Omar Shakir and Rahul Saksena
Good afternoon everyone, good evening. Welcome to the Jerusalem Fund and our educational program The Palestine Center. My name is Zeina Azzam, I am the Executive Director here and I am delighted to see all of you, and welcome also to our online audience, our livestream audience.
Tonight we have two special guests with us who will be talking about a very timely and very important topic, BDS, or Boycott Divestment and Sanctions, which is a global grassroots movement that was initiated by Palestinian civil society in 2005. It calls for the academic, consumer and cultural boycott of Israeli institutions, companies, goods and services, as a means to draw public attention to the facts of Israeli oppression and military occupation of Palestinian lives and land and ultimately to pressure Israel to comply with international law. Our speakers will focus on the historical, comparative and theoretical context of BDS, addressing how and why the movement developed, how other movements have deployed it to challenge institutional discrimination and why it is such a powerful tool. They will also cover past and current legislative efforts to suppress and punish BDS activism in the United States.
So let me introduce our two speakers. Our first speaker will be Omar Shakir, who was a Bertha Fellow at the Center for Constitutional Rights. His work includes representation of Guantanamo detainees, Muslim community members affected by NYPD surveillance and the famous case of Professor Steven Salaita, his civil rights lawsuit against the University of Illinois. Omar has researched and co-authored The Palestine Exception to Free Speech, which is this amazing compilation of information from campuses and other places. And this is a Center for Constitutional Rights and Palestine Legal report. Another report called All According to Plan, a 2014 Human Rights Watch report, focused on the Raba`a massacre in Egypt. And Living Under Drones, which is a 2012 Stanford/NYU law report. Omar is a former Fulbright Scholar in Syria and holds a J.D. from Stanford Law School and an M.A. in Arab Studies from Georgetown University’s School of Foreign Service, where I met him a long time, and a B.A. in International Relations from Stanford. So, welcome Omar.
I will go ahead and introduce our second speaker as well, and then we’ll start. Rahul Saksena is a Staff Attorney with Palestine Legal, which is a non-profit dedicated to protecting the civil and constitutional rights of people in the United States who speak out for Palestinian freedom. His work focuses on legislative issues, advocacy for activists whose rights are under attack, and building Palestine Legal’s network of legal and other advocates. Previously, Rahul Saksena was a legislative director for a member of the New York City Council where he focused on police accountability and tenants and workers rights. He has served as policy director for the Restaurant Opportunity Center in New York and as legislative council for the New York Civil Liberties Union. He holds a J.D. from the Washington College of Law at American University and a B.A. in Political Science and History from the University of Michigan. So, as you can see we have two very special, extremely knowledgeable and informed, experienced, and activists speakers here with us today, one from New York and one from Chicago and we are just so delighted that both of you accepted our invitation to come all the way and talk to our audience. I have asked Omar and Rahul to speak for twenty minutes each, after which we will open the floor for discussion and questions. So, Omar if you would like to start, thank you.
Thank you all for coming, it is a real honor to be back at the Palestine Center and thank you Zeina and Samirah for all of your incredible work here at the center and for organizing this event on such a really important and timely topic. It is also an honor to speak with my colleague Rahul, who as you’ll hear, has really led the Herculean effort to respond to the wave of anti-BDS legislation that has cropped up over the last couple of years. So it is an honor to speak with you as well.
Just to give you a bit of an overview, in my twenty minutes what I hope to do is to talk about the context part of the title and specifically looking historically, comparatively and theoretically why Boycott Divestment Sanctions is such an effective tool. And that will sort of provide the backdrop to Rahul’s comments around the challenges facing the movement and sort of the reason why I think we see increasing efforts to suppress BDS. And I thank Rahul for taking the “pessimistic” or the challenges side, and the more legal side, allowing me to be a little bit more theoretical in my comments. I will draw on several historical examples, but one that I will draw from significantly is South Africa, as I was just in South Africa last month and have done a lot of thinking around BDS in that context.
I am going to make three pretty simple points and then I’ll hand it over, and all of those points I think underscore why BDS is such an effective tool. Most points are, first, it helps reframe the conversation. Secondly, it changes the calculus of Israeli activists. And third, it mobilizes communities in the international community. So I am going to go through those three points and then I’ll hand it over to Rahul.
