American anti-BDS Legislation Coming Under Heat in the Media and in Court

In Texas, legislation designed to ensure that suppliers of services to the state do not engage in anti-Israeli boycotts has resulted in the dismissal of a school speech pathologist, who has sued

Texas speech pathologist Bahia Amawi.
From The intercept

Legislation in the United States outlawing some activity in support for BDS, the anti-Israel boycott movement, is generating a backlash on the legal front and in the media.

As Congress works to head off a partial federal government shutdown on Friday, one piece of legislation in the spotlight is the Israel Anti-Boycott Act, sponsored by Democratic Senator Ben Cardin of Maryland, and Ohio Republican Senator Rob Portrman. The bill would impose criminal and civil penalties on American firms that participate in boycotts in support of Palestinian rights. The sponsors reportedly hope to tack it onto funding legislation that would head off the shutdown.

“Our bipartisan legislation is a direct response to highly selective and discriminatory efforts to isolate Israel, such as those by the UN Human Rights Council,” Mr. Portman said in a statement quoted by the New York Times.

Also in the spotlight is legislation in Texas, one of a number of states with laws outlawing some anti-Israel boycott activity. A Texas school speech pathologist, Bahia Amawi, who is of Palestinian descent, lost her job as a supplier of services to a Texas school district for refusing to sign a commitment to comply with the Texas law.

Anti-BDS laws have been passed in 26 U.S. states, according to The Forward newspaper, and generally seek to bar state governments from doing business with companies that boycott Israel.

"It would be more constructive if political leaders would focus on the injustice and finding viable solutions to the Israeli-Palestinian conflict rather than reinforcing divisions between the two parties and promoting legislation that raises free speech concerns," the New York Times wrote in a lead editorial on Wednesday.

For his part, Washington Post columnist David Von Drehle, wrote this week: "Israel and its friends can win the fight against BDS only through persuasion and example; outlawing dissent will never work." With regard to the Texas school speech therapist, he said: "As an American citizen, Bahia Amawi possesses a number of ironclad rights, the first of which — according to the Constitution — protects her freedom of speech. So when the Pflugerville, Tex., school district refused to renew her annual contract to provide speech therapy for its students because she was, in her view, exercising those rights, she responded like a true American. She sued."

The American Civil Liberties Union announced on Wednesday that it has filed a legal challenge to the law. The lawsuit was filed by the organization on behalf of four Texas citizens who had either lost their jobs because of the law, or were “forced” to sign it against their beliefs in order not to lose their income. The organization has also been critical the Israel Anti-Boycott Act, the federal bill sponsored by Senators Portman and Cardin.

Earlier this year, Cardin issued a statement in which he said: “We have welcomed the public discussions that have been essential in focusing this bipartisan legislation in such a way that definitively upholds the rights of individual Americans while clarifying decades-old legislation.” It quotes Portman as saying: “I am confident this bill strikes the right balance between protecting U.S. businesses and our Israeli allies from unfair targeting by international organization, while upholding America’s commitment to free speech and individual liberty.”

An ACLU analysis claimed, however, that it "leaves intact key provisions which would impose civil and criminal penalties on companies...."

Taking Portman and Cardin to task, the Times editorial board wrote: "In a properly functioning Congress, a matter of such moment would be openly debated. Instead, Mr. Cardin and Mr. Portman are trying to tack the BDS provision onto the lame-duck spending bill, meaning it could by enacted into law in the 11th-hour crush to keep the government fully open."

In a column critical of anti-BDS legislation, Batya Ungar-Sargon, the opinion editor of The Forward, wrote: "This is not to say that BDS is worthy of support. I, like many Jews, find BDS distasteful. I find its leaders morally unimpressive and its ranks full of anti-Semites, some of them Jews." But she added: "The entire point of the First Amendment is to protect the speech of people we despise (you don’t need the law to protect the speech of people you like). It’s something we Americans hold dear, and something we seem to recognize as crucial to our identity in all areas but Israel. It’s nothing short of a shonda [a disgrace] for Israel to be the one topic where Americans forget about their most dearly held values."