Point/Counterpoint: Anti-BDS Legislation

My Skokie Moment

By William Z. Pentelovitch

Tuesday morning I testified before a committee of the Minnesota legislature. It was my personal “Skokie” moment. It was not easy, but I did what I believe was the ethically and morally correct thing.

In the early 2000s, my wife taught a Jewish ethics class each year to eighth graders at our synagogue. As part of the curriculum, I spent at least one session visiting the class to discuss the “Skokie” case. Here is what I told the students:

In the late 1970s a neo-Nazi group sought to stage a march through the heart of Skokie, Ill. At the time, Skokie had the largest population of Jewish Holocaust survivors living outside of Israel, and the proposed march was – and was intended to be – deeply offensive to the Jewish community. The city of Skokie, at the urging of its Jewish residents, attempted to prevent the march from taking place. A Jewish lawyer, working through the ACLU, took on the odious task of representing the neo-Nazis for the purpose of vindicating their First Amendment right to freedom of expression. He was vociferously criticized for taking the case. But because it was patently unconstitutional for Skokie to ban the march, the ACLU prevailed and the march took place, largely without incident.

After providing this information, the question I asked the eighth graders: Did the Jewish lawyer do the ethically and morally correct thing from a Jewish perspective in representing the neo-Nazis? As you might imagine, the discussion that followed was always very lively and the kids were engaged.

What brought me to the legislature Tuesday morning was that elements of our Jewish community, led by the Israel Project and by the Jewish Community Relations Council (the latter of which I support), are lobbying in support of a bill, HF 400, that would require anyone entering into a contract with the state of Minnesota having a value of more than $1,000, to certify in writing that they were not, and would not, discriminate against Israel.

The prohibited conduct is described in HF 400 as follows: “For purposes of this section, ‘discrimination’ includes, but is not limited to, engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel, when such actions are taken: (1) in compliance with or in adherence to calls for discrimination against Israel or a boycott of Israel, other than those boycotts to which United States Code Appendix, title 50, section 2407(c) applies. . .”

HF 400 is plainly directed at adherents to the BDS movement (boycott, divest, sanction) that seeks to cause Israel to change its policies with respect to West Bank settlements by boycotting Israeli products, divesting from Israeli investments, and sanctioning Israel. It is a political movement that I strongly oppose; it has not been particularly successful and, in my opinion, is very marginal. But a political movement it is.

The bill is patently unconstitutional. It usurps the exclusive power of Congress to regulate foreign commerce, and it imposes an unconstitutional condition – foregoing freedom of expression that is protected by the First Amendment – as a condition to doing business with the state.

As board chair of the American Civil Liberties Union of Minnesota, I typically do not testify before the legislature; we have staff members who are far more qualified than I to do that. But I felt it was ethically imperative for me to personally appear before the legislature to enumerate the reasons why HF 400 violates the U.S. Constitution. In my view – particularly at this very dark time in American history – no one, but most particularly members of the Jewish community, should be supporting legislation, regulations, or rules that limit freedom of expression in any way, shape or form. Laws that condition doing business with government on foregoing constitutional rights, or adhering to a particular political or religious viewpoint, could easily be enacted by authoritarian government leaders against Jews, Muslims, Catholics, gays, immigrants, or other minority groups.

Before addressing the legislative committee, I spent nearly 10 days trying to persuade the JCRC that HF 400 is unconstitutional and unworthy of its support. I learned that several of the JCRC board members agreed with me. Nonetheless, my efforts failed, despite my hope that this issue could be resolved quietly without triggering a broad community debate. Having failed to accomplish meaningful change behind the scenes, it became my ethical duty to speak out.

And now the Jewish community in Minnesota must enter this debate, because otherwise a relatively small but dedicated group of our fellow community members will succeed in eroding the Constitution.  That is not something that we, as a Jewish community, can afford to let happen irrespective of our disdain for the BDS movement.

I have Jewish friends who, to this day nearly 40 years later, still refuse to support the ACLU because of the Skokie case. I suspect that I may have friends who will be displeased with the position I have taken on behalf of the Constitution. But I rest easy tonight knowing that I did the ethically and morally correct thing. And I will look forward to a broad based debate of the propriety of supporting such unconstitutional legislation within the Jewish community.

For those of you who are interested, here is a brief summary of the ACLU-MN analysis why HF 400 is unconstitutional:

The U.S. Constitution in Article 1, Section 3, Clause 8 gives Congress the exclusive right to regulate foreign commerce. Because Congress has the exclusive right to regulate foreign commerce, state laws attempting to regulate foreign commerce – as HF 400 would do – are unconstitutional. Therefore, HF 400 is unconstitutional because it attempts to regulate foreign commerce.

From my perspective the more serious problem from a civil liberties point of view is that HF 400 violates the First Amendment guarantee of freedom of expression. Here is a summary of the reasons why:

  1. Boycotts to achieve political goals are a form of expression that the Supreme Court has ruled are protected by the First Amendment’s protections of freedom of speech, assembly and petition. See, NAACP v. Claiborne Hardware Co, 458 U.S. 886, 932-933 (1982).
  2. HF 400 violates what the Supreme Court refers to as the “unconstitutional conditions” doctrine. In other words, the government violates the First Amendment when it requires someone to forego their constitutional rights, or requires someone to exercise their constitutional rights in a particular way, in order to enter into contracts or receive grants of money from government bodies. See, O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996).
  3. The right to boycott to achieve political ends such as persuading Israel to change its policies regarding West Bank settlements is expression protected by the First Amendment. And HF 400 requires a potential vendor to forego the right to engage in such a boycott as a condition of entering into a contract with the state. For that reason, HF 400 violates the unconstitutional conditions doctrine and the First Amendment to the Constitution.
  4. The U.S. Supreme Court upheld the unconstitutional conditions doctrine as recently as three years ago. The court held that the United States could not, as a condition of providing funding to non-governmental agencies to combat HIV and AIDS in Africa, require those NGOs to adopt policies opposing prostitution. They held that because NGOs have a constitutional right to take any position they want about issues involving prostitution. Congress could not condition their receipt of federal funds on adopting a point of view dictated by the government. Agency for International Development v. Alliance for Open Society International, 133 S.Ct. 2321 (2013).

