of Jews as a collective—especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.”)

[9] See generally https://www.flsenate.gov/Session/Bill/2016/0086/BillText/er/PDF (Florida passes anti-BDS law: SB 86); http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/52leg/2r/bills/h... (Arizona passes anti-BDS law: HB 2617); https://iga.in.gov/legislative/2016/bills/house/1378 (Indiana passes anti-BDS law: HB 1378); http://www.leg.state.co.us/clics/clics2016a/csl.nsf/fsbillcont3/FFEE6B72... (Colorado passes anti-BDS law: HB 16-1284); http://ilga.gov/legislation/fulltext.asp?DocName=09900SB1761enr&GA=99&Se... (Illinois passes anti-BDS law: SB 1761) ; https://legiscan.com/TN/bill/SJR0170/2015 (Tennessee passes anti-BDS law: SJR 170); https://peacenow.org/WP/wp-content/uploads/State-BDS-and-Settlement-legi... (detailed chart on anti-BDS legislation in different states); http://www.albawaba.com/business/virginia-becomes-seventh-us-state-pass-... (Virginia); http://bjf.org/?p=1281 (Alabama); http://www.jns.org/news-briefs/2015/4/30/indiana-general-assembly-become... (Indiana passed anti-BDS legislation and noted that BDS “represents an attack, not only on Jews, but on the fundamental principles of the United States.”); http://www.jpost.com/Breaking-News/Anti-BDS-bill-passed-in-Arizona-447998 (New York); http://www.njleg.state.nj.us/2016/Bills/S2000/1923_I1.PDF (New Jersey); https://www.legis.iowa.gov/docs/publications/LGI/86/SSB3087.pdf (Iowa); http://www.njleg.state.nj.us/2016/Bills/S2000/1923_I1.PDF (New Jersey); http://www.lrc.ky.gov/record/16RS/HR250.htm (Kentucky); https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA13... (Ohio); http://www.legis.state.tx.us/tlodocs/84R/billtext/html/HR02505I.htm (Texas); http://www.heritagefl.com/story/2015/10/09/news/pennsylvania-senate-pass... (Pennsylvania); http://www.jns.org/news-briefs/2015/4/21/tennessee-general-assembly-beco... (Tennessee); http://unitedwithisrael.org/tennessee-general-assembly-becomes-first-sta... (Tennessee Governor stated BDS is “one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state,’ adding that BDS activities in Tennessee ‘undermine the Jewish people’s right to self-determination, which they are fulfilling in the State of Israel.”); https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/18/illi... (Illinois); http://www.algemeiner.com/2016/03/29/georgia-becomes-latest-us-state-to-... (Georgia); http://www.thetower.org/3114-arizona-law-bars-state-from-contracting-com... (Arizona); http://www.coloradostatesman.com/bill-to-fight-israel-boycott-signed-int... (Colorado); http://www.breitbart.com/california/2016/04/14/anti-bds-bill-passes-cali... (California); http://www.legis.la.gov/legis/BillInfo.aspx?s=16RS&b=HCR57&sbi=y (Louisiana); https://malegislature.gov/Bills/189/House/HD4156 (Massachusetts); http://www.scstatehouse.gov/sess120_2013-2014/prever/4635_20140218.htm (South Carolina); http://www.tabletmag.com/scroll/191437/south-carolina-passes-anti-bds-bill; http://www.virtualjerusalem.com/news.php?Itemid=20625.

