This has not been a good week for Democrats, especially those who wish to cast their party as the progressive alternative to the Trump-McConnell regime. As the feckless party leadership continued to avoid taking any action against Donald Trump for his numerous crimes—which go well beyond the Russia questions—they managed to find time to pass a bill opposing the right of U.S. citizens to use economic leverage to press for change in Israel-Palestine.
H. Res. 246, a nameless bill which declares the House of Representatives’ opposition to the movement for boycott, divestment, and sanctions (BDS) against Israel, passed with 398 in favor and only 17 (16 Democrats and one Republican) representatives voting against it. The bill was considerably weaker than the sort of legislation the American Israel Public Affairs Committee (AIPAC) had hoped to pass to criminalize BDS at the federal level. Those efforts ran afoul of free speech concerns among a wide variety of Congress members.
In the end, H. Res. 246 addressed those concerns sufficiently to attract the support of comparatively moderate Jewish groups such as J Street, Ameinu, Partners for Progressive Israel, the National Council of Jewish Women, and Reconstructing Judaism. But fundamental issues remained, and if we were having a rational discussion about BDS and U.S. policy toward Israel-Palestine in general, those issues would have been more of an obstacle.
A Civil Boycott
The bill attempts to resolve a fundamental contradiction between legislation that opposes—even if only rhetorically—a citizens’ boycott and the right to free speech. The First Amendment protects the free expression of ideas from governmental interference. It crucially and clearly distinguishes between government action and social or cultural actions to curtail free speech. This is why it was so ridiculous when Senator Marco Rubio (R-FL), in discussing his Senate anti-BDS bill from earlier this year, tweeted, “My bill doesn’t punish any political activity. It protects the right of local & state govts that decide to no longer do business with those who boycott #Israel. So boycotting #Israel is a constitutional right, but boycotting those participating in #BDS isn’t?”
Rubio failed to distinguish between government actions and those of private individuals or businesses. It was a distressing example of ignorance, willful or otherwise, of the most basic features of the First Amendment. H. Res. 246 does better, but still falls short. The House bill even went as far as to explicitly state, among the Resolve clauses, that the House “affirms the Constitutional right of United States citizens to free speech, including the right to protest or criticize the policies of the United States or foreign governments.”
Since the Supreme Court has ruled that boycotts are protected speech under the constitution, that statement implies, but does not explicitly point out, that the House affirms the right to boycott. The bill does nothing more than express the House’s opposition to BDS, it does not prescribe any penalties for it.
That’s better than Rubio’s bill, but it is still highly problematic. H. Res. 246 does not technically run afoul of the constitution because it does not enact a law that “abridges” freedom of speech. That insulates it against a legal challenge. But the ideal of speech free from government interference goes beyond mere legality. As a democratic political principle, free speech demands that the government also be restrained from discouraging protected speech.
The views expressed by the House are perfectly legitimate for pro-Israel advocates. But the government must take a different role. Politics may dictate policy, but it should not lead the government to prejudice an open political debate. It is not the place of the government to discourage political activism carried out in a legal and non-violent manner. That activism must be protected from government interference, including where the government discourages it without penalizing it. That is where H. Res. 246 fails.
This is perhaps the deepest concern about H. Res. 246. Government interference in a civil society boycott can blunt one of the few tools ordinary citizens have to press for change, especially when the change they want to see involves a foreign government or other entity, where they derive no power from the ballot box. It’s a key principle and, while the bill itself reiterates the protection of speech and protest, it does not explicitly affirm, as the Supreme Court has, the right to boycott.
Defending Activism for Palestinian Rights
Beyond the general principle, there is also a specific concern in the case of the Israel-Palestine issue. It’s perhaps best illustrated in a series of tweets sent out by Daniel Shapiro, former U.S. ambassador to Israel under Barack Obama. “An overwhelming, bipartisan statement against BDS,” Shapiro tweeted. “The BDS movement, in its essence, delegitimizes Israel’s existence, not policies. It is ahistorical, treating Israel as the sole actor responsible for the conflict, absolving Palestinians of their role.”
