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Campaign to Criminalize Criticism of Israel Challenges Both Free Speech and Jewish Values

Allan C. Brownfeld
Winter 2019

Freedom of speech and the right to dissent is under attack by AIPAC, most of the organized American Jewish community and casino mogul Sheldon Adelson, the Republican Party’s single largest contributor. The goal is to make it illegal to advocate a boycott of Israel in protest of its more than fifty years of illegal occupation of the West Bank and East Jerusalem, and its mistreatment of Palestinians.  
This effort is being conducted both on the federal and state levels. Already, 26 states have enacted such laws, In the last Congress, legislation introduced in the Senate, called the Anti-Boycott Act, was co-sponsored by Sens. Ben Cardin (D-MD) and Rob Portman (R-OH). The New York Times (Dec.20, 2018) editorially characterized the legislation this way: “...clearly a part of a widening attempt to silence one side of the debate. That is not in the interest of Israel, the United States or their shared democratic traditions.”  
The growth of the BDS movement, which is the target of this legislation and that in the states, is, in the Times’ view, a reaction to Israel’s move away from a peaceful settlement, and includes many Jews in its ranks: “...the hard-line policies of Israel’s prime minister, Benjamin Netanyahu, including expanding settlements and an unwillingness to seriously pursue a peace solution that would allow Palestinians their own state, have provoked a backlash and are fueling the boycott movement. It is not only Israel’s adversaries who find the movement appealing. Many devoted supporters of Israel, including many American Jews, oppose the occupation of the West Bank and refuse to buy products of the settlements in occupied territories. Their right to protest in this way must be vigorously defended.”  
Right of free speech  
Sen Diane Feinstein (D-CA) and Sen. Bernie Sanders (I-VT) issued a joint statement: “While we do not support the BDS movement, we remain resolved to our constitutional oath to defend the right of every American to express their views peacefully without the threat of or actual punishment by the government.”  
This legislation failed in the last Congress, but was introduced in the new Congress in January as part of a larger bill. The bill fell three votes shy of the 60 needed to overcome a filibuster. Republicans made it clear they weren’t giving up, and planned more votes in the days ahead. A rare Republican dissenter was Sen.Rand Paul (R-KY).He declared: “I am not in favor of boycotting Israel...At the same time, I am concerned about what the role of Congress can and should be in this situation. I strongly oppose any legislation that attempts to ban boycotts or ban people who support boycotts from participating in our government or working for our government. We must be very, very careful here to not let our dislike for something cloud our judgment..America is the land of freedom of expression and the hallmark of a truly free country is that it allows expressions, speech and actions that we don’t agree with.”  
America has a long history of embracing peaceful boycotts. It was founded amidst a boycott of English tea. Abolitionists boycotted goods produced by slaves. Rosa Parks led a boycott against segregated buses in Montgomery, Alabama. The bus boycott lasted for 382 days in 1955 and 1956. More recently, a peaceful boycott helped bring down apartheid in South Africa. In the case of NAACP v. Claiborne Co.(1982), the Supreme Court held that the economic boycott of white-owned businesses by blacks was entitled to First Amendment protection. It argued that, a “non-violent , politically motivated boycott” was political speech and was, therefore, protected.  
Case of a Texas speech pathologist  
Consider the extremes to which the laws in 26 states now go in criminalizing criticism of Israel, The Texas case of Bahia Amawi is typical. A children’s speech pathologist who has worked for the past 9 years with developmentally disabled, autistic and speech-impaired elementary school children in Austin, Texas has been told that she can no longer work with the public school district after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel, or “otherwise take any action that is intended to inflict economic harm” on that foreign country.  
A lawsuit on her behalf was filed in December in a federal district court alleging a violation of her First Amendment right of free speech. Discussing the oath Amawi refused to sign, Glenn Greenwald provided this assessment in The Intercept (Dec. 21, 2018): “The language reads like Orwellian---or McCarthyite---self-parody, the classic political loyalty oath that every American should instinctively shudder upon reading...The received certification about Israel was the only one in the contract that pertained to political opinions or activism. In order to get a contract in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children and even support a boycott of particular U.S. states---such as was done in 2017---to North Carolina---in protest of its anti-LGBT law---to continue to work.”  