[10]See generally http://972mag.com/interview-the-man-behind-the-bds-movement/107771/ (BDS’ founder, Omar Barghouti shared, “a BDS campaign should have a realistic chance of success, beyond simply raising awareness, such as persuading an international company or institution to end support for an Israeli company.”); http://www.israelnationalnews.com/Articles/Article.aspx/18438#.VvXWq-IrLIU; http://www.msnbc.com/all-in/watch/the-bernie-sanders-interview-649590339698 (Bernie Sanders, when referencing BDS, stated, “not to appreciate that there is some level of anti-Semitism around in that would be a mistake.”); http://english.al-akhbar.com/node/4289 (A BDS advocate and professor at California State University shared, “Finkelstein rightly asks whether the real aim of BDS is to bring down the state of Israel. Here, I agree with him that it is. That should be stated as an unambiguous goal. There should not be any equivocation on the subject. Justice and freedom for the Palestinians are incompatible with the existence of the state of Israel.”); http://www.frontpagemag.com/point/246818/u-california-event-bringing-down-israel-will-daniel-greenfield (Lara Kiswani, executive director of the Arab Resource and Organizing Center discussed BDS and shared, “Bringing down Israel will really benefit everyone in the world and everyone in society, particularly workers.”)

[11] http://www.washingtonexaminer.com/california-should-stand-with-israel-and-boycott-the-boycotters/article/2587027 ; see also http://www.flgov.com/2016/03/10/gov-rick-scott-signs-legislation-to-support-israel/ (Florida Governor Rick Scott stated, “The Boycott, Divestment and Sanction movement is fueled by anti-Semitism, and has no place in Florida or any part of the world that values freedom and democracy. The state of Florida stands firm with our ally Israel and will not support those that participate in this intolerant movement.”); http://www.sun-sentinel.com/florida-jewish-journal/news/miami-dade/fl-jjdc-ordinance-1223-20151218-story.html (Village of Bal Harbour passed anti-BDS legislation and Councilman Groisman declared, “Make no mistake about it. The BDS movement is a global propaganda campaign against Israel that serves as thin cover for anti-Semitism – the levels of which we have not seen in the Western World in over 60 years.”); http://www.prnewswire.com/news-releases/assemblyman-travis-allen-announces-strong-bi-partisan-coalition-behind-ab-1552-to-end-contracting-with-companies-that-engage-in-boycotts-due-to-bigotry-and-discrimination-300236357.html (Assemblyman Matt Dababneh explained, “California sends a clear message that taxpayer funded state contracts will not go to organizations or companies that engage in discrimination against U.S. Democratic allies, especially Israel. In our business relationships, California must avoid giving the appearance of endorsing organizations that seek to harm our close allies or further discriminatory agendas like the BDS movement, and this bipartisan legislation, AB 1552, sends a strong message that California will not support such discriminatory or anti-Semitic efforts.”).

[12] http://www.amchainitiative.org/wp-content/uploads/2016/03/Antisemitic-Activity-at-U.S.-Colleges-and-Universities-with-Jewish-Populations-2015-Full-Report.pdf, at 15; see also http://www.israelnationalnews.com/News/Flash.aspx/355363#.Vvl8nuIrLIU (Ayelet Shaked, Israel’s Justice Minister, shared some of the BDS activists “Act out of naïveté and a desire to support human rights. They do not know the facts. But those who know the movement’s founder Omar Barghouti know that the movement acts against the existence of Israel as a Jewish and democratic state.”)

[13] https://www.youtube.com/watch?v=5oJRriJ2tY8&feature=youtu.be (Video of Omar Barghouti, see video at 1:09, as Omar expresses his own views and endorses by reference a Palestinian scholar’s prediction of the outcome of BDS).

[19] See also http://www.ibtimes.co.uk/lawyers-file-criminal-complaint-against-mark-zu... (German lawyers filed a criminal complaint against Facebook for anti-Semitic hate speech.)

[22] https://www.facebook.com/YvonneRidley1/photos/a.490437592372.267233.96043737372/10152165541202373/?type=3&theater (scroll down by comments, click “View more comments,” scroll down to the comment from username: “Aashiq Hussain.”)

