As part of her efforts to promote boycotts of Israeli Jews, Rep. Ilhan Omar has introduced a resolution that relies on a bogus free speech argument.
Omar on Wednesday countered a House resolution opposing the efforts to boycott, divest, and sanction Israel with one of her own. In classic Omar style, her resolution not only compared anti-Israel boycotts to the Boston Tea Party, but also to boycotts against Nazi Germany.
The resolution also describes itself as, “Affirming that all Americans have the right to participate in boycotts in pursuit of civil and human rights at home and abroad, as protected by the First Amendment to the Constitution.”
This is a complete straw man. Nobody is arguing that any American be denied the ability to boycott Israel.
The resolution before the House Foreign Affairs committee resolves five points, all of which merely assert the sense of the House, none of which say anything about restricting the right of Americans to protest:
(2) affirms that the Global Boycott, Divestment, and Sanctions Movement undermines the possibility for a negotiated solution to the Israeli-Palestinian conflict by demanding concessions of one party alone and encouraging the Palestinians to reject negotiations in favor of international pressure;
(3) urges Israelis and Palestinians to return to direct negotiations as the only way to achieve an end to the Israeli-Palestinian conflict;
(4) supports the full implementation of the United States-Israel Strategic Partnership Act of 2014 (Public Law 113–296; 128 Stat. 4075) and new efforts to enhance government-wide, coordinated United States-Israel scientific and technological cooperation in civilian areas, such as with respect to energy, water, agriculture, alternative fuel technology, civilian space technology, and security, in order to counter the effects of actions to boycott, divest from, or sanction Israel; and
(5) reaffirms its strong support for a negotiated solution to the Israeli-Palestinian conflict resulting in two states—a democratic Jewish State of Israel, and a viable, democratic Palestinian state—living side-by-side in peace, security, and mutual recognition.
There are state-based laws that go further than this resolution, but still, none of them attempt to make it unlawful for individuals to boycott Israel. David Bernstein has done a great job debunking the myths of state-level anti-BDS laws in two parts. I highly encourage anybody who is interested in a deeper read on the legal issues involved to read them. But here’s the short version.
State-level laws combating BDS prevent states from doing business with entities that boycott Israel. This is an important distinction on several levels. First, it means there are no restrictions on boycotting Israel, the restrictions only apply to entities seeking public money. Second, even then, there are no restrictions on individuals boycotting against Israel — just businesses or other entities. Even if a person works for a company that does business for the state, he or she cannot be barred from boycotting Israel. Third, there is ample precedent. As Bernstein writes, “During the 1980s, many states passed laws banning state contractors from dealings with South Africa. No one at the time suggested that contractors had a First Amendment right to deal with South Africa …” Fourth, the restrictions of state contractors are perfectly consistent with anti-discrimination laws concerning state contractors that are broadly favored by liberals.
The Supreme Court, Bernstein explains, has also drawn a key distinction between economic actions such as boycotts and speech protected by the First Amendment.
Omar is understandably trying to cast her anti-Semitic support for boycotting Israeli Jews as a more universally popular defense of free speech. But it’s incredibly dishonest.