So, the first point really is that Boycott Divestment and Sanctions changes the framework. And what do I mean by that? What I mean by that is, in the U.S. context, one of the most significant challenges we face is the perception that the Israeli-Palestinian conflict is “this thousand year old conflict”, right ? It goes “back to the beginning of time”, it’s about “these people that hate each other”, religion, ethnicity, “it can never be resolved”, its communal hatred at its corps. As the logic goes, “there’s two equal sides”, right ? There’s two narratives or powers and states or powers that are equally culpable – or in fact, if they’re not equally culpable, the Palestinians are “more responsible because they’re the more violent terrorist type”. And that logic goes further, right? And it says that each side has its legitimate “blindspots”. It has claims in that it’s only misunderstanding and hatred. And “if only the people could come together, and dialogue and compromise, and listen to the other, then we could have reconciliation and we could have co-existence”, right?
Of course we know that this narrative is simply false, for a lot of reasons, right? We know that the Palestinian-Israeli conflict is for the most part a modern struggle that probably dates back by most historical accounts to the late 19th century over land, resources,and rights, and it’s not so different from other post-colonial conflicts that we’ve seen. And we also know that a simplistic account of two sides overlooks the power dynamic, overlooks the fact that we face a situation of a colonizer and a colonized, an oppressor and and oppressed, and we have a single power – right – a single power between the river and the sea that controls the everyday lives of the people that live there.
So why is Boycott, Divestment, and Sanctions so effective? It’s effective because it focuses and it shifts attention to the underlying system, right. It looks at policies and institutions as opposed to tackling a particular state or individuals. It looks at a system of inequality, a system that includes corporations, international corporations, American corporations, Israeli corporations, and even Palestinian corporations, in some cases. And, by doing so, it really puts that attention on that unjust system and not on the role of any particular side. So, as an international community, when you take on Boycott, Divestment, and Sanctions, what you’re essentially doing is saying, “Look, I’m not Israeli, I’m not Palestinian.” What I’m doing though is saying that I don’t have a role to discuss a solution. It’s not my job to tell you one-state, two-state, fourteen states. What I can tell you is I’m a part of a church, or a university, or an academic union, and then in that context, I do not want my institution invested in profiting over a system of discrimination and rights abuses. It really takes what’s a very distant, far removed issue and puts it in the terrain of your own specific context. And by doing that, you basically are able to say, “Look, let the people on the ground, when they’re in equality, decide a solution. My job is to try and level that playing field by having that institution I’m affiliated with not actively supporting one side of the conflict.” So it puts emphasis on the underlying rights abuse but it does so using a language and a framework that’s universal and inclusive. What it basically says is “It’s not about me being Palestinian or you being Israeli. It’s about ending an unjust system to that we can live together as equals.” And again, that’s not talking about one-state, two-states. It’s talking about what the root of justice is.
And this is all happening at the same time that the Palestinian narrative itself is shifting. We see the Palestinian narrative moving more and more from a nationalist framework to a more rights-based discourse. So what do I mean by that? I think Ali Abunimah and his book,One Country, has a very powerful anecdote that speaks to what’s happening in Felesteen. In his book he talks about a 2004 encounter, in which a farmer from the Palestinian town of Qalqiliya is interviewed. He was displaced by Israel’s wall in the West Bank – and in this conversation he has the PLO legal adviser. He says the following and I quote, “I don’t care anymore about the Palestinian flag. I don’t care anymore about the word ‘Palestine.’ I don’t care anymore about symbols. I just want to have the same rights as those settlers across the street. I want to be able to drive down this road. I want to be able to send my kids to the hospital or go on vacation when I want to go on vacation.” Ali Abunimah reflecting on this incident write in his book and I quote, “Palestinian message and methods must make clear that the target is not the Israeli system, but an unjust system that denies them – sorry – that is not the Israeli people, but an unjust system that denies one people their rights, identity, and dignity and condemns the other to live in increasing isolation, fear, and moral corruption.”
Right, so I think increasingly the Palestinian movement – and it’s learning from the international context – if you want to look at the world today, I think, you can compare struggles like the Kurdish conflict, or the Chechnyan conflict, or the Kashmiri conflict,ones that have remained nationalist in framework, right, about fundamentally self-determination, with those, say, like South Africa or Sudan, which were framed in a universal language, whether it be about apartheid or genocide, one that allowed movements to build around [it]. And what we see when we look at Palestinian activists from hunger strikes by prisoners to bus boycotts, we see a new language who takes their target as the international community as opposed to historically the Arab world, where the Arab world was seen as the primary actor that was going to bring Palestinian liberation. And I think BDS has succeeded in conjunction with this shift in the Palestinian narrative – and what’s an example of this – I think for many of us who went to university in the early 2000s the framework we dealt with was, “Well, there’s occupation, but there’s suicide bombing.” It was sort of this “two sides, what do I do?” Now today, if you take to most college students, that’s not the framework. The framework [today] is, “Gaza attacks, we know Israel is committing abuse, what do we do about it?” And that shift, I think, has a lot to do with BDS. So point one is [that] it changes frameworks.
