Table of Contents
Anti-Boycott
Since 2014, anti-boycott legislation targeting the movement for Palestinian rights has been introduced in federal, state, and local legislatures and adopted by executive order. This type of legislation generally attempts to use economic coercion to suppress boycotts, primarily through prohibitions on state contracts with and state investment in individuals and entities that boycott in support of Palestinian rights. Other anti-boycott legislation has threatened to defund student organizations and faculty involvement with academic associations that support BDS. Some legislation such as the Israel Anti-Boycott Act, introduced in Congress in 2017 and again in 2019, has attempted to go further, proposing criminal penalties and even jail time for furnishing information in furtherance of a boycott of Israel.
Not all of this legislation is the same, but it has the same target: boycotts for Palestinian rights. Palestine solidarity activists have coalesced around the 2005 Palestinian civil society call for boycott, divestment, and sanctions (BDS) against Israel until it complies with its international legal obligations. As campaigns to boycott and divest from entities complicit in Israel’s human rights abuses have gained momentum in the United States, Israel and its allies have sought to undermine these accountability efforts, including via repressive legislation.
The legislation varies in how it defines boycotts and the scope of boycotts it encompasses; some bills specifically mention boycotts of Israel or goods and services from Israel, while others refer more broadly to boycotts of allied countries. Frequently, the legislation also punishes boycotts of territories controlled by Israel, so that it reaches boycotts of products or services from or to illegal Israeli settlements. Some bills limit their application to “discriminatory” boycotts. Boycotts for Palestinian rights based on an entity’s complicity in Israel’s violations do not discriminate against a protected class and should fall outside the scope of these bills. However, we include them when there is a clear intent to target advocacy for Palestinian rights.
In addition to threatening economic and criminal penalties, this legislation also has a broader intent to chill and intimidate activists and their would-be supporters into believing that BDS is now “illegal.” In 2017, dozens of New Yorkers active in the movement for Palestinian rights received messages from a private security company led by ex-Mossad agents threatening “legal proceedings” under failed New York anti-BDS legislation if these individuals did not “cease and desist” from supporting BDS.
Elected officials have acknowledged their intent to silence advocates for Palestinian rights. For example, a U.S. senator introduced legislation in order to “send[] a clear message that politically-motivated boycotts of Israel are unacceptable to the United States.”
The Israeli government and right-wing lobby groups have promoted this repressive legislation. For example, while signing an anti-boycott executive order in 2018, Kentucky Gov. Matt Bevin said that Israeli Prime Minister Benjamin Netanyahu had personally requested that the governor enact the measure. The American Legislative Exchange Council (ALEC) also has pushed anti-boycott laws as part of its rightwing, racist agenda.
Despite the rapid spread of these laws, they have met with widespread opposition, both from grassroots activists who support the movement for Palestinian freedom and equality and from civil rights groups and legislators who recognize these laws as a violation of the First Amendment.
The U.S. Supreme Court has long held that boycotts to bring about political, economic, and social change – like boycotts for Palestinian rights – are protected by the First Amendment. The government may not condition the receipt of government benefits on forgoing core political speech activity; nor can the government enact measures that chill our speech rights. Civil rights groups such as the ACLU and the Council on American-Islamic Relations have relied on this precedent to mount successful legal challenges and block enforcement of these unconstitutional laws in a number of states. In response, these states have amended their laws so that they would no longer apply to contracts below a particular monetary threshold, narrowing the range of people the laws apply to. This narrowing fails to remedy the unconstitutional chilling effect of the laws, but makes their application harder to challenge.
Learn about other types of legislation here.
Prohibitions on State Contracts
This form of anti-boycott legislation prohibits state or local governments from entering into contracts with individuals, nonprofit organizations, and/or companies that support boycotts for Palestinian rights.
To enforce these prohibitions, many of these laws require contractors to sign written certifications that they do not and will not boycott goods and services produced in Israel (often including territories controlled by Israel to encompass boycotts of illegal Israeli settlement products). Some laws instead require the state to create a blacklist of individuals or entities that support BDS and bar state contracts with entities on the list.
The legislation varies in the types of government contracts it applies to, with some bills extending to all individuals or entities that contract with the state, while others are limited to state contracts over a specific monetary threshold (e.g. $100,000 or above), or entities with more than a certain number of employees. In many cases, lawmakers have responded to legal challenges by further narrowing the reach of these laws so that they no longer apply to the individuals who sued the state. These amendments fail to address the underlying constitutional concerns that these laws chill speech rights and unlawfully condition government benefits on forgoing core political speech activity.
Civil rights groups such as the ACLU and the Council on American-Islamic Relations have mounted legal challenges to block enforcement of these unconstitutional laws in a number of states. In 2018, a Palestinian-American elementary school speech pathologist, Bahia Amawi, declined to renew her contract with a Texas school district because the district required her to sign a pledge that she would not boycott entities doing business in Israel or territories controlled by Israel. Amawi sued the school district, and in 2019 a judge blocked enforcement of the Texas law. Texas lawmakers responded by amending the law to exclude Amawi and the other plaintiffs from its reach, and a court threw out the case as moot.
Confusion over the scope or deliberate misapplication of these laws has resulted in punishment or attempts to punish advocates for Palestinian rights and others more broadly. For example, in 2017, victims of Hurricane Harvey in Dickinson, Texas, were required to certify that they do not and will not boycott Israel in their application for repair grants. City officials cited the state anti-boycott law as imposing the certification requirement, but later eliminated the requirement following an outcry that the requirement unconstitutionally conditioned relief aid on political expression.
Learn about other types of legislation here.