[23] http://www.breitbart.com/national-security/2014/07/09/more-false-images-... (detailed analysis of false photos circulating the internet); http://www.bbc.com/news/blogs-trending-28198622 (“Some of the images are of the current situation in Gaza, but a #BBCtrending analysis has found that some date as far back as 2009 and others are from conflicts in Syria and Iraq.”); http://www.dailymail.co.uk/news/article-2236209/BBC-reporter-tweets-photo-injured-Gaza-girl-actually-child-Syria.html; http://www.hngn.com/articles/35653/20140709/bbc-admits-blunder-gaza-under-attack-photos-fabricated.htm (“The British Broadcasting Corporation has revealed that photos circulating on social media under the hashtag #GazaUnderAttack are not images from the current airstrikes in Gaza.”)

[24]See generally http://www.timesofisrael.com/hamas-and-the-international-silence-on-expl... Michael N. Schmitt, The Tyranny of Context: Israeli Targeting Practices, 37 U. Pa. J. Int'l L. 53, 59 (2015) (noting the importance of Hamas having been in control of Gaza since 2007); see also http://thelawfareproject.org/wp-content/uploads/2014/06/Hamas_Intl_Law.pdf (detailing Hamas’ war crimes under international law).

[25]See http://www.timesofisrael.com/hamas-and-the-international-silence-on-expl... (“each year, Hamas invests nearly NIS 100 million ($25 million) alone on smuggling materials for manufacturing weapons and setting up tunnels.”); https://www.washingtonpost.com/opinions/hamas-could-have-chosen-peace-in... (600,000 tons of cement was used for Hamas’ underground network of terror tunnels); http://www.wsj.com/articles/gazas-terror-economy-1406327783 (“If Hamas cared about the well-being of its citizens, it would use that money to build schools and public works or invest in businesses. Instead, Hamas devotes its scarce resources to building a terror economy of tunnels and rockets and sending its young men to die in suicide raids. That is why Gaza is impoverished.”)

[26] http://www.nytimes.com/2009/02/04/world/africa/04iht-mideast.4.19933553.... (Hamas confiscated about 3,500 blankets and 400 food parcels in the midst of the United Nations attempt to aid Gaza residents); Regina Goff, The Legality of Israel’s Blockade of Gaza, 8 Regent J. Int’l L. 83, 104 (2011) (“the United Nations Relief and Works Agency (UNRWA) suspended all imports of aid into Gaza for a time because, twice within three days, truckloads of food, blankets, and other supplies meant for the poor in Gaza were confiscated, once by the Gaza Ministry of Social Affairs and once at gun point from a distribution center.”); http://www.unrwa.org/newsroom/press-releases/unrwa-suspends-imports-gaza... (The United Nations Relief and Works Agency suspended its aid to Gaza due to Hamas’ theft of supplies meant for Gaza residents and the “suspension of imports will remain in effect until the aid is returned and the Agency is given credible assurances from the Hamas government in Gaza that there will be no repeat of these thefts.”)

[27] Michael N. Schmitt, The Tyranny of Context: Israeli Targeting Practices, 37 U. Pa. J. Int'l L. 53, 69 (2015).

[31] https://radioislam.org/islam/english/jewishp/internet/jews_behind_internet.htm (“In the following document we will give an insight into the Jewish penetration of the Internet and also show the level of cooperation between leading Jewish Internet entrepreneurs and the racist Jewish Apartheid state of Israel.”); https://ronabbass.wordpress.com/2011/03/26/jewish-control-of-the-internet-facebook-google-youtube-et-al/ (“It is NOT anti-Semitic to point out that the Jewish control over the internet is all pervasive.”)

[44] http://www.adl.org/israel-international/anti-israel-activity/c/campus-anti-israel-activity-2014-2015.html#.VumI6OIrLIU; see also http://www.amchainitiative.org/wp-content/uploads/2016/03/Antisemitic-Ac..., at 16 (Over 150 anti-Israel rallies and social media posts demonized or delegitimized Israel with rationale grounded in classic anti-Semitic notions of Jewish evil and power).