Grennwald points out that, “The sole political affirmation Texans are to sign in order to work with the school district’s children is to protect the economic interests not of the U.S. or Texas --but Israel. The anti-BDS oath is the result of an Israel-specific state law enacted on May 2, 2017 by the Texas State Legislature....when Gov. Greg Abbott signed the bill at a ceremony at the Austin Jewish Community Center, he said, ‘Any anti-Israel policy is an anti-Texas policy, ’”  
Federal courts support challengers  
The federal courts have agreed with those challenging these laws, In September 2018, a federal court blocked Arizona from enforcing a law requiring state contractors to certify that they are not participating in boycotts of Israel, The court agreed with the American Civil Liberties Union (ACLU) that the law was likely in contravention of the contractor’s free speech rights under the First Amendment. “A restriction of one’s ability to participate in collective calls against Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott, ” U.S. District Judge Diane J. Humetewa wrote in her decision giving a preliminary injunction against the law.  
This is the second federal court to consider this type of boycott ban and they both came to the same conclusion, In a case concerning a similar law in Kansas, the court held that the First Amendment protects the right of citizens “to band together” and “express collectively their dissatisfaction with the injustice and violence they perceive as experienced by the Palestinians and Israeli citizens.”  
In the Kansas case, a public school teacher was asked to disavow a boycott of Israel as a condition of maintaining her position with the Kansas Department of Education’s Math and Science Partnership Program. The teacher, Esther Koontz, is a Mennonite and is married to a Mennonite minister, She is committed to following the church’s July 2017 resolution “to avoid economic support for the military occupation of the Palestinian Territories.” The resolution also called on Mennonites “to examine the legacy of anti-Semitism in their own history and life.” Similar divestment and boycott motions have been adopted by the Presbyterian Church USA, the United Church of Christ and the United Methodist Church.  
An ideological litmus test  
ACLU attorney Brian Hauss says that, “The First Amendment prohibits the government from using its financial leverage to impose an ideological litmus test. The law is an unconstitutional attempt by government to silence one side of a public debate by coercing people not to express their beliefs, including through participation in a political boycott.”  
A 9-year veteran of Wichita public schools, Koontz, a math teacher, now develops school curricula and trains teachers. She was asked to sign the anti-boycott certification as part of her engagement with the Kansas Department of Education’s Math and Science Partnership Program. “You don’t need to share my beliefs or agree with my decisions to understand that this law violates my free speech rights, ” says Koontz, “The state should not be telling people what causes they can or can’t support. I’m disappointed that I can’t be a math teacher for the state of Kansas because of my political views about human rights across the globe. I am convinced that this boycott could help bring about an end to the Israeli government’s occupation in the same way those tactics helped dismantle apartheid in South Africa.”  
The Israeli magazine +972 reports that, “The state level campaign to silence BDS activists is part of a nationwide campaign by groups like StandWithUs and the Emergency Committee for Israel...The drive is supported, in part, by the Israeli government, which has committed millions of dollars to marketing products targeted by the hoycott, including those produced on illegal settlements on the West Bank.”  
Writing in the Israeli newspaper Haaretz, the ACLU’s Brian Hauss declared: “From the Boston Tea Party to the Montgomery Bus Boycott to the campaign to divest from businesses operating in apartheid South Africa, political boycotts have been a proud part of this country’s tradition.”  
The First Amendment is alive and well  
The ACLU declared that, “The Kansas and Arizona decisions sent a clear message: The First Amendment right to boycott is alive and well. But our work is far from over, Similar contract requirements are on the books in 24 other states . All of these laws violate the First Amendment.”  
Other challenges to such laws are on the way. In January, Marylsnd’s ban on contracting with businesses that boycott Israel was challenged by a soft-ware engineer who advocates for Palestinian rights. He is represented by the Council on American-Islamic Relations (CAIR) which seeks to block the state from enforcing an executive order that Governor Larry Hogan (R) signed in October 2017. The order requires contractors to to certify in writing that they don’t boycott Israel. CAIR argues that this ban tramples on First Amendment rights.  
