As a domestic civil liberties organization, we don’t take a position on the Middle East conflict, but when we see a systematic effort to crack down on a social movement, we fight back. As such, we have long been involved in opposing attempts to shut down Palestinian human rights advocacy. In 2016, we saw a record number of threats to Palestinian human rights advocacy domestically in the United States and a record level of involvement on our part.
Background: To Silence a Movement
The major affront to Palestinian human rights advocacy came in the form of state bills penalizing supporters of Boycotts, Divestment, and Sanctions (BDS). BDS stems from a 2005 Palestinian civil society statement calling for broad boycotts, divestments, and sanctions until Israel ends its military occupation and settlements outside its 1967 borders, permits Palestinian refugees the right of return, and ceases discrimination against Palestinians with Israeli citizenship. BDS has become a popular form of advocacy amongst activists for Palestinian rights globally and in the United States. This is particularly so on campuses and in academic associations. Some BDS opponents have decided to focus their efforts on getting legislators to penalize those they disagree with politically.
While we have seen anti-BDS laws in the past, in 2016 they largely took the form of attempting to prevent the state from doing business with individuals or entities that support BDS. These took two forms. One was barring participants in the BDS movement from receiving public contracts, the other form was barring participants in the BDS movement from receiving public investment.
Both of these policies are plainly unconstitutional. The Supreme Court has ruled that boycotts for political, social, or economic change, such as a boycott aimed at changing Israeli policy, are protected political speech. The Supreme Court has also stated that one cannot deny someone a public benefit, including a state contract, on the basis of their protected speech.
Although these bills target for penalty only those wishing to do business with the state, they have a much wider chilling effect. During the debate over the California anti-BDS bill, which would have denied contracts to those who support BDS, supporters of the bill, including its sponsor, testified that the bill was necessary, because of advocacy for BDS by students on college campuses. We have also heard reports from our allies about these bills having a trickle-down chilling effect, where confused campus administrators cite them as justifying their suppression of student activism, in spite of these bills having no plausible nexus to campus speech.
BORDC/DDF mobilized our grassroots supporters to take action against anti-BDS bills in Maryland, New York, Florida, Indiana, Virginia, California, and Ohio. We worked with coalitions against BDS bills in Maryland, New York, California, and Massachusetts.
In Maryland we played a major role working alongside the Freedom2Boycott Coalition. Our Policy and Legislative Counsel, Chip Gibbons, served as the coalition’s legislative co-chair. We helped to conduct grassroots advocacy training, create handouts and fact sheets, participated in an advocacy night, and even drafted a model bill that would have defended the right to engage in a human rights based boycott. The Freedom2Boycott Chair and BORDC/DDF Patriot Award Winner, Alison Glick, said “In all honesty, the work of the Bill of Rights Defense Committee/Defending Dissent Foundation was really key in our victory[…]”
BORDC/DDF also was member of coalitions against anti-BDS bills in California, where our Vice President, Fadi Saba, was an active participant. We were also members of coalitions in New York and Massachusetts.
Another important role that BORDC/DDF played in opposing these bills was through drafting legal memorandums and letters of opposition against state bills in California and Ohio and against Gov. Andrew Cuomo’s Executive Order. Our letter to the California legislature was of particular importance to us. The proposed California bill would have created a blacklist. Our founder, Frank Wilkinson, was fired from his job as Assistant Director of the Los Angeles Housing Authority and blacklisted in California because he supported desegregated housing. So, we felt a special responsibility to make sure this shameful history did not repeat itself.
We know that legislators paid attention to our legal memorandums. In one state, we were directly contacted by a state legislator, who had seen the work we had done on the issue, asking if we could provide similar analysis for a proposed bill in their state. We were more than happy to oblige.
And it wasn’t just legislators who asked for our analysis. Our Policy and Legislative Counsel Chip Gibbons did a number of interviews, including with al-Jazeera Arabic, and appeared on a number of panels and workshops where he spoke about the First Amendment protections of the right to boycott.
Protecting the Right to Boycott in 2017
At the tail end of 2016, Congress introduced a bill called the “Anti-Semitism Awareness Act.” Although it was touted as a response to an uptick in anti-Semitic hate crimes, the bill was in fact a cynical attempt to use good faith concern about Trump-induced climate of hatred to yet again target student activism. The bill would have called on the Department of Education Office of Civil Rights to adopt the so-called State Department definition of anti-Semitism. This definition conflates criticism of Israel with anti-Semitism and if adopted by the Department of Education would potentially turn human rights advocacy into a civil rights violation. The author of this definition, Kenneth Stern, has explicitly called on Congress not to pass this law, stating that such an adoption of the definition he helped draft in this setting would be to toxic the academy and unconstitutional.
This bill sailed through the Senate thanks a procedural maneuver that allowed it to passed by without an actual vote. It did not, however, sail through the House, because of strong opposition by civil liberties groups and Palestine human rights groups. It is expected to be reintroduced in the next session and BORDC/DDF will galvanize to oppose it.
This bill is not the first time those who wish to silence proponents of Palestinian human rights have attempted to hijack the Department of Education’s important role in safeguarding civil rights in higher education. Palestinian human rights advocacy on college campuses has been in the past targeted by an orchestrated effort to file complaints with Department of Education Office of Civil Rights alleging that political activity, such as a teach-in on the Israeli bombing of Gaza, creates a hostile environment for Jewish students. These claims have been consistently rejected by the Department of Education. Proponents of the Anti-Semitism Awareness Act hoped to change that in the future.
The trend of attempting to suppress Palestinian human rights activism is likely to continue in 2017. What form it will take may not be certain, but BORDC/DDF will be there to defend the right to dissent.