The second point I want to make is it changes the calculus of Israel and Israeli politicians. Of course the purpose of BDS, I mean the reason why you engage in Boycott, Divestment, and Sanctions is to put pressure on the stronger party. It’s the most effective, moral, non-violent way of exerting a pressure on the stronger power to come to the table and end the policies and rights abuses. So you want to force them to make that change. And it grows out of a history. The history shows us that colonial regimes do not relinquish power without popular struggle and resistance, without sustained international pressure. So of course that framework exists – people see it, whether it be looking at Algeria, whether it be looking at South Africa, but people always say, “Well Israel is different. Israel won’t change it’s policies. When you do BDS, what it does to Israel is it makes it double down. It makes them want to engage further in the occupation.” But I think the reality is different. If you look today at what’s happening within the Jewish American movement, or even the movement within Israel, you see strong divides over the issue of Israel. You see groups like J Street and Jewish Voice for Peace, that are basically telling Israeli officials, even those within the Zionist tent saying, “If you want to preserve Israel as a Jewish democratic state, you need to make progress on the occupation.” Because they’ve learned from history that the longer Israel goes down this road that the more it threatens a South African model.
What I wanted to do here is to look a little bit at the South African experience because I think an understudied part of the Israel-South African comparison is the way in which the white Afrikaner population in South Africa, the Boer population came itself to change its own calculus and what led F. W. de Klerk, the last president of apartheid South Africa to ultimately win that Nobel prize with Nelson Mandela – that’s sort of an understudied part of this example. So I wanted to spend a few minutes talking a little bit about that shift that happened in South Africa, because I think it’s very instructive and it points to why BDS is successful. But before I do that, just a little bit about South Africa, and a little bit about Afrikaners. So Afrikaner is a term that applies to the white South African population that came in the 17th century, of Dutch origin. And the Afrikaner narrative is similarly like the Zionist narrative – one that’s a narrative of expulsion, persecution, redemption and rebirth that characterize their struggle. Their narrative starts with a single day in history, April 6, 1652 when they set up on the Cape of Good Hope a colony. Mandela wrote in his book that this is “the day white South Africans commemorate the founding of their country and Africans revile as 300 years of enslavement.” So [it’s] a similar type of thing as the Nakba. And if you look back at 19th and 20th century South African history, the Boer population languished, actually, under British colonialism. Actually, the term “concentration camp” was first used to refer to what the British put the white South Africans in the early 20th century. They initiated a scorched earth policy to destroy tens of thousands of white South African homes, set up concentration camps, and tens of thousands were killed. This event is at the heart of the white South African narrative. F. W. de Klerk once declared, and I quote, “The Anglo-Boer war burnt itself in the collective consciousness of my people, the Afrikaners, like no other event in history.” Actually, this history is what made the white South African population determined never again to forego their independence. Not so different than Zionism, their narrative was, “We need to control a state, we need power, or else we risk being subsumed by forces that dislike us.”
So in 1948, the Nationalists came to power on a platform formally erecting apartheid in power and I quote from the Nationalists Party platform from 1948, “The choice between us is one of two divergent courses: either that of integration, which in the long run would amount to national suicide on the part of whites; or that of apartheid, which professes to preserve the identity and safeguard the future of every race.” Don Kraus who’s the chairman of the Johannesburg Holocaust Survivor’s Association wrote, “What the Nationalists were trying to do is protect the Afrikaner, especially after what was done to them during the Boer war when the Afrikaner was reduced almost to a beggar on returning after the war, whether it was on the battlefield or on some sort of concentration camp, they did it to protect the Afrikaner, his predominance after 1948, and his culture.” Right, if you replace those terms with Zionism, it’s a very similar logic to what’s led to the creation of the state of Israel and its maintenance of the occupation.
Another parallel people lose between Zionism and Afrikaner nationalism is the role of religion. Mandela once wrote, talking about the Afrikaners, and I quote, “Like the Israeli journey to the promised land, his was the fulfillment of God’s promise, and their justification for their view that South Africa should be a white man’s country forever.” In fact, the Afrikaners compared their flight to the Israeli exodus from Egypt, and they saw their own republic as a New Israel. In addition, the white South African population reversed the indigenous relationship. They thought of themselves as the indigenous people – and they saw themselves in a “tough neighborhood,” right, surrounded by uncivilized people. In 1976 South Africa put out a publication, and this is a quote from the publication, [from] apartheid South Africa, “Israel and South Africa have one thing above all else in common: they’re both situated in a hostile world inhabited by dark people.” They use colonial logic and racism, they saw the people around them as inferior. They also had contradictions; they were a democracy in a sea of autocracy. They had technology; they sought to hide their encounters with their indigenous population. They actually depict their history, including 1948, as a fight for independence. When you have that history, the only option you have is to erase the existence of the indigenous population.
