Why N.J. shouldn’t block freedom of speech in Israeli boycott debate

Original Article

New Jersey residents may be surprised to learn that state lawmakers are currently considering two bills intended to abridge the freedom of speech.

 Assembly Bill 2940 conditions the receipt of state funding for higher education initiatives on an organization’s agreement not to abide by boycotts or divestment campaigns related to Israeli human rights abuses, while Assembly Bill 925 prohibits the investment of New Jersey public retirement funds in such entities.

The bill would prohibit the government worker pension fund from investing in companies that boycott Israel.For over 50 years, Palestinians in the occupied territories have been living under Israeli military control. Palestinians are denied the right to protest peacefully, the right to travel and the right to economic and social development. Israel continues to confiscate Palestinian land to build and expand illegal settlements, demolishing homes and uprooting crops, restricting movement, and committing numerous other abuses, as has been thoroughly documented by human rights groups.

Palestinian citizens of Israel, who make up about 20 percent of the population, do not fare much better. They are subjected to systemic institutional discrimination. Non-Jewish Israeli citizens are legally excluded from living in more than 400 Jewish communities. There are dozens of Israeli laws that discriminate against Palestinian citizens of the state in employment, education, housing and land ownership.

Inspired by the U.S. civil-rights and South African anti-apartheid movements, the Boycott, Divestment and Sanction (BDS) movement seeks to pressure Israel to end its occupation of Palestinian territories and comply with international law.

Boycotts in the 20^th century have consistently resulted in historic social and political change. The Montgomery Bus Boycott, in which African Americans refused to ride city buses in Alabama, to protest racial segregation, was one of the sparks that ignited the Civil Rights movement. In the 1960s, Cesar Chavez and the United Farm Workers Union led a grape boycott that effectively highlighted the plight of American farm workers. Harvey Milk successfully organized the LGBT community to boycott businesses that discriminated against them in San Francisco.

Internationally, the Anti-Apartheid boycotts in the 1980s were instrumental in ending racial segregation in South Africa. These are but a few examples of peaceful boycott activism that has proven effective against injustices and human rights abuses.

A large and growing number of Americans and American institutions and associations support the BDS movement.

Mainstream Christian denominations like the United Methodists, the Presbyterian Church (USA) and the United Church of Christ have all endorsed elements of BDS. Numerous academic associations, university student governments, labor groups and others have similarly supported BDS. Such actions are similar to institutional actions taken to support the struggle of African-Americans for equal rights. It would have been unthinkable for a state legislature to suppress a citizen’s right to participate in anti-racism activities sponsored by these organizations.

It is well established that boycotts are a recognized form of political speech. Both of these bills are unconstitutional as a restraint on speech. Recently, the United States Supreme Court affirmed that requiring organizations receiving government funding to hold or reject a particular social policy or political position violates First Amendment free speech protections.

The New Jersey bills make it a condition that recipients espouse the government’s anti-BDS position, a subject of fierce international and domestic debate. This cannot be reconciled with the First Amendment.

The bills declare that opposition or critique of any “actions of the state of Israel” is an exception to the First Amendment rights of New Jersey residents and institutions.  Advocating for boycotts in support of Palestinian rights and freedom should not be an exception to the First Amendment. 

The Israeli occupation and institutional discrimination against Palestinians is an issue of great public concern.

Long ago, Justice William J. Brennan observed that America has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Justice Oliver Wendell Holmes Jr. earlier called this principle the “best test of truth.”

Robust public debate, including the exercise of the right to boycott, is a corner stone of the health and sustainability of our democracy and civil society. I urge New Jersey lawmakers to stand with our constitutional freedoms by voting against these two unconstitutional bills.

Related Articles:

Bill would cut pension ties with businesses boycotting Israel

Public worker pensions drawn into Israeli boycott fight

Abed Awad is a Hasbrouck Heights-based attorney. His practice focuses on general civil litigation and business advice, including Islamic law and international law.

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