History has demonstrated that boycotts can be powerful agents of change. In our country, they have most famously been features of the civil rights movement and of protests against the former apartheid regime of South Africa. Yet, increasingly, anti-BDS legislation (BDS stands for “boycott, divest, and sanction”) is being introduced — and in at least 25 states passed — that would prohibit those who contract with agencies of the government, including state universities, from boycotting Israel.
These bills typically target boycotts of Israel under the theory that such boycotts discriminate against Jewish people. FIRE opposes those measures when they apply to state universities because of their implications for the free speech of individuals who wish to engage in such a boycott. At the same time, as FIRE President and CEO Greg Lukianoff wrote back in 2015, FIRE also opposes academic boycotts of Israel that “would require American academics not to cooperate with Israeli scholars or institutions,” as they are “incompatible with academic freedom.”
Legislation that punishes individuals who engage in boycotts of perceived injustices at home and abroad ignores this history and violates the First Amendment.
It is against this backdrop that several members of Congress have introduced a resolution that defends the right to boycott as an important aspect of the right to free speech protected under the First Amendment. House Resolution 496 affirms “that all Americans have the right to participate in boycotts in pursuit of civil and human rights at home and abroad, as protected by the First Amendment to the Constitution.”
In support of this proposition, the resolution, introduced by Representatives Ilhan Omar, Rashida Tlaib, and John Lewis, describes the role boycotts have played in the advancement of our nation’s civil rights. It reads:
Whereas boycotts have been effectively used in the United States by advocates for equal rights since the Boston Tea Party and include boycotts led by civil rights activists during the 1950s and 1960s in order to advocate for racial equality, such as the Montgomery bus boycott, and promote workers’ rights, such as the United Farm Workers-led boycott of table grapes;
It then continues by providing examples where Americans used boycotts to pressure international actors who were violating international human rights:
Whereas Americans of conscience have a proud history of participating in boycotts to advocate for human rights abroad, including—
(1) attempting to slow Japanese aggression in the Pacific by boycotting Imperial Japan in 1937 and 1938;
(2) boycotting Nazi Germany from March 1933 to October 1941 in response to the dehumanization of the Jewish people in the lead-up to the Holocaust;
(3) the United States Olympic Committee boycotting the 1980 summer Olympics in Moscow in protest of the Soviet invasion of Afghanistan in the preceding year; and
(4) leading the campaign in the 1980s to boycott South African goods in opposition to apartheid in that country;
While any legislation on this issue will undoubtedly prove controversial simply because of the political landscape, the resolution warrants support. Legislation that punishes individuals who engage in boycotts of perceived injustices at home and abroad ignores this history and violates the First Amendment. Indeed, federal courts in Texas, Kansas, and Arizona have issued injunctions barring enforcement of those states’ anti-BDS statutes. FIRE recently joined an amicus curiae brief with the Institute for Free Speech in the U.S. Court of Appeals for the Eighth Circuit in support of appellant Arkansas Times LP’s challenge to Arkansas’ similar statute.
Of course, FIRE takes no position on whether Israel — or any other country, for that matter — deserves to be boycotted.
Instead of punishing individuals who engage in boycotts by foreclosing eligibility for government contracts, lawmakers should protect people’s right to follow their own consciences. They should support people’s right to engage in boycotts, but make clear that public universities cannot force unwilling participation in those campaigns.