Of course everybody remembers Moshe Dayan’s famous quote in 1969 when reflecting on 20 years of Israel, that the success was replacing old Palestinian villages with the names of Israeli villages. Well I submit to you a quote from Nelson Mandela’s autobiography, and he wrote in 1955 about driving in Durban, and this is a quote from his book, “From Durban I drove along the coast, past Port Shebstone and Port Saint Johns. Small and lovely colonial towns that dotted the simmering beaches fronting the Indian Ocean. While mesmerized by the beauty of the area, I was also constantly rebuked by the buildings and streets that bear the names of white imperialists who suppress the very people whose names belong there.
And of course the last similarity that people forget is that they’re both obsessed about demographics. De Klerk once wrote that foremost among these was “our conviction that without apartheid, our people would be swamped by the vast black majority, and that this would inevitably lead to the extinction of our hard-won right to self-determination.”
So you’re probably asking me, “Omar, you just spent three minutes talking about South Africa, what does this has to do with BDS?” Well, South African officials have some advice for Israelis actually. Pieter Botha, the former South African Foreign Minister was asked what advice he would give Israelis about dealing with the struggle, and I quote, “We could explain how we overcame our fear of majority rule, and began to realize that majority rule was something in our interest, in our long-run. If the Israelis are interested, we can, in all humility, explain how we came to the point of transforming our society.” BDS in the South African context provided the bridge that allowed the Afrikaner population to go from this narrative of victimization, of persecution, of not being able to forego apartheid, which was necessary to protect their national identity, to living in a system of equality because of BDS.
How do I know that? F.W. de Klerk again writes, quote, “We realized the struggle could not be won by brutal unconventional operations which were in conflict with common decency and basic morality. No evidence that the assassination of opponents had the slightest effect on the final outcome of the struggle, other than causing further personal suffering and bitterness.” De Klerk writes about the moment of watching Mandela take the oath of office, and he writes about this moment, and he reflects on his ancestors, his Afrikaner ancestors, and he writes, “The dream they had of being a free and separate people, with their own right to national self-determination, and their own national state in southern Africa, the ideal to which I myself had clung until I finally concluded that if pursued would bring disaster to all people of our country including my own.
BDS led de Klerk to realize that the best way to preserve the place of Afrikaners in the future of South Africa was to open itself up to a society of equality. That realization saved lives and it brought him the Nobel Peace Prize. Everyone wants to know when will the Palestinian Mandela emerge. My question is when will the Israeli de Klerk emerge? And I think we will see one, and it’s because of BDS efforts.
So I want to end with my third point, which is BDS also mobilizes people and movements. Hugh Evans, who was an Australian humanitarian talked about BDS in the following terms, “History shows us that all protest movements rely on symbols, boycotts, strikes, sit-ins, flags, songs, symbolic action on whatever scale, from the Montgomery Bus Boycott to wearing a simple wristband. It’s designed to disrupt our everyday complacency and force people to think.” So the idea is you move out of your everyday and you actually make this conflict, these sets of human rights abuses something that’s a real issue on your campus,in your union, you’re debating and you’re discussing it because you have a direct affiliation to it, and that mobilizes people. If you look at South Africa, Desmond Tutu, the Archbishop and Nobel Peace Laureate said, “In South Africa, we could not have achieved our freedom and just peace without the help of people around the world who through the use of non-violent means such as boycott and divestment encourage their governments and other corporate actors to reverse decades-long support for the apartheid regime.”
And we see this again in North Carolina and Mississippi, and the wave of anti-LGBTQI legislation in place around bathrooms. We’re seeing Bruce Springsteen and all sorts of leaders boycott – and although that’s symbolic, although not having a show does little to stop, to change a bathroom bill, the reality is the accumulation of that pressure together, forces, it mobilizes people, supports the movement and forces leaders to change their calculus.
