Restricting Your Right to Boycott: Free Speech Implications Regarding Legislation Targeting the Boycott, Divestment, and Sanctions (BDS) Movement in the United States and the European Union

Authors

Jad Essayli

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466.html

Document Type

Comment

Abstract

On December 11, 2019, President Trump signed Executive Order 13899, which directs government agencies charged with enforcing Title VI of the Civil Rights Act to adopt a distorted definition of antisemitism intended to censor advocacy for Palestinian rights. The order conflates political criticism of the state of Israel with antisemitism—the primary reason why past attempts to pass similar legislation in Congress have consistently failed. Nonetheless, this uniliteral action taken by the President to redefine antisemitism as a means to censure criticism of Israeli polices raises genuine legal concern. Particularly considering that the same year, on February 4, 2019, the United States Senate passed The Combating BDS Act S.1. The law allows state governments to include a certification requirement that state-contractors—including lawyers, journalists, teachers, newspapers and even students who want to judge high school debate tournaments—will not participate in politically motivated boycotts against Israel, namely the Boycott, Divestment, and Sanctions (BDS) movement. To date, twenty-eight states have enacted legislation prohibiting participation in the BDS movement as a prerequisite to contract with the state. The constitutionality of such legislation, which restricts the receipt of government contracts based on one’s political speech, is especially precarious considering that participation in political boycotts is a form of speech safeguarded under the First Amendment principle of free political association.

Legislative actions targeting the BDS movement are on the rise not only in the United States, but also in Europe. Several European Union member states have enacted similar legislation to varying degrees. For instance, France has forged ahead by making it illegal simply to call for BDS, a judgment which fundamentally undermines the principles of freedom of expression and freedom of association found in The European Union’s Charter of Fundamental Rights, and in Article 10 of the European Convention on Human Rights. Accordingly, France’s anti-BDS law has been challenged for its non- compliance with EU Law.

This Comment explains the objectives of the BDS movement and explores the legality of legislative actions targeted at the movement in the United States and in the EU. This Comment argues that the wave of anti-BDS laws sweeping across international legal systems has a chilling effect on our civil liberties as it constrains freedom of speech and freedom of association. This Comment further contends that such legislation discriminates against disfavored political expression and aims to silence the budding global movement calling on Israel to adhere to its human rights obligations under international law.

Recommended Citation

Jad Essayli, Restricting Your Right to Boycott: Free Speech Implications Regarding Legislation Targeting the Boycott, Divestment, and Sanctions (BDS) Movement in the United States and the European Union, 21 San Diego Int'l L.J. 457 (2020)
Available at: https://digital.sandiego.edu/ilj/vol21/iss2/3