Anti-BDS Laws in the United States started to gain prominence as a response to the Palestinian-led BDS (Boycott Divestments and Sanctions) movement. Proponents of the BDS movement argue that BDS is a nonviolent, morally righteous way to protest Israel’s continuous human rights violations. Proponents of Anti-BDS laws claim that the movement is antisemitic and is seeking to erase the state of Israel.
The BDS movement was founded by Omar Barghouti back in 2005. It took inspiration from groups like the Anti-Apartheid movement, which played a pivotal role in building international awareness and action that ultimately ended the apartheid in South Africa.
Though it officially began in 2005, Palestinian activists were collaborating with Anti-Apartheid veterans since 2001. Because the two groups saw parallels between South Africa’s apartheid and the treatment of Palestinians, these veterans played a key role in the formation of the BDS movement.
What Is BDS Exactly?
The goal of the movement is to build international awareness of Israel’s human rights violations and turn that into collective action in the form of boycotting, divesting, or sanctioning companies that profit from Israel’s apartheid or operate within occupied territories like the West Bank.
The movement has made significant strides internationally. In 2015 it was estimated that the movement cost French conglomerate Veolia around $20 billion for its involvement in Jerusalem Light Rail (which runs through part of East Jerusalem).
G4S is the world’s largest security company and was pressured into selling off one of its Israeli subsidiaries in 2016. BDS South Africa successfully led a boycott against the large retail chain Woolworths in 2014. BDS has also campaigned against the technology company HP (Hewlett-Packard) for selling Israel biometric ID systems that are used to restrict Palestinians right to freedom of movement, along with running the servers for the Israeli prison system.
Almost every single country in the world has deemed the BDS movement to be legal. Every single nation the movement operates in has deemed that boycotts, divestments and sanctions are forms of free speech, with two exceptions—Israel and the United States.
What Is Anti-BDS Legislation?
The same year the French conglomerate Veolia sold off its last stake in City Pass (a subsidiary that had contracts with Jerusalem Light Rail), Illinois became the first state to pass Anti-BDS legislation. Bill SB 1761 passed unanimously in both houses of the Illinois state legislator and would penalize companies they found to be “engaging in actions that are politically motivated and are intended to penalize, inflict economic harm on, or otherwise limit commercial relations with the State of Israel or companies based in the State of Israel or in territories controlled by the State of Israel.”
Nearly ten years later and 37 states in the US have now passed similar legislation that usually comes in one of two forms, the first being state contractors are forced to sign a contract saying that they will not boycott the state of Israel. The next mandates that public investment funds avoid companies that boycott Israel.
To give you an idea of how some of these laws impact Americans, you can look at the story of Palestinian American Bahia Amawi. She was fired from her job as a school speech pathologist in Texas because when she went to renew her contract, she refused to promise not to boycott Israel. A teacher was fired for a political belief that went against the government.
Responses and Criticism
37 different states passing a series of similar laws in less than ten years is light year level legislative speed in the slow moving, sludge filled halls of American politics. The reason these laws were able to be passed so quickly, and why they are all worded similarly, is because there has been a concentrated effort from lobbyists.
An award-winning investigating series by The Center for Public Integrity back in 2019 and a 2023 documentary Boycott explore the interest groups pushing anti-BDS legislation across America’s state legislators. The investigative series was entitled “Copy and Paste Legislation” it lays out exactly what the title suggests. Pro-Israeli and conservative Evangelical groups in the US, like the American Legislative Exchange Council (ALEC), have been essentially drafting anti-BDS legislation and feeding it to friendly state legislators.
Critics of Anti-BDS legislation range from Palestinian rights activists to constitutional scholars. An article published in a 2018 Columbia Law Journal states: “many of the anti-BDS laws likely run afoul of the First Amendment by imposing unconstitutional conditions on government contractors and/or beneficiaries of public funding.”
The Center for Public Integrity’s “Copy, Paste, Legislate” series also details how the American Civil Liberties Union and Council on American-Islamic Relations have filed “a slew” of lawsuits relating to anti BDS laws. The legal pushback has seen some small victories.
The original law in Texas that got Bahia Amawi fired was amended in 2019 to avoid targeting individuals and only apply to companies applying or bidding for contracts greater than $100,000. Overall, however, groups like ALEC have been able to outspend and out-lobby any meaningful change.
The Supreme Court Case NAACP v. Claiborne Hardware Co. (1982) made a clear ruling that boycotting is a protected form of free speech. Several federal courts have struck down rulings in favor of Anti-BDS laws, but none of these cases have made it to the most conservative Supreme Court we have seen in recent years.
Proponents of Anti-BDS legislation like to cite that it is illegal to discriminate based on race and argue that the BDS movement targets Jews. Ironically, their solution to this seems to be to discriminate against people for their political beliefs.