And, I’ll conclude by saying [that] we’re starting to see that in Palestine if we look at the history of the last decade. Again, we were stuck in this rut in the early 2000s, post 9/11, after the intifada, in this country of not being able to advance the conversation. Palestine was a fringe movement on many campuses. Those that worked on this issue could not build coalitions, we could not get co-sponsorship of major departments. That’s all shifting. We see increasingly diverse groups all following the call of Palestinian civil society in 2005, 150 ngo’s calling for divestment. Today we see the American Studies Association, [and] other very prominent academic associations endorsing boycott and divestment. We see student governments across the country. I did my studies at Stanford [University] as you heard in my introduction. Stanford has a 21.4 billion dollar endowment. Last year the student government in the face of widespread opposition endorsed a call for boycott, divestment, and sanctions. And we’re starting to see that take real effects. We have companies like Veolia, like G4S, like SodaStream that are shifting their operations as a result of the pressure they’re facing from boycott, divestment, and sanctions.
So, you’re going to hear from Rahul about the rise of anti-BDS legislation, but I want to make this point, and this is really what I’ll conclude on, [which] is to say that the reason why increasingly we’re seeing Israeli advocacy organizations move to anti-BDS legislation is because they’re losing on the merits. They’re losing the debate on college campuses. They’re even losing on their other suppression tactics, and in our report that was mentioned, we talk about things like legal threats and law-suits and academic freedom actions, but they’re losing on all fronts. Courts are rejecting their argument, administrators are refusing more and more to discipline their students. So what are these groups doing as a last ditch effort over the last year, they’re saying, “We do one thing well – we lobby legislators. So let’s turn to those very legislators and try to have them stop it because nothing else is working.” But, that’s failing.
So, I want to end with a quote,and then I’ll give it to Rahul. And the quote is a piece of hope – he’s going to say some things that might make you pessimistic from him, so I want to leave you with some hope. Israeli human rights lawyer, Michael Saffard, had an op-ed in Ha’aretz two months ago, and he was addressing the question of how it is that civil society organizations – he was talking about the crackdown on Palestine, but it’s really universal, how is it that they continue to make progress in spite of significant oppression, and I’m just going to read this quote and [then] I’ll sit down. “The answer is simple. The world is driven by diverse forces. We vividly see and feel the political, economic, and military forces daily. But there are also less visible forces, whose mode of operation is less overt. One of them is actually an idea that all human beings are equal, and that all deserve rights because they are human beings. That idea is responsible for the greatest and most important revolutions in history. It’s an idea that operates like dark matter in the universe, in silence – and it together with those who oppose the occupation is pushing us to end the occupation and to bring about a substantive change in the way Israeli society functions. It vests these ostensibly small and weak organizations with inexplicable might – and it will bring an end to the occupation.” Thank you.
Hi everybody, I’m Rahul Saksena. I’m staff attorney at Palestine Legal, and thank you for having me, and thank you all for coming. So as Omar mentioned, I’m going to talk a little bit about anti-BDS legislation, and I’m going to try to not be a pessimist about it, going to try to be optimistic.
So Palestine Legal, just for some background, our mission is to protect and defend the civil and constitutional rights of people in the U.S. who speak out in favor of Palestinian freedom. We have four staff attorneys. We’re kind of scattered across the country. I’m based in Chicago,, I went to law school here in D.C., so I’m very happy to be back.
So today I’m going to try to cover these five topics. If I go on and on, please just tell me to hurry up. I’ll try to be relatively quick. But I want to talk a little bit about the legal background, the legal basis for the BDS movement, to put the BDS movement in the legal context, and then I want to talk about the suppression of BDS, first about talking about the broader context of that suppression that the Center for Constitutional Rights as Omar mentioned that we covered in this report called, “The Palestine Exception to Free Speech”. And then I want to talk about what we refer to as two different waves of anti-BDS legislation: the first wave in 2014, the second wave which we’re currently experiencing – 2015/2016. Finally, I want to end with our legal response and also the organizing response that we’ve seen to these anti-BDS legislating initiatives.
Is there anyone here from the “Freedom to Boycott” groups in Maryland or Virginia? Ok, so maybe when I get to the organizing part I can hand it over to you to talk a little bit about what you successfully did organizing against anti-BDS legislative initiatives here.
So first, a little bit about the First Amendment. How many people here are lawyers? We’re in D.C. so there are probably a lot of you. What is the First Amendment and why do we have the First Amendment? Free speech, religion, yeah. The First Amendment of the Constitution protects the rights of freedom of religion, freedom of speech from government interference. I’m going to focus mostly on the speech part. Why is that important? Why is the speech act of the First Amendment important to our society? [Audience responds] Exactly. Legitimate equal dialogue, freedom from government censorship or suppression.