Legal scholars on both the right and left agree that these laws criminalizing criticism of Israel are in violation of the First Amendment. Walter Olson, a senior fellow at the Cato Institute Center for Constitutional Studies, expressed the widely shared view that, “It is not a proper function of law to force Americans into carrying on foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad or arbitrary.”  
As is always the case when Israel is challenged in any way, charges of “anti-Semitism” are almost immediately heard. When the U.S. Senate failed to pass legislation which, among other things, would have authorized state and local governments to refuse to do business with companies that hoycott Israel or Israeli-linked companies to protest the country’s occupation of the West Bank and East Jerusalem, The Washington Times reported that, “Some Republicans said the vote smacked of anti-Semitiism.” Sen. Kevin Cramer (R-ND) said that Democrats who voted against the bill were caving in to anti-Israel activists on the left. He declared: “The bill’s growing opposition from Senate Democrats may be nothing more than a thinly veiled attempt to hide the rising anti-Semitism in their own party.”  
What country do they represent?  
In January, newly elected Rep. Rashid Tlaib (D-MI), one of two Moslems elected to Congress for the first time, and an advocate of the BDS movement, stirred controversy with her criticism of a Senate bill legitimizing state efforts to criminalize support for boycotts of Israel. After the Senate vote---in which the bill failed---she declared, “They forgot what country they represent. This is the U, S, where boycotting is a right and part of our historical fight for freedom and equality, Maybe a refresher on our U.S. Constitution is in order...”  
This comment met with a fierce backlash from supporters of the anti-BDS legislation, led by Sen. Marco Rubio (R-FL), who accused her of perpetuating anti-Semitic stereotypes about the “dual loyalty” of the American Jewish community. Sen. Rubio, the sponsor of the bill, declared that, “This ‘dual-loyalty’ canard is a typical anti-Semitic line.” In response, Rep, Tlaib noted that she was not in any way referring to American Jews but that her statement “was critical of U.S.senators like yourself, who are seeking to strip Americans of their constitutional right to free speech.”  
For many years, Israel and its fervent supporters in the U.S. have tried to stifle criticism of Israel by referring to critics as “anti-Semites.” Those who have been labeled in this way include not only many Jewish critics of Israel, but public figures such as former Presidents Jimmy Carter and Barack Obama, and former Secretary of State John Kerry. The tactic of equating opposition to Zionism or criticism of Israel with “anti-Semitism” is of diminishing utility to its practitioners as this tactic has come undervincreasing scrutiny.  
“Anti-Zionism is not Anti-Semitism”  
In a column with the headline “Anti-Zionism Is Not Anti-Semitism.” Michelle Goldberg provided this analysis in The New York Times (Dec.7, 2018): “The conflation of anti-Zionism with anti-Semitism is a bit of rhetorical sleight of hand that depends on treating Israel as the embodiment of the Jewish people everywhere. Certainly, some criticism of Israel is anti-Semitic, but it’s entirely possible to oppose Jewish ethno-nationalism without being a bigot. Indeed, it’s increasingly absurd to treat the Israeli state as a stand-in for Jews writ large, given the way the current Israeli government has aligned itself with far-right European movements that have anti-Semitic roots. Right-wing anti-Semites have sometimes supported Zionism because they don’t want Jews in their own countries---a notable example is the Polish government in the 1930s.”  
Beyond this, she notes, “There’s a long history of Jewish anti-Zionism or non-Zionism, both secular and religious. In 1950, Jacob Blaustein, the president of the American Jewish Committee, ...reached an agreement in which David Ben-Gurion essentially promised not to speak for American Jews. ‘Jews of the United States, as a community and as individuals, have no political attachment to Israel, ’ said Blaustein at the time....Decades later, such a statement from the Committee---or any other mainstream Jewish organization--would be unthinkable. A consensus set in that ‘Jewish identity can be reduced to Israelism, ’ Eliyahu Stern, an associate professor of modern Jewish history at Yale told me.’That’s something that takes place over the second half of the 20th century in America.’”  
