On April 23, 2017, Defending Rights & Dissent’s Policy & Legislative Counsel, Chip Gibbons, addressed 110 people at the Faith Forum on Middle East Policy. For the last several years, the Faith Forum has hosted a breakfast during the Ecumenical Advocacy Days. This year the topic of the breakfast was “Freedom to Boycott,” and dealt with state and federal legislation targeting the Boycotts, Divestment, and Sanctions (BDS) movement.
Gibbons briefed the gathering on the First Amendment’s protection of the right to boycott, as well as, the general trajectory of legislation aimed at silencing Palestinian human rights advocates. Gibbons explained how the earliest legislative attempts came in response to the American Studies Association (ASA) support for an academic boycott of Israel. The ASA’s decision came on the heels of similar decisions by the Asian American Studies Association and the Native American and Indigenous Studies Association.
After bills targeting these groups failed, Gibbons explained, a new crop of bills emerged that would create blacklists of various entities, sometimes including natural persons and NGOs, who boycott Israel and denying them contracts and/or investment.
An emerging trend Gibbons highlighted is exemplified in the Anti-Semitism Awareness Act. This act would have forced the Department of Education Office of Civil Rights to use the State Department’s definition of Anti-Semitism. This definition conflates criticism of Israel with anti-Semitism. The author of this definition, Kenneth Stern, has stated that such a use of his definition would be inappropriate and likely violate the First Amendment. Following this bill’s introduction in Congress, a number of states have considered bills codifying the State Department’s definition of anti-Semitism into civil rights law.
Gibbons also explained the constitutional protections of the right to boycott. Boycotts for political, economic, and social change are, according to the Supreme Court, political speech. Political speech receives the maximum protections afforded by the First Amendment. A boycott meant to change Israeli policies or advance Palestinian human rights is clearly political speech.
Under the unconstitutional conditions doctrine, even if someone does not have a right to receive a public benefit, they cannot be denied it for exercising a constitutional right. This doctrine has been used to find that public employees have First Amendment rights and that independent contractors have the same First Amendment rights. Thus, denying someone a public benefit, such as a contract, for engaging in a boycott for Palestinian human rights would violate the unconstitutional conditions condition.
Gibbons has long been involved in pushing back against anti-BDS legislation. As Policy & Legislative Counsel, Gibbons has helped to draft testimony against anti-BDS bills in a number of states, as well as, help with Defending Rights & Dissent’s extensive public education campaign on the right to boycott. Prior to joining Defending Rights & Dissent, Gibbons helped found the Keep Free Speech in the Free State coalition, to take on the first anti-BDS bill in Maryland, which was also the second anti-BDS bill in the nation. He later would serve as legislative co-chair for its successor group, Freedom2Boycott Maryland.
Gibbons was joined in addressing the group by Paul Noursi from Palestinian Christian Americans for Peace. Noursi talked about his experiences with the Virginia Coalition for Human Rights, a successful grassroots effort to defeat a bill in Virginia that would have codified into law the State Department definition of Anti-Semitism.
Both Noursi and Gibbons talked about during their closing remarks the power of grassroots movements at defeating anti-BDS bills. While anti-BDS bills have been propping up all over the nation, the experience in Virginia highlight by Noursi or in Maryland, as highlighted recently by the Dissent NewsWire, prove that these bills are not unstoppable.