[45] http://www.adl.org/israel-international/anti-israel-activity/c/campus-anti-israel-activity-2014-2015.html#.VumI6OIrLIU; see also http://www.nytimes.com/roomfordebate/2016/04/04/is-anti-zionism-anti-semitism/rejecting-zionist-principles-is-a-rejction-of-jews (discussing the “lopsidedness and relentless of critique” on Israel which is “fueled by a fundamental rejection of the idea of a Jewish State.”)

[49] See generally http://www.israel21c.org/the-top-12-ways-israel-feeds-the-world/ (Israel’s agricultural innovations); http://www.timesofisrael.com/65-years-of-innovation-from-rummikub-to-the-god-particle/ (list of Israeli inventions including Rummikub, baby monitors, computer processors, amniocentesis, and the Uzi machine gun); http://nocamels.com/2015/12/coolest-israeli-startups-innovations-2015/ (“62 Israeli startup companies were sold for a whopping $7.2 billion in 2015”)

[50] http://www.israeltoday.co.il/NewsItem/tabid/178/nid/24392/Default.aspx; (Sodastream provided jobs for everyone and workers indicated that they were treated equally. “‘Everyone is treated the same here. The privilege that the Israeli worker gets, the Palestinian also gets,’ said [Palestinian worker] Rani Abed Rabbo, who was offered a management position by SodaStream after losing his job in the hi-tech sector. ‘There is no discrimination here. We eat together, we laugh together. We feel welcome here.’”); see also https://www.facebook.com/StandWithUs/?fref=photo (video of Sodastream workers describing their equal treatment and satisfaction with their jobs with Sodastream.)

[52] See https://boycottisraeltoday.wordpress.com/boycott-israel/; http://articles.orlandosentinel.com/1999-09-19/news/9909190019_1_walt-disney-capital-of-israel-jerusalem (United Arab Emirates culture minister stated, “We can do a lot of damage to this company's business.”)

[59] See http://forward.com/news/173939/first-black-miss-israel-titi-aynaw-reflec... see also http://www.huffingtonpost.com/rabbi-evan-moffic/antisemitism-at-my-alma-... (“Israel also welcomes immigrants of all faiths. Hundreds of refugees from violence in Africa have come to Israel, as have refugees from Asia. Arabs also make up nearly twenty percent to the country’s citizens.”)

[60] See http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20... (Israel’s Declaration of Independence provides that Israel will “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture. . . . in the very midst of the onslaught launched against us now for months - to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.” ); see also http://www.adl.org/israel-international/israel-middle-east/content/AG/inaccuracy-israel-apartheid-state.html?referrer=https://www.google.com/#.VumjCeIrLIU; http://www.nytimes.com/2011/11/01/opinion/israel-and-the-apartheid-slander.html?_r=0 (former justice of the South African Constitutional Court during the apartheid era explains that Israel is not an apartheid).

[66] See generally https://www.washingtonpost.com/world/middle_east/doctors--israeli-and-palestinian--work-together-to-heal-wounds-of-war/2015/10/25/b8f62240-78c5-11e5-a5e2-40d6b2ad18dd_story.html (A Hadassah Hospital doctor shared that when it comes to treating patients, the doctors treat everyone equally: “[w]e don’t ask who you are. We treat the terrorist the same as we treat the victim.”); http://www.jpost.com/Arab-Israeli-Conflict/Jerusalem-doctors-treat-terrorists-and-victims-alike-without-knowing-identities-431904 (Israeli Arab doctor at Hadassah Hospital explains that the hospital treats both Arabs and Jews: “I am an Israeli Arab, this is my country, I feel the same as Yochi (Doctor Schiffman) feels. It's my country and I'm doing my job. . . I don't wake up in the morning and start thinking 'I'm an Arab not a Jew' and such things, I am focused on patient treatment, that's all.”) http://www.ynetnews.com/articles/0,7340,L-4712411,00.html (Highlighting that Hadassah Hospital serves all patients, regardless of citizenship or the reason for needing treatment. Despite the tensions within Israel, a doctor shared, “at least at the hospital there is a different atmosphere. We work together, we provide treatment to all patients, no matter their religion or race, whether they're rich or poor, Israeli or not.”)

