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If Congress were considering legislation prohibiting boycotts directed against gays, women or Muslim owned companies, would Senator Bernie Sanders be arguing that such a ban would violate the First Amendment? If Congress were considering legislation prohibiting companies from boycotting majority Muslim countries, would Rashida Tlaib be accusing its supporters of dual loyalty?
American laws have long dealt with discrimination based on sexual orientation, race, gender and national origin. Our laws prohibited compliance with the Nazi boycott of Jewish businesses in the 1930's and the Arab boycotts of the 1950's and 1960's. Now Congress is considering legislation dealing with companies that boycott only the nation state of the Jewish people, and only Jews within Israel. To single out only the "Jew among nations," and not the dozens of far more serious violators of human rights is bigotry pure and simple, and those who support BDS [boycotts divestments and sanctions against Israel] only against Israel are guilty of bigotry.
Some supporters of BDS claim that it is a protest tactic designed to put pressure on Israel to change its policies. That is not what the leaders of BDS say. Their goal is the elimination of Israel and its replacement by a Palestinian state "from the river to the sea."*
So long as these anti-BDS statutes do not prohibit advocacy of such boycotts, but focus instead on the commercial activities themselves – namely the economic boycotts – there are no serious freedom of speech concerns. The First Amendment protects freedom of speech, not freedom to discriminate economically based on invidious classifications. There are close questions, as evidenced by the difficult case involving a baker's refusal to design a cake for a gay wedding, based on the baker's claimed religious beliefs. But it is not a close case to prevent the bigot from renting an apartment to a black couple or even from advertising that he rents to whites only. I have in my collection postcards from Miami Beach hotels, as recently as the 1950's, advertising "restricted clientele," "discriminating clients," or "gentile clientele only." These were euphemisms for "no Jews allowed." Or as one hotel brazenly put it: "Always a view, never a Jew." Similar advertisements were directed against Irish-Americans, Italian-Americans, African-Americans and other minorities. These advertisements would be illegal today despite the fact that they take the form of words. The First Amendment permits a hotel owner to advocate a return to "gentiles only," or "whites only" hotels, but it does not protect the act of discrimination itself or boycotting based on religion or national origin.
On which side of this Constitutional line does anti-BDS legislation fall? That depends on the precise wording of the statute. If the law prohibits advocacy, it is unconstitutional. If it prohibits economic discrimination based on religion or national origin, it is constitutional.
What is unacceptable is discriminatory actions, and nothing can be more discriminatory than singling out an ally with one of the best records of human rights in the world for a boycott, while continuing to do business with the worst human rights offenders in the world. Many of the same bigots who support BDS against Israel, oppose boycotting Cuba, Iran, China, Russia, Venezuela, Syria, Saudi Arabia and other human rights violators. Legislation designed to end such discriminatory actions would be constitutional, if it did not prohibit advocacy.
Tlaib argues that "boycotting is a right and part of our historical fight for freedom and equality." Would she have supported, in the name of equality, the right of white bigots to boycott Black owned stores in the South or Black apartment renters in the North? Would she support the right of homophobes to boycott gay owned stores? Or the right of anti-Muslim bigots to boycott Muslim-owned stores or products from Muslim nations? If she were to support legislation prohibiting anti-Palestinian boycotts, how would she respond to an accusation that she "forgot what country" she represents? Her accusation that supporters of anti-BDS legislation "forgot what country" they represent invoked the old canard of dual loyalty, which is directed only against Jews. No one has accused Tlaib of forgetting what country she represents when she supports the Palestinian cause, even though Palestinian terrorists, acting in the name of "Palestine," have killed numerous Americans. Americans of any religion have the right to support Israel, and most do, without being accused of disloyalty, just as Americans of any religion have the right to support the Palestinian cause. It is both bigoted and hypocritical to apply a different standard to Jews who support Israel than to Muslims who support the Palestinian cause.
Hypocrisy and bigotry go hand in hand, and Congresswoman Rashida Tlaib is the poster person for both. If she is the "new face" of the Democratic Party, we Democrats should begin worrying.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case against the Democratic House Impeaching Trump, Hot Books, January 2, 2019 , and a Distinguished Senior Fellow of Gatestone Institute.
* The Case Against BDS by Alan M. Dershowitz, page 10.