Liberals in the American Jewish community used to rationalize their support for Israel but, Goldberg argues, this is no longer possible: “Now...Israel has foreclosed the possibility of two states, relentlessly expanding into the West Bank and signaling to the world that the Palestinians will never have a capital in East Jerusalem. As long as the de facto policy of the Israeli government is that there should only be one state in historic Palestine, it’s unreasonable to regard Palestinian demands for equal rights in that state as anti-Semitic. If the Israeli government is going to treat a Palestinian state as a ridiculous pipe dream, the rest of us can’t act as if such a state is the only legitimate goal of Palestinian activism. ...People with an uncompromising commitment to pluralistic democracy will necessarily be critical of contemporary Israel. That commitment, however, makes them the natural allies of Jews everywhere else.”  
Netanyahu and Brazil’s new leader  
The irony of labeling liberal critics of Israel’s occupation as “anti-Semites, ” while the Israeli government embraces right-wing governments around the world, many with close ties to historic anti-Semitism, is recognized, even by many in the Jewish community who are now questioning their traditional embrace of Israel. In December, for example, Prime Minister Netanyahu spoke at a synagogue in Rio de Janeiro. Of Brazil’s incoming right-wing president Jair Bolsonaro, he declared: “It’s not just friendship, it’s a pact of brothers.”  
Editorially, Washington Jewish Week (Jan. 10, 2019) noted that, “...to call a man like Bolsonaro brother...as Netanyahu did, is really troubling. ...He is a far-right former army captain who has praised Brazil’s former dictatorship and its decades of military oppression. He has insulted women, descendants of slaves and gays, going so far as to say, ‘I’d prefer (to see) a son of mine die in an accident than (to be) a homosexual.’ So what does Netanyahu find so attractive in this guy?”  
Beyond this, notes Washungton Jewish Week, “Netanyahu has cultivated good working relations with other strongmen, including Russian President Vladimir Putin. This has been so even as Russia has increased its presence in the Middle East and has supported Iran and Syria, Israel’s sworn enemies..Nor do we understand his attraction to Hungary’s authoritarian prime minister, Viktor Orban, who Netanyahu welcomed to Israel last summer as ‘a true friend of Israel.’ And yes, that’s the same Orban who praised the leader of Hungary’s pro-Nazi government during World War ll, has promoted a conspiracy campaign against Hungarian-born Jewish financier George Soros, railed against refugees despite there being nearly none entering his country. threatened native Roma and strangled democracy during his four terms in office. Netanyahu has also made common cause with Poland’s increasingly undemocratic government....We are concerned with Netanyahu’s growing right-wing brotherhood. ...Effective diplomacy does not require the abandonment of basic moral values”  
Israeli critics  
Ironically, many Israelis have challenged their government’s policies in much the same way as have advocates of the BDS movement in the U.S. who have been charged with “anti-Semitism.” As far back as 2002. former Israeli Attorney General Michael Ben-Yair wrote in Haaretz: “We Israelis enthusiastically chose to become a colonialist society, ignoring international treaties, expropriating lands, transferring settlers from Israel to the occupied territories, engaging in theft and finding justification for all these activities...we established an apartheid regime.”  
Tomer Persico, a professor at Tel Aviv University, makes the case that, “it concerns the failure of Israeli society to forge a Judaism that is substantively democratic, a Judaism that self-evidently does not contradict democracy but, on the contrary, buttresses it. Instead, Judaism is being shaped as a violent ethnic identity, a Spartan religion of a nation of masters, an atavistic, nationalist entity, which instead of conducting a dialogue with modernity is choosing to divest itself of liberal traits it had already internalized, including some that were always ingrained in it...It will emerge that for the whole world, Judaism has become synonymous with apartheid and occupation, violence and oppression, despotism and subjugation. Judaism has survived many disasters. This is one disaster it will not survive.”  
Avraham Burg, former speaker of the Knesset, now views Zionism as a major departure from Judaism and the Jewish moral and ethical, tradition. He states: “The more strident the rhetoric claiming Israel to be a Jewish state, the less visible Jewish ethical values become. In the midst of this cruel reality...there is no questioning of the meaning of life and the limits of power. The ancient Jewish dimension of the sanctity of life---even that of the assailant---which requires great caution before taking a life, has become despised and reviled, disappearing completely. ...Israeli democracy is dying. ...The time has come to fight for a secular democracy that belongs to all its citizens, in which there is a total separation between religion and the state, whose public resources are distributed fairly and transparently, where there is full constitutional equality between men and women, majority and minority, religious and secular, and which is peace-loving, generous, non-occupying and non-annexing.”  