Prohibitions on State Investments
This form of anti-boycott legislation prohibits states from investing in entities that support boycotts for Palestinian rights. Restrictions often focus specifically on the state’s management of pension funds for government employees, but some apply more broadly to all state entities that invest funds. Many of these laws operate by requiring state entities to create and maintain blacklists of disfavored entities that boycott Israel or support BDS. This type of legislation drew particular attention in November 2018 after the vacation rental company Airbnb announced short-lived plans to remove some listings located in illegal Israeli settlements in the occupied West Bank. Soon after the announcement, Florida, Illinois, and Texas invoked their state anti-boycott laws to blacklist Airbnb. The University of Texas at Austin (a public university) then announced that it would prohibit its employees and students from using university funding to rent Airbnb properties, claiming adherence to the state’s anti-boycott law. Airbnb reversed its plans to remove settlement listings in April 2019, after settling a civil suit brought by property owners in illegal Israeli settlements and amid rumors that the company planned to offer its shares for public trading. Texas and Florida removed Airbnb from their blacklists in April and June 2019, respectively. Illinois also removed Airbnb from its blacklist after the company submitted a written certification in August 2019 stating that it does not boycott Israel.
Learn about other types of legislation here.
Defunding
Anti-boycott defunding legislation seeks to impose financial penalties on universities for subsidizing faculty and student organizations that support boycotts of Israel. This form of legislation calls on state agencies to “divest” or “defund” universities by reducing or prohibiting disbursement of federal or state funds to them.
Some of these bills were proposed in an effort to squelch solidarity actions by academic associations in line with the call of Palestinian civil society for a boycott of Israeli academic institutions. To express its opposition to Israeli policies and actions that stifle academic freedom for Palestinian students and scholars, in 2013 the American Studies Association (ASA) voted by an overwhelming majority to endorse a boycott of Israeli academic institutions, which facilitate Israeli human rights violations. In response, Congress and a number of states introduced legislation that sought to bar or reduce the funding that universities or academic associations received from federal or state sources if they funded faculty participation in academic groups that advocate boycotts for Palestinian rights. All of these binding measures failed.
In New York, legislators have also sought to impose financial penalties on universities that comply with the First Amendment in allowing students to organize Students for Justice in Palestine (SJP) groups. The New York state legislature has considered multiple bills that would defund any student group which encourages boycotts of “allied nations,” including Israel and “territories controlled by Israel.”
Learn about other types of legislation here.
Antisemitism Redefinition
Legislators have increasingly moved to adopt into law a distorted redefinition of antisemitism for use in enforcing civil rights and hate crimes laws. This type of legislation contains a vague and overbroad definition of antisemitism that could be interpreted as encompassing virtually all criticism of Israel. Because the definition could brand pure political speech and advocacy in support of Palestinian freedom as discriminatory or criminal, these laws could violate the First Amendment.
Known variously as the International Holocaust Remembrance Alliance (IHRA) definition, the State Department definition or the 3D’s definition, the redefinition used in this type of legislation expands the traditional definition of antisemitism to include criticism of Israel. The illustrative examples of antisemitism included in the redefinition and found in this legislation include “claiming that the existence of a State of Israel is a racist endeavor.” The examples also include applying a “double standard” to Israel, a vague statement that might suggest that anyone who criticizes Israel must also criticize every other human rights abusing nation. A particularly telling example cited in legislation proposed in several states is “focusing peace or human rights investigations only on Israel,” suggesting that the intent of the definition is to shield Israel from fact-based critical analysis. The history and use of the redefinition are described in detail here.
The Anti-Semitism Awareness Act, a federal bill that would require the Department of Education to consider the redefinition when investigating allegations of antisemitism in schools and universities, was introduced in Congress in 2016, 2018, and 2019. After the first two failed and the third stalled in the House of Representatives, President Trump signed an executive order in December 2019 requiring all federal agencies, not only the Department of Education, to consider the redefinition when conducting civil rights investigations.
In 2019, it was revealed that members of the right-wing lobby network American Legislative Exchange Council (ALEC) had been using ALEC as a platform to advocate for the passage of these laws.
This type of legislation has been widely criticized by civil liberties groups such as the ACLU and others for stifling free speech. The redefinition included in these laws has repeatedly been used by those attempting to stifle speech on campus. For example, a November 2018 vigil organized by Palestinian and Jewish students at UC Berkeley to jointly mourn the deaths of Palestinian children killed in Gaza and Jews killed in the 2018 Pittsburgh massacre was made the subject of a civil rights complaint because attorneys argued that comparing Israel’s actions to those of the Pittsburgh shooter portrayed “Israel as a barbarian and racist nation,” in violation of the redefinition. In April 2019, a group of anonymous students cited the redefinition in a lawsuit asking a court to force the University of Massachusetts Amherst to cancel a panel discussion about the censorship of speech supporting Palestinian rights.
Learn about other types of legislation here.
Affirmative
While the majority of the legislation we track is intended to infringe on activists’ rights, some legislators have proposed bills and resolutions to protect the movement for Palestinian rights or to reverse bad legislation.
In 2019, a Kansas lawmaker proposed a bill that would repeal the state’s anti-boycott law. A similar bill was proposed in Minnesota.
Learn about other types of legislation here.
Other
Legislation targeting advocacy for Palestinian rights generally falls in one or more of the categories described above. Other types of legislation may not specifically target the right to boycott or adopt the distorted redefinition of antisemitism, but the text or statements from sponsors make clear the intent to censor, suppress, or punish advocacy for Palestinian rights.
Learn about other types of legislation here.