Anti-BDS bill: The right to boycott is part of the US 'constitution'

In my first year of law school, I remember what my constitutional law professor told us. Sure, founders used the word “Constitution” as the title of our nation’s founding document. It’s right there in the preamble. But the word “constitution” has an even deeper, albeit simple, meaning: “It’s what you’re made up of.” It is, as the dictionary tells us, the “nature of something”.

There has perhaps been no clearer example of a law contrary to our constitution (and our Constitution) than the Senate’s latest Marco Rubio-sponsored bill on the Boycott, Divestment and Sanctions (BDS) movement.

Established in 2005 by Palestinian civil society to encourage individuals, nations and organisations to boycott Israel over its consistent violations of international law, BDS was inspired by the South African movement that led to the end of apartheid in that nation. 

People may wish to engage in intellectual discussions about the movement’s usefulness, value or practicality - but when it comes to the First Amendment of the US Constitution, the bedrock of American free speech, there can be no debate about its legality. 

First Amendment values

The Supreme Court has made this clear. In the 1960s, a local Mississippi chapter of the National Association for the Advancement of Colored People (NAACP) instituted a boycott of white merchants after local authorities in Claiborne County ignored their calls for equality and integration.

The merchants sued the protesters, and after a lengthy procedural history, the Supreme Court ruled in 1982 that the boycotters were not liable for the merchants’ losses, noting that such expression resided on “the highest rung of the hierarchy of First Amendment values”. 

In other words, the right to engage in nonviolent political activity, including boycotts, is part of the country now. It’s part of our constitution.

It’s pretty straightforward: The state cannot, through law or action, pick and choose which Americans to favour based on their political viewpoints

The legislation pushed by Rubio expressly violates this core principle. To his credit, Rubio has not hidden the bill’s intent, titling the pertinent provision the “Combating BDS Act of 2019”. The proposed law explicitly states that state and local governments may refuse to do business with entities that endorse BDS, regardless of any other provision of law. Unfortunately for Rubio, the First Amendment doesn’t really operate in that fashion.

The First Amendment tells us that “Congress shall make no law… abridging the freedom of speech… or the right of the people peaceably to assemble”. The Fourteenth Amendment extends this principle to all state and local governments, including their agencies and arms. It’s pretty straightforward: The state cannot, through law or action, pick and choose which Americans to favour based on their political viewpoints.

Rubio gets it wrong

Rubio has utilized Twitter, quite clumsily, to explain how he thinks the First Amendment should work. “Companies are FREE to boycott Israel,” he tweeted. “But local & state governments should be FREE to end contracts with companies that do.” Nope. That’s not how it works. The same tweet claimed that “shielding BDS from counter-boycotts is de facto support of BDS”; in reality, shielding BDS from a government counter-boycott is a celebration of the First Amendment.

In another tweet, Rubio noted: “If boycotting #Israel is constitutionally protected, then boycotting companies that boycott #Israel is also constitutionally protected.”

This one is especially confusing. If boycotting Israel is constitutionally protected, then, actually, a law allowing the government to discriminate against those who participate in a boycott of Israel is unconstitutional. That’s right in the Constitution.

Um, yes, it does. The Supreme Court said so. “It protects the right of local & state govts that decide to no longer do business with those who boycott #Israel.” Here’s the thing: State and local governments don’t have that right, at least not when “those” are American.

We all remember the 2013 scandal, when the Internal Revenue Service (IRS) seemed to discriminate against US organisations based on their conservative political affiliations. Upon hearing the news, former President Barack Obama proclaimed: “I will not tolerate it.”

He urged full accountability. Rubio labeled the IRS’s actions as an “outrageous abuse of power”, and even took to the Senate floor to affirm: “When government’s powers extend beyond its natural limits or important limits, you start to have problems like this emerge.”

‘I’m just not going to speak out’

“Natural limits.” Like “the nature of something”. Or "constitution". 

The IRS was sending targeted letters to conservative groups, questioning their nonprofit status.

Rubio called the agency out: “Think about the application this has had on the lives of everyday Americans who one day decided ‘I want to get involved in politics. I want to speak out. I want to say something.’ And you get hit with a letter like this… they just decide, ‘I’m not going to do it, I’m just not going to speak out, I’m not going to get involved, I don’t have the time for this and I don’t need the hassle.’ Maybe that was the intent.”

Preach, brother. I agree with Rubio, at least the 2013 version of him. The government should not be picking winners and losers based on political viewpoints. Does anyone want a US where the government gives you more or less favour based on whether you’re pro-life or pro-choice? Pro-gun control or pro-NRA? Democrat or Republican?

The right to boycott, like other rights concerning nonviolent political expression, is sacred, enshrined in our founding history. It’s part of who we are. It’s our constitution. And nothing should change that.

- Amer Zahr is a comedian, writer and adjunct professor at the University of Detroit Mercy School of Law.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Photo: A man attends a protest rally organized by the Boycott, Divestment, Sanctions (BDS) movement on 28 June, 2018 in font of Agora in Montpellier, southern France (AFP)