Image courtesy of the ACLU.
The following is an opinion contribution and reflects the author’s views alone.
The freedom of citizens and organizations to express their views on significant issues occupies a place of particular importance in the American judicial system. After all, a necessary check on the state’s power is public expression. Public expression permits private citizens to influence governmental authority directly and serves as the backbone of self-governance.
While judges have historically respected all First Amendment rights, freedom of expression, particularly regarding public issues, has usually been given a unique degree of deference by the court system. The Supreme Court has stated that speech on these issues occupies the “highest rung of the hierarchy of First Amendment values” and has typically made the preservation and protection of this speech a priority above other rights and duties.
However, despite this judicial deference, state lawmakers have not hesitated to push for legislation restricting the right of groups receiving public funds to express themselves on public issues. In recent years, many states have passed laws that prevent the flow of state funds to organizations participating in the anti-semetic Boycott, Divestment and Sanction (BDS) movement. These anti-BDS laws generally include provisions compelling those wishing to receive public funds to not participate in, endorse, or support the BDS movement. Anti-BDS laws also often require signed pledges that these requirements will be held to. Targets of this legislation range from law firms, school teachers, and newspapers, and refusal to either sign these pledges or hold to their tenets is typically met with the loss of vital public funding. Proponents of these laws claim they are necessary to combat rising anti-semitic fervor against the State of Israel and American Jews. At the same time, opponents assert that they are an unconstitutional attempt to curtail the freedoms of American citizens.
Not surprisingly, the passage of these laws has been met with a great deal of controversy. Given their possible conflict with the right to free expression, these laws’ legality has been frequently questioned, and several lawsuits asserting that these laws violate the First Amendment have been won in Arizona, Kansas, and the Ninth Circuit Court Appeals. While anti-BDS advocates argue that state power to regulate commerce and allocate public funds permits legislators to prevent funding for BDS supporters, they have failed to convince federal judges that this power is a more significant concern than the civil liberties of those affected by these laws. A ruling from the Kansas District Court illustrates this divide, stating that “the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law” and further emphasizing that “a desire to prevent discrimination against Israeli businesses is an insufficient public interest to overcome the public’s interest in protecting a constitutional right.”
So, if these laws seem so clearly unconstitutional, why do they continue to be so readily passed by several states? Well, it appears that this issue is part of a widening cultural divide in this country. Those who fiercely oppose anti-semitism and BDS see the legislation as not only financially or geopolitically advantageous, but also as morally and often religiously obligatory. They believe that BDS represents anti-semitic discrimination against an American ally and supercharges domestic attacks against American Jews, so American law must correct for that. In their view, those who engage in the BDS movement are harming America, so what is the harm in using the state’s power to push back?
Frankly, this narrative behind the actions of BDS advocates does not justify this dangerous restriction of freedom of expression. Even though many BDS supporters are purposefully and maliciously engaging in organized opposition to Israel, this would still not be a justification for the unconstitutional restriction of their right to public expression. Unfortunately, Americans of late have grown far too comfortable with the use of silencing measures against those with whom they disagree, even if the opposing view is harmful.
The willingness of Americans to use state power to repress hateful actions is particularly surprising given that America has prided itself on the civic liberties enshrined in the Constitution. A fundamental tenet of liberal democracy in the U.S. is the valuation and protection of political speech by private citizens and organizations regardless of the opinion’s content or message. We should pride ourselves on promoting a robust dialogue on political issues by preserving the right of any individual to hold his opinions without fear of sanctions or reprisal.
For conservatives particularly, we often rail against the tendency of liberal institutions to censor opinions that they dislike. We frequently discuss modern college campuses and critique these left-leaning institutions as wholly intolerant of conservative views and beliefs. How, then, can we support or ignore the state of anti-BDS legislation in the United States? We cannot decry the chilling culture of political intolerance descending onto college campuses while simultaneously turning a blind eye to these politically motivated reprisals threatening our citizens.
Support for Israel is perfectly reasonable and protection of the American Jewish community is just, but these actions cannot violate the Constitution. Restricting the rights and privileges of Americans for our allies or segments of our society is simply unacceptable. It should not be tolerated by any who profess to be supporters and defenders of free speech here in the United States.
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