Jewish critics charged with “anti-Semitism”  
Jewish critics of Israel are as likely to be denounced as “anti-Semites” as non-Jews. For example, columnist Caroline Glick, writing in the Jerusalem Post, found New York Times columnist Thomas Friedman guilty of employing “traditional anti-Semitic slurs” and “of channeling long-standing anti-Semitic charges.” She described Friedman as a “dyed-in-the-wool Israel hater” for writing that he “sure hopes that Israel’s prime minister, understands that the standing ovation he got in Congress, was not for his politics, The ovation was bought and paid for by the Israel lobby, ”  
Writing in Haaretz, Rebecca Vilkomerson of Jewish Voice for Peace provided this analysis: “Seventy years into the ongoing dispossession and displacement of Palestinians, 50 years into Israel’s military occupation, and 10 years into the siege of Gaza, we think it is time for American Jewish communities to have some really uncomfortable conversations...Challenging anti-Semitism requires us to distinguish between anti-Jewish ideas or actions and legitimate criticism of the human rights abuses of the Israeli state and of Jewish institutions which aid in supporting or justifying the domination of another people.”  
The campaign to criminalize criticism of Israel goes hand in hand with making organizations in the U.S. which support racism and violence in Israel tax exempt. Thus, American taxpayers are subsidizing some of Israel’s most disruptive and extreme individuals and groups. This is now being challenged by T’ruah: The Rabbinic Call for Human Rights.  
How American taxpayers support extremism in Israel  
In an article, “How your taxes prop up Israeli Extremism” (The Washington Post. (Jan. 13, 2019), Rabbi Jill Jacobs, the executive director of T’ruah, describes a youth hostel, the Jerusalem Heritage House, “...which openly promotes the extremist teachings of Meir Kahane, the late U.S.-born rabbi---who preached and directed terrorism...and who advocated the forced expulsion of Palestinians from territory Israel controlled. Worse, U.S. donors enjoy tax deductions for their contributions...That means American taxpayers are subsidizing the radicalization of hostel guests, primarily young American backpackers.”  
T’ruah reports that the Heritage House is supported heavily by the Jewish Heritage Movement, a Staten Island-based tax exempt organization. Two other organizations also fund such extremist groups: American Friends of Yeshivat HaRaayon HaYehudi, an educational institution founded by Kahane which features his videos and writings and the Central Fund of Israel, which sends funds from the U.S. to various groups in Israel, including Honenu, which is reported to have made cash payments to Israelis convicted of terrorism and to their families and Hemla, which says it aims to “save” Jewish women who are “at risk” of forced conversion by intermarrying with Arabs. Hemla also has connections to Lehava, which is best known for violence against Palestinians and Jewish liberals, intimidating Jews who rent to or hire Palestinians. and attempting to break up inter- marriages or gatherings that bring together Jews and Arabs. In the case of Honenu, payments have been given to the wife of Ami Popper, who murdered seven Palestinians in 1990, and the wife of Yigal Amir, who assassinated Prime Minister Yitzhak Rabin.  
Last year T’ruah submitted a complaint to the IRS about the tax-exempt status of such extremist groups. Rabbi Jacobs notes that, “Section 501(c) of the U.S. tax code asserts that ‘an organization’s tax exempt status will be suspended upon proof that it is engaged in terrorist activities..’ ...The State Department has already declared Kach and Kahane Chai to be foreign terrorist organizations. Groups like Lehava, Heritage House and Honenu ---run by much of the same leadership and with the same rhetoric and tactics---should fall into the same category. Which means the IRS should strip U.S.-based organizations raising money for these groups of their exempt status.”  