The problematic points in this tweet are, by now, quite familiar to anyone involved in pressing for Palestinian rights. The red herring of “delegitimization” comes first. The legitimacy of any country is an ephemeral concept with no basis in international law or diplomacy. Plenty of politics, especially in places that have experienced the forced displacement of large populations, deal with issues of crimes committed by a powerful state. The contention here is that the BDS movement’s demand for the right of return for Palestinian refugees necessarily means that Israel should not continue to exist as a “Jewish state.”
But that’s a legitimate political position for Palestinians to take, and therefore for their advocates to support. The U.S. government can, as a matter of policy, declare its support for Israel’s position, but trying to dampen the actions of private citizens in support of their own view is a step too far, and Shapiro should know that.
The idea that advocates for Palestinian rights are one-sided is a curious one to say the least. The current U.S. administration has an ambassador and two key negotiators who don’t just support Israeli settlers, they are active parts of that movement, and have acted as its agents in their official capacities. This administration has abandoned decades of bipartisan policies to bring horrifying pressure on the Palestinians. Yet Shapiro thinks the House needs to state its opposition to a purely pro-Palestinian civil society movement?
Israel has a well-established network, with powerful reach into both houses of Congress and the executive branch, to advocate for its position. Some pro-Israel groups see themselves as agents of peace and work with Palestinians who are aligned with their politics, such as J Street, Americans for Peace Now, and similar groups. But most pro-Israel groups’ talking points and messages are crafted to defend Israel and attack Palestinians. That’s typical for advocates, and the divide between moderate groups and more hawkish pro-Israel advocates like AIPAC, the American Jewish Committee, the Zionist Organization of America, Christians United for Israel and others is also common. Yet I don’t hear Shapiro expressing concern about their one-sided approach. It’s worth noting that BDS groups often state that their efforts are to promote universal human rights, including those of Israeli Jews, just as some pro-Israel groups sometimes express their concern for Palestinians.
Shapiro’s argument also incorporates the familiar effort to equalize both sides, to speak of the conflict as if it is between two reasonably equal parties rather than between an occupying power that maintains a “special relationship” with the world’s only superpower on one side and an occupied people, stateless and with few allies who pay anything more to their cause than charity and lip service, on the other.
“Opposing BDS doesn’t mean one can’t criticize Israeli policies, on settlements, demolitions, or other things,” Shapiro continued. “That’s all fair game. But it does reject the sweeping, one-sided approach of BDSers, which offers nothing that will help solve the conflict.”
These are also familiar talking points. It’s acceptable to criticize Israeli policies, especially those that the U.S. government itself has—with varying degrees of consistency—criticized. But taking concrete action against them is not. This, too, mimics decades of U.S. responses to those policies, but there is no reason why private citizens should simply accept that state of affairs. Private citizens have few tools for creating the change they envision in Israel-Palestine. Boycott is one of those few, and the U.S. government has no business trying to discourage its use if it believes in a truly democratic society.
As Jim Zogby, president of the Arab American Institute, tweeted in response, “Palestinians have already been punished by plenty of Congressional legislation. There are no restraints on the Israeli occupation – they have seized land, demolished homes, and built Jewish-only colonies and roads – with impunity. … BDS is the only non-violent tool Palestinians have.”
H. Res. 246 was a toothless bill, thanks to intense efforts over the past two years from a variety of groups to defend freedom of speech. The bill was modified to the point that it could pass legal muster. But that does not make it acceptable, not does it mean it is consistent with the principle of free speech.
Congress has, in the past, passed laws which impose penalties on the Palestinians for bringing cases to international legal bodies. It is doing as much as it can to oppose BDS. Meanwhile, Israel has expanded settlements, renounced the two-state solution, ignored the Arab Peace Initiative, tightened its occupation of the West Bank, turned Gaza into the world’s biggest open-air prison, and killed, injured, and imprisoned thousands upon thousands of Palestinians, including children.
That’s all horrifying, but it’s also worth asking: if the U.S. is impeding non-violent Palestinian responses while doing nothing to curtail Israeli impunity, just what kind of response are they steering the Palestinians towards? The answer is obvious and should be of concern to all of us.