[69] See http://www.israelnationalnews.com/News/News.aspx/210424#.VwT0luIrLIV (dispelling the misleading notion that Israel has “50 discriminatory laws” because such a statement is “patently false claim” and a “propaganda talking point that no responsible media outlet should repeat.”)

[71] See Rust v. Sullivan, 500 U.S. 173, 193 (1991) (“The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.) (internal quotations omitted).

[72] Rust v. Sullivan, 500 U.S. 173, 193 (1991).

[73] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676307, at 3-6 (noting that Claiborne Hardware’s holding that boycotts are protected is inapplicable to BDS conduct and anti-BDS legislation does not run afoul of the First Amendment); see also Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (upholding a federal statute that criminalized knowingly providing support or materials to foreign terrorist organizations and noting that the statute did not prohibit freedom of association nor freedom of speech); http://thelawfareproject.org/response-pal-legal-ccr/#_ftnref7 (“Claiborne cannot reasonably be read to stand for the proposition that any statutory regulation of boycott activity is tantamount to a complete prohibition or, put another way, that any regulation of boycott activity is constitutionally impermissible. Again, reliance on Claiborne in the context of BDS is wholly inappropriate.”)

[74] http://www.tabletmag.com/jewish-news-and-politics/192110/can-states-fund... (Northwestern University’s Professor Kontorovich explained, “A business could call for a boycott of Israel organize rallies to this effect—and not be affected by this legislation. The current laws do not deal with consumer boycotts at all, but with boycotts by businesses, which are far more conduct than expression.”)

[75] See Karen Maritime Ltd. v. Omar Int’l Incorp., 322 F. Supp. 2d 224, 227 (E.D.N.Y. 2004) (opining that a federal anti-boycott statute is constitutional and noting that it “was intended to stop the secondary and tertiary boycotts that Congress considered detrimental to both the United States and Israel.”) (internal citations omitted); 50 U.S.C.A. § 4602(5)(A) (“It is the policy of the United States– to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States or against any United States person.”); see also Regan v. Taxation With Representation of Washington, 461 U.S. 540, 551 (1983) (“The issue in this case is not whether TWR must be permitted to lobby, but whether Congress is required to provide it with public money with which to lobby. For the reasons stated above, we hold that it is not.”).

[76]See Reeves, Inc. v. Stake, 447 U.S. 429, 438 n.10 (1980) (“States may fairly claim some measure of a sovereign interest in retaining freedom to decide how, with whom, and for whose benefit to deal.”)

[77] Rust v. Sullivan, 500 U.S. 173, 193 (1991) (internal quotations omitted) (emphasis added).

[79] Harris v. McRae, 448 U.S. 297, 317 n.19 (1980).

[80] Regan v. Taxation With Representation of Washington, 461 US. 540, 549 (1983).

[81] U.S. v. American Library Ass’n, Inc., 539 U.S. 194, 203 (2003).

[84] National Endowment for the Arts v. Finley, 546 U.S. 569 (1998).

[86] See Biggs & Stratton Corp. v. Baldrige, 728 F. 2d 915, 917 (7th Cir. 1984) (upholding a federal anti-boycott law while explaining the difference between protected communication of views on the Arab boycott of Israel versus conduct, which is not protected.) 

[88] Runyon v. McCrary, 427 U.S. 160, 176 (1976) (“while invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances . . . ”) (internal quotations omitted); see also http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676307 , at 15 (“engaging in activities like the promotion of foreign boycotts that interfere with government policy and the free functioning of commercial markets is not protected by the First Amendment.”); http://www.npr.org/sections/thetwo-way/2016/03/29/472268519/n-y-governor-bans-most-state-travel-to-north-carolina-over-lgbt-law (New York’s executive order bans “all taxpayer-funded trips to North Carolina, unless they’re essential to public health or law enforcement” in reaction to North Carolina passing anti-LGBTQ laws); http://www.advocate.com/religion/2016/3/30/vermont-and-washington-latest-states-ban-travel-north-carolina (Washington and Vermont halt expenditure of state funds on official state travel to North Carolina due to North Carolina’s controversial anti-LGBTQ legislation).