The JCRC has advanced two principal constitutional justifications for the bill, neither of which has any legal merit.

First, a law professor from Illinois who is affiliated with the Kohelet Institute in Jerusalem, an advocate of expanding settlements on the West Bank, and who is a proponent of this bill and bills with similar goals in other states frequently cites a U.S. Supreme Court case called Rumsfeld v. FAIR as one that supports the notion that HF 400 does not impose an unconstitutional condition. That is incorrect. Rumsfeld was decided six years prior to the AIDS case I mentioned. Both decisions were written by Chief Justice Roberts. In Rumsfeld, the Court found that there was no unconstitutional condition because the power of Congress to raise an Army and a Navy gave it the right to mandate that military recruiters be allowed on college campuses as a condition of the colleges receiving certain types of federal funds, regardless of whether the colleges agreed with the government’s position regarding military actions in the Middle East. This is quite obviously a very different situation.

Second, the JCRC points to federal anti-boycott legislation from the 1970s as justification for this bill. However, federal anti-boycott legislation is enacted pursuant to Congress’ power to regulate foreign commerce, which as I mentioned earlier state legislatures do not have the power to do. Moreover, even the federal anti-boycott legislation is subject to First Amendment scrutiny to make sure that it was enacted to advance an important governmental interest in foreign affairs, which again this legislature is not empowered to dabble in. Finally, the very legislation that proponents cite has a pre-emption provision that specifically invalidates any state anti-boycott laws. See 50 U.S. C. § 4067.

I am hopeful that the JCRC will come to its constitutional senses and withdraw its support for this bill. If they don’t and the bill passes, I am hoping that Governor Dayton will have the good sense to veto it. But if the bill is enacted, I fear that the constitutionality of the bill is headed to a showdown in the court room, and would would be a sad day indeed if a bill backed by the JCRC was ruled unconstitutional.

For those of you who are Minnesota residents and share my concerns, please voice them to your legislators.

William Z. Pentelovich is the President of the Board of Directors of the ACLU-MN

Is it Constitutional for Minnesota to Bar Discrimination Against Israelis? You Betcha!

By Ethan Roberts

In 2014, upon signing legislation to expand federal anti-discrimination contracting law, President Barack Obama rightfully proclaimed we should not “subsidize discrimination.” To its credit, the American Civil Liberties Union (ACLU) noted that “President Obama is building on a bipartisan tradition, dating back over 70 years, of barring discrimination without exception when taxpayer dollars are involved.”

Fast forward three years and Minnesota legislators are now being asked to expand this same principle in a bill, which says that taxpayers cannot be asked to subsidize discrimination of Israel and people doing business in Israel. This legislation is like bipartisan laws already approved in 16 other “blue” and “red” states and a direct response to the Boycott, Divestment, and Sanctions (BDS) movement. This relentless global campaign to destroy Israel is intent on punishing all Israelis by pressuring businesses, universities, churches, and others to refuse to do business with Israelis, participate in cultural boycotts of Israel, or in several other ways demonize and isolate Jewish Israelis.

As Jewish Minnesotans, we know this story all too well as evidenced by the atrocious treatment of renowned Israeli Professor Moshe Halbertal at the University of Minnesota Law School. In November 2015, Professor Halbertal was shouted down by an angry mob of BDS activists for 45 minutes as he tried in vain to give a lecture on “Protecting Civilians: Moral Challenges of Asymmetric Warfare.” For the BDS advocates it did not matter that Professor Halbertal is a well-respected progressive ethicist, all they needed to know was that he is a Jewish Israeli and thus not deserving of the right to speak at a taxpayer funded university. Notably, many (but by no means, not all) who correctly argue that the best response to speech you don’t agree with is more speech were conspicuously quiet while Professor Halbertal had his right to be literally heard trampled on.

While some contend that this bill would infringe First Amendment rights to freedom of speech, it does nothing of the sort. Nothing in the bill restrains constitutionally protected freedom of expression. It simply requires companies wishing to do business with the state of Minnesota to refrain from discriminating against Israel or those who do business with Israel.

As noted by the ACLU, anti-discrimination contracting laws have been around for decades. Surely, in that time, there have been businesses which sought to contract with the government that also did not want to deal fairly with women, people of color, or LGBT people. And yet, despite what were no doubt deeply held and constitutionally protected beliefs, those businesses were put on notice that if they wanted to contract with the government, we were not going to allow them to act upon those beliefs and actively discriminate.

So how can a court reasonably say that barring discrimination against one group of people is perfectly constitutional, but barring discrimination against another group is against the First Amendment? For example, imagine if a court did decide that the critics of our legislation are correct and that businesses do in fact have a First Amendment right to discriminate against Israelis simply because they don’t like Israelis. How can anyone be so confident that other businesses wouldn’t take that precedent and use it to justify discrimination against Muslims, women, or LGBT people for who they are