I think about my work at Palestine Legal often in terms of not just us being an organization that supports Palestinian freedom but also a pro-democracy organization. I think that as a democracy, you know we call ourselves a democracy although that could be debatable, I think that a foundational aspect of what a democracy is the fact that we have open debate. We have open dialogue and we’re allowed to challenge each other’s opinions and beliefs and viewpoints, especially on important political issues. If we don’t have that then we don’t have democracy, and a democracy thrives, a democracy is strongest when we’re allowed to challenge each other’s ideas, we’re allowed to have a marketplace of ideas, where ideas and expression is challenged. That’s kind of the foundational basis of democracy.
But when one side of a debate is silenced, it hurts not just our ability to challenge our society’s opinions and beliefs on such an issue, but it hurts democracy as a whole. And that’s what we’re seeing when it comes to Palestine, the dialogue about Palestine in this country. And so what is speech? The Supreme Court has held that it’s not just what we say, it’s not just our words, it’s also our expressive conduct, so, the political statement I wear on my t-shirt, the street theatre or the art that I have outside, or a sign that I hold, a poster that has a political statement. In 1982 the U.S. Supreme Court held that boycotts – this country has a long tradition of boycotts – boycotts that use legal means, “not riot or revolution,” I think the Supreme Court said, but legal means to bring about political, economic and social change, to vindicate rights, are protected by the First Amendment.
So the BDS movement, our right to advocate for boycotts of Israel, our right to advocate for BDS is something that is protected by the First Amendment, and I think our Supreme Court has been very very clear on that. So, keep that in mind. Now I’m going to talk about the suppression of that right.
As it’s been mentioned, we worked with the Center for Constitutional Rights to release this report called “The Palestine Exception to Free Speech” [holds up the report] in which we documented what we see is, what is actually, a campaign to suppress Palestine advocacy in this country. And it happens in many forms. So in 2015, Palestine Legal, we responded to something like 240 incidences of suppression of Palestine advocacy in this country. The vast majority of that suppression happened on college campuses. I think 80 percent happened on college campuses because that’s kind of where the BDS movement is most active. But when I say suppression, what do I mean? Some of the tactics that we’ve seen, that we documented in this report include censorship of Palestine advocacy, or even censorship of Palestine symbols. Some of you may remember the case of the GW student, right on the corner here, who was asked to remove his Palestine flag from his window, just a few months ago when there were clearly other flags hanging from windows, so it’s not just censorship but also disparate treatment. School administration after school administration is pressured by Israel-advocacy groups to crack down on Palestinian advocacy, treat them differently than they do other student organizing. False accusations is a big one, false accusations of anti-semitism based exclusively on speech critical of Israel; and on the flip side, false accusations for support of terrorism based on speech supportive of Palestinian freedom. Bureaucratic barriers: school administrations setting up these hurdles that SJP, Students for Justice in Palestine, have to go through. It seems like kind of not a big deal but it’s actually quite nefarious, and the intent of it is actually to chill speech, to dissuade students from organizing Palestine-related events. Disproportionate punishment against Students for Justice in Palestine, cancellation of events, and a big one that Omar alluded to is meritless, threats of meritless lawsuits.
So in that context, in the context of this campaign to suppress Palestine advocacy across the country, Omar mentioned that suppression, the goal of it is to squash the debate, squash speech in favor of Palestinian freedom. And now we’re increasingly seeing that suppression happening in state legislatures across the country. So this is a map of the states that just in the last few months have introduced or in some cases passed anti-BDS legislation, and I’m going to talk a little bit about what I mean by anti-BDS legislation. [Question from the audience] The dark blue ones [referring to the slides of the states], that’s a good point. It’s almost 50/50. Quite a few in the north.
So I’ll talk a little bit about what I mean by anti-BDS legislation. I’ll talk a little bit about which ones have passed and what they do. But I think it’s important to remember as I’m talking about this, and this is where my optimism is going to come through. Remember our First Amendment protects our right to advocate for BDS. Our First Amendment protects our right to engage in boycotts, and no law, no bill, no state-legislated initiative can overwrite that constitutional protection. So, going back to what happened in 2014. Does anyone remember in terms of anti-BDS legislation? What kind of bills were we seeing and why? [Audience member says: “Defunding education to punish advocacy”]. Exactly. So I think at the tail-end of 2013, the American Studies Association passed their BDS resolution and a few states – I think it was New York, Maryland, and Illinois – seeking to punish the ASA. And they did that by defunding, by threatening to defund schools or reduce funding for schools, reduce state-funding for schools that housed ASA or housed an association that passed a BDS resolution. And so, none of these bills passed. Why did none of them pass? Because they were clearly, blatantly, unconstitutional, and because there was a very clear, strong organizing effort, including “Freedom to Boycott” in Maryland, coalition, including a great coalition of activists in New York that came together and fought these bills.