[89] Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (internal quotations omitted); see also http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676307, at 12 (“While the First Amendment generally protects the right to engage in a wide variety of protest activities, as the Claiborne and Longshoremen courts explained generally, and other cases have held specifically, the First Amendment is not absolute.”)

[90] Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984) (noting that conduct is not cloaked in protection by having a speech component); National Endowment for the Arts v. Finley, 524 U.S. 569, 587–88 (1998) (“we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities.”) See U.S. v. Am. Library Ass’n, Inc., 539 U.S 194, 212 (2003) (“CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress' decision not to subsidize their doing so. To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance.”) (internal quotations omitted). 

[91]See Dep’t of Rev. of Ky. v. Davis, 553 U.S. 328 (2008) (holding that only state’s actions as a regulator are subject to the dormant Commerce Clause, but state actions as a market participant, like an bond issuer, are not.); Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (“In Commerce Clause cases, for example, a basic distinction exists between States as market participants and States as market regulators. Similar distinctions exist with respect to the First Amendment.”) (internal citations and quotations omitted); Mason & Dixon Lines Inc. v. Steudle, 683 F. 3d 289 (6th Cir. 2012) (finding that when a state contracts to build a road, it is acting as a market participant that is financed by state and federal funds); see generally http://www.pjtn.org/tag/arizona/ (Northwestern University’s Professor Kontorovich discussed the constitutionality of anti-BDS legislation: states are “implementing laws that use state contracting power to fight back against racism.”); Reeves v. Stake, 447 U.S. 429 (1980) (characterizing South Dakota as a market participant in the sale of cement and noting that to hold otherwise would rob South Dakota of its “foresight, risk, and industry.”); Independent Charities of Am., Inc. v. Minnesota, 82 F. 3d 791, 801 (8th Cir. 1996) (“we hold that the exclusion of non-local fund raisers from the Campaign does not violate plaintiffs' First Amendment right to free speech or their rights to equal protection and due process. We further hold that the State is a ‘market participant.’”); Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688, 706 (E.D. Va. 2004) (noting that when government bodies operating airports are acting as market participants, “its regulations are subject to less First Amendment scrutiny.”).

[93] BDS conduct is discrimination based on national origin because it discriminates based on a brand’s origin, Israel, or a brand’s affiliation with Israel. http://www.laborandemploymentlawcounsel.com/2014/01/academic-boycotts-and-anti-discrimination-laws-tips-to-protect-academic-employers/ (discussing how the academic boycott of Israel could leave universities susceptible to liability under Title VII); http://brandeiscenter.com/blog/france-upholds-ruling-that-bds-is-discrimination/ (in France, “promoters of a boycott against Israel were found guilty of inciting hate or discrimination and fined a collective $14,500”); http://forward.com/news/breaking-news/323207/france-court-upholds-bds-is-discrimination-ruling/#ixzz465dTZGF3 (France found BDS boycotters guilty of discrimination).

[94] See generally Rust v. Sullivan, 500 U.S. 173, 193 (1991).

© Alamea Deedee Bitran

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About this Author

Alamea Deedee Bitran, Law Student at Florida International University College of Law, FIU Law
Law Student

Deedee graduated from the University of Florida with a 3.99 GPA and is currently in the top 5% of her class at the Florida International University College of Law. Deedee received book awards in: (1) Employment Discrimination, (2) Employment Law, (3) Focused Topics in Employment Discrimination Seminar, and (4) Medical Malpractice. While at FIU Law, Deedee won six national writing contests and secured publication agreements with the Women's Rights Law Reporter at Rutgers Law, Elon Law Review, and the FIU Law Review. Deedee is an Articles Editor on the FIU Law Review and a...

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