Misrepresenting American Jewish opinion  
In our current political environment, groups which are in the forefront of attempting to criminalize criticism of Israel gain support because they present themselves as speaking in behalf of American Jews. In doing so, they misrepresent American Jewish opinion. In recent years, sympathy for Zionism and Israeli government policy has been in steady decline. A study by social scientists Ari Kelman and Stephen M. Cohen found that among American Jews, each new generation is more alienated from Israel than the one before. In his book, “Trouble In The Tribe: The American Jewish Conflict Over Israel, ” Professor Dov Waxman of Northeastern University writes, “A historic change has been taking place in the American Jewish relationship with Israel...Israel is fast becoming a source of division rather than unity for American Jewry.”  
In Dr. Waxman’s view, most American Jews have, despite their traditional sympathy for Israel, never really embraced Zionism: “Classical Zionism ...has never had much relevance or appeal to American Jewry. Indeed, the vast majority of American Jews reject the basic elements of classical Zionism---that diaspora Jews live in exile. that Jewish life in Israel is superior to life in the Diaspora, and that Diaspora Jewish life is doomed to eventually disappear. American Jews do not think that they live in exile and they do not regard Israel as their homeland. ...For many American Jews, America is more than just home, it is itself a kind of Zion, an ‘almost promised land.’ Zionism has never succeeded in winning over the majority of American Jews.”  
Discussing what he considers the “existential threats” facing the American Jewish community, Andre Rehfeld, who will become president of Hebrew Union College-Jewish Institute of Religion in April, was interviewed by the Philadelphia Jewish Exponent: “He lists off decline in synagogue membership, decline in denominational affiliation, decline in traditional notions of wanting to be religious...and the decline in Israel ‘being anything but a complicated mess’ in terms of identity building.”  
Trampling of the First Amendment  
Jeremy Ben-Ami, president of J Street, writing in The Forward (Jan. 17, 2019) sharply criticized those in the organized Jewish community who have supported legislation which would criminalize criticism of Israel. He notes that, “In states across the country, lawmakers---with the backing of major Jewish community groups---have trampled on the First Amendment rights of BDS backers and others employed by state and local governments, who have lost their jobs because they would not sign a pledge promising not to engage in BDS activities.”  
Beyond this, writes Ben-Ami, “In Jewish communal spaces...we see efforts to shun BDS supporters---even when such support appears rooted in in legitimate concerns over Palestinian rights and Israeli government policy in the occupied territory....Community bodies seek to expel groups who merely engage or partner with BDS proponents. These illiberal actions are inconsistent with the longstanding American Jewish commitment to open debate and civil and political rights. ..It is the current Israeli government’s continued creeping annexation of the occupied West Bank, not BDS, which severely threatens Israel’s future.”  
The idea that this anti-BDS legislation, somehow, is supported by most American Jews is at odds with the growing division among mostly liberal American Jews and the increasingly right-wing Israeli government, which is actively promoting the anti-BDS laws, Editorially, The Jewish News Of Northern California (Dec. 8, 2018) described the laws this way: “It has all the appearances of an overbearing government thought-police pressing down on the little guy, holding pay checks hostage to demand ideological support for a country two continents away. What possible business is it of Texas what a random speech pathologist does or doesn’t think about Israel? Condemnation has been swift and brutal and in many cases has crossed partisan boundaries.”  
The Jewish value of free and open discussion  
While the organized Jewish community supports Israel’s occupation, the majority of American Jews oppose it, and support the creation of a Palestinian state. Many Jewish critics of Israel support the BDS movement, such as the increasingly popular Jewish Voice for Peace. Others, such as J Street, while not supporting BDS, oppose the anti-BDS legislation which criminalizes criticism of Israel, J Street notes that these laws could have a harmful effect by treating the settlements in the occupied West Bank and Israel, proper as similar rather than distinct entities.  
By embracing the anti-BDS laws, AIPAC, the American Jewish Committee and other establishment Jewish groups are not representing the thinking of the vast majority of American Jews. They are turning their backs not only on the First Amendment guarantees of the Constitution but upon the Jewish value of free and open discussion as well. If Israel has a good case to make against the BDS movement, it and its American supporters should use our free speech guarantees to make that case. It should be made in the court of public opinion, not in a court of law. Only those without such a persuasive case would want to silence its opponents by criminalizing their free speech rights. That, it seems, is the path that Israel and its friends have chosen. In a battle against both the Constitution and the Jewish moral and ethical tradition, they are unlikely to succeed. *  

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