So at Palestine Legal, Center for Constitutional Rights, National Lawyers’ Guild we made the legal argument that, “No, sorry state lawmakers. You cannot do this. You as politicians don’t have the right to threaten funding to suppress speech. That’s a violation of our basic, basic First Amendment principles.” So here’s a quote, “The New York Bill,” this is about the New York Bill, “is an ill-considered response to the American Studies Association resolution and would trample on academic programs and would chill speech and dissent.” Where’s this quote from, any guesses? Not some left-wing legal organization or association, but our friends at The New York Times. Not exactly the Palestinian freedom fighters but at least strong on First Amendment and academic freedom issues. So, we had good media criticism of these bills.
So fast forward from 2014 to 2015, in the span of one year, the BDS movement started gaining quite a bit of traction, especially on college campuses, divestment resolution after divestment resolution, and also in religious institutions. And so lawmakers, Israel advocacy groups got together again and said, “What can we do, seeing that all these academic freedom threats didn’t work, what can we do now? We can’t make BDS illegal because there’s this First Amendment problem, so how can we go around that?” And so now what we’re seeing is the proliferation of anti-BDS legislation that varies from state to state, but they all include three basic components, at least two of these three components. The first component is a blacklist – so you know, this is Israel-advocacy organizations going to lawmakers and saying, “You have to blacklist these people.” And in some cases it’s people, some cases it’s organizations, and some cases it’s corporations. So in New York it would be all of the above. There’s no limits on individuals in terms of geographic scope. So someone in a village in India who supports BDS, if the bill in New York passes, would be blacklisted by the state of New York. It’s pretty crazy.
Second component is a prohibition on state contracts. So they say, “Ok, we can’t make boycotting Israel illegal, but what if we say, ‘If you boycott Israel we’re not going to let you do business with the state of New York or whatever state it is.’” And the third component is pension fund divestment. They’re saying, “Alright, if you are a corporation and you boycott Israel, we don’t want to have anything to do with you so we’re going to divest our pension fund from you.”
So this is lawmakers with Israel advocacy groups trying to be creative in their approach to violating the First Amendment, basically. But there are basic constitutional principles that say, “You can’t suppress protected speech,” and “You can’t use government funding, you can’t use government levers as a way to suppress that speech.” There’s actually a very clear Supreme Court case law from the late 90s that says very directly [that] the government cannot punish state contractors for their political viewpoints. So these state contracting laws in particular directly violate that very clear Supreme Court case law.
So, I tried to fit it all on one slide, but they didn’t all fit because there’s so many of them, but this is sort of an example of what’s being introduced in the states. You don’t need to memorize it all right now, but I’ll give you a link to the website that has all the information you’ll need.
The top five – Illinois, South Carolina, Florida, Indiana, and Arizona have all passed [anti-BDS legislation] and become law. Illinois was the first – it happened last year – and their bill, their law requires the state to create a blacklist of foreign companies that boycott Israel and requires the state pension fund to divest from those companies. And so just about a month ago, the state of Illinois finally released their blacklist of foreign companies, and it’s been criticized. Illinois has actually become kind of a laughing stock in the media because on this blacklist appear companies that have said out loud, “We have not boycotted Israel, and we have no intention to do so.” It also includes G4S, which is the target of BDS campaigns. So Illinois has come under a lot of pressure and has been mocked for their blacklist and it kind of goes to show how in a way these bills are not only ineffective, but also these things are being created behind closed doors without any transparency, these lists, and in the end they’re actually making a mockery of the state lawmakers who have been advocating for them.
New York so far I think is the most blatantly unconstitutional because as I mentioned it’s blacklist includes individuals. I think that’s the only state that includes individuals right now, but that hasn’t passed. I think one of the bills passed the state senate but it has not passed the assembly. Pennsylvania has three different bills pending. One of them is an academic freedom bill a la 2014, [but] they missed that boat, didn’t get the memo. I don’t think that that bill is going to be moving anywhere though.
So I’m going to play the “Who said this?” game. This is a quote about the California bill, “…the bill (AB 2844), in print raises very serious and possibly insurmountable First Amendment concerns.” Any guesses on who said that? [An audience member says Scalia, followed by audience laughter] No not Scalia. It wasn’t the L.A. Times and it wasn’t a legal organization like Palestine Legal or CCR. It was the California Assembly Judiciary Committee legal analysis, which was released two days ago. The following day, yesterday, the committee members made minor tweaks to the bill and passed it through the committee despite the possibly insurmountable First Amendment. So this is kind of what we’re dealing with, lawmakers who don’t even listen to their own legal analysts, let alone groups like Palestine Legal and CCR.
