Discrimination against the Jewish state isn't free speech

It sounds outrageous. A speech pathologist in a Texas school district was asked to sign a pro-Israel pledge. If she refused to go along, she would lose her job. Described in that way, the district was infringing on her First Amendment right of free speech and involving the state in a political debate where, regardless of the merits of the argument, it had no business intervening.

That's how The Washington Post described the dilemma facing Bahia Amawi, a specialist who has worked for the Pflugerville Independent School District since 2009 as an independent contractor. But when she received a new annual contract this past September, it included a provision that she promise not to boycott Israel and would not do so while working for the school.

Amawi, an American citizen of Palestinian descent who was born in Austria, was offended by this demand since she believed it infringed on her right to express her beliefs about Israel and the Palestinians. She refused to sign and lost her position. Now she's suing in federal court and getting favorable press coverage.

Seen in that way, the law is unconstitutional. While that's the position the American Civil Liberties Union is taking, Amawi and the ACLU are misrepresenting Texas's anti-BDS law. Far from an attack on a bedrock constitutional principle, such laws that have been passed by Texas and 25 other states are actually protecting another core value of U.S. law: the prohibition of discriminatory commercial conduct.

Opponents of anti-BDS laws claim that they are a form of political compulsion. Some go further and assert that they are a right-wing version of virtue signaling that indicates fealty to pro-Israel positions and the policies of the Israeli government on a host of issues.

But that misrepresents both BDS and anti-BDS laws.

The purpose of BDS is not to protest the Israeli government's policies or promote a two-state solution to the conflict. To the contrary, as BDS supporters make clear, what they want is no Israel at all. Like anti-Zionism, BDS sometimes masquerades as human-rights advocacy, but it is a cause that seeks to eliminate the one Jewish state on the planet and to deny its people rights—such as self-determination and self-defense—that they seek to deny to no one else. As such, it is a form of discrimination against Jews, i.e. anti-Semitism.

Advocacy for Israel's elimination can be construed as a form of hate speech. When those, like Temple University Professor and former CNN commentator Marc Lamont Hill, call for a "free Palestine from the river to the sea" they are, in effect, cheering on the efforts of terrorist groups like Hamas. They seek to achieve this end by violence and are also leaving open the question of what happens to the millions of Jews who live there once they are, in their fantasy in which this nightmare becomes a reality, subjected to the rule of Palestinian terror groups.

Yet the First Amendment protects even hateful speech. So, if she wishes, Bahia Amawi can call for Israel's destruction or support the Palestinian cause as much as she likes in either the public or private spheres, and it would have no impact on her employment, at least as far as the anti-BDS law is concerned.

What she—or any other vendor doing business with the state of Texas or its various agencies—cannot do is engage in discriminatory commercial conduct. It is well understood that those who wish to be connected to the state government in this manner cannot expect to do business in such a way as to discriminate against African-Americans, Hispanics or other minority groups without running afoul of the law. What anti-BDS laws do is to extend those protections to Israel and Israelis because they are subject to an international campaign of discrimination that is indistinguishable from anti-Semitism.

By making the pledge that the school district asked her to make, all Amawi would be doing is saying that she wasn't going to refuse to do business with the State of Israel or Israelis in the same way that she would be expected not to discriminate against anyone else with whom she might happen to have a commercial transaction. It may be a stretch to ask this of a speech pathologist, as opposed to a company that engages in international trade or an academic institution where such boycotts are more common. But what Amawi and her supporters really want is to not so much to protect her right to oppose Israel, but to delegitimize efforts to combat discriminatory commercial conduct.

Political speech is broadly defined in American law, and the courts have chosen to include activity like flag-burning or paying for political advertisements under that rubric. But it has never been defined as granting impunity to those who wish to discriminate against religious or racial groups in the course of conducting business transactions in this way.

There is, after all, a precedent for anti-BDS laws. In 1977, Congress passed laws to punish businesses that participated in the Arab boycott of Israel that started when then Jewish state was born and succeeded in isolating it for decades. That boycott eventually failed because the United States made it clear that those who complied with demands to discriminate against Israel and Jews via secondary and tertiary boycotts were in violation of U.S. law.

It is true that the issue here has been muddied by efforts to include boycotts of West Bank settlements in BDS bans. But even there, it should be remembered that BDS supporters do not make a distinction between the most remote outposts and pre-1967 Israel. That means that those seeking to oppose these laws are still, in effect, defending a broad form of discrimination, rather than a narrow political protest.

That's why those who seek to roll back anti-BDS laws aren't defending free speech. Instead, they are trying to legitimize the sort of behavior that liberal groups like the ACLU wouldn't think of supporting were the targets anyone other than a Jewish state and its citizens.

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Jonathan S. Tobin is editor in chief of Jewish News Service. He's been a JWR contributor since 1998.