So this is, I think this is the most important slide. I’ve said it already, but this is really all you need to know: your right to boycott and to advocate for BDS is protected by the First Amendment of the U.S. Constitution. There are all these anti-BDS bills out there and a lot of people are talking about them, and a lot of people are concerned about them. And I actually think that the biggest threat that they pose is the chilling effect that they have, because people say “there are these anti-BDS bills, they are criminalizing us, they’re taking away our right to advocate for BDS and boycott Israel,” and that’s not true, don’t listen to them. They may have these contracting positions, they might have these pension fund divestment provisions, and yes, they might have a blacklist, which is scary and we should fight the; and our lawmakers should be held accountable. Our lawmakers should be in the business of protecting our rights and expanding our rights and defending our constitutional rights, not the other way around. But at the end of the day, I think the bottom line is that we should keep in mind, none of these bills take away our right to advocate for BDS or to boycott Israel – and that’s important.
Ok, so, I want to tell you a little bit about what Palestine Legal and our partners at the CCR and the NLG – National Lawyers Guild, and the ACLU are doing to fight these bills. At Palestine Legal I kind of see our job as three-fold, and if any of you disagree or have more advice for us, I would love to engage in a dialogue about what more we could be doing. But I think our job as a legal organization working on Palestine issues is one, to track the bills and to provide resources, the track the bills and let people know which bills are where in their state. And so we’ve teamed up with our partners at the U.S. Campaign to End the Israeli Occupation and Jewish Voice for Peace to create a website called RightToBoycott.org. And if you go to that website, you’ll see this map of the U.S. You can click on the state that has anti-BDS bill. It will take you to a page that has different resources, lets you know where the bill is, in committee or what the status of it is, that gives you a quick description of the bill, and gives you a link to take action to fight the bill if there is an action available. So one, I think our job is to track these bills.
Two, I think our job is to provide activists with legal resources to fight these bills, to share with their lawmakers, to let them know that these bills violate our constitution, and to let them know as lawmakers that their job is to protect our rights, not take them away. So for many of these states, we’ve written legal memos or legal letters for your lawmakers. You can download them on the pages and you can share them with your lawmaker.
And finally, I think, as I hope I did today, I think our job is to let activists know or to inform activists not only what these bills do, but more importantly what they don’t do. As I mentioned, I think, the biggest threat that the suppression, the campaign to suppress Palestine advocacy has not just in terms of anti-BDS legislation but also what we’re seeing across the country is the chilling effect on our right to speak out. When we feel like we don’t have the right, when we’re scared to speak out, when our speech is chilled, that hurts the movement, that hurts our dialogue as a democracy, and it’s what’s going to maintain the broken, broken status quo on this issue. So it’s really important to keep that in mind and to not be intimidated by the, to not be intimidated and to not be misled by the media’s messaging on these anti-boycott laws.
I think that’s all, but I do want to talk about the amazing organizing work that’s happening. So we’ve teamed up – and I’d love to hear from the RightToBoycott folks that are in Maryland or Virginia here, but some observations that I’ve made at Palestine Legal about the organizing is that pension fund divestment is bad – we should fight it, state contracting is blatantly unconstitutional and we should fight it, but I think that what we should really keep in mind as we fight it and what the coalitions that have emerged across the states to fight it have done really well is use these bills as an opportunity. Rarely does the mainstream media cover BDS, but they cover legislative initiatives, and these are an opportunity to raise awareness, to tell our neighbors, to tell our lawmakers and to tell our communities [that] this is not only about our constitutional rights but this is about BDS and this is what BDS is. And the coalitions that have emerged in states across the country to fight these bills have done a really good job of seizing that opportunity, of placing op-eds in local papers, of writing letters to the editor to talk about BDS and using this as the media hook. So that’s one.
And two, what we’re seeing now in places like Maryland, in Ohio, in Pennsylvania, in New York, is that these bills have created networks,have created coalitions that have come together to fight them, and those coalitions outlive the bill. And those coalitions that came together to fight these bills, are turning, once the bills are done, are turning and saying, “Oh, now we know each other, why don’t we launch a BDS campaign?” So in that way, strategically, I think it’s important, you know the way Israel advocacy groups behind these bills have a lot of money, have a lot of power, and how can we use that in our favor? How can we use that strategically to advance BDS – I think it’s an opportunity. That’s why I try to be an optimist. And I think it’s real. I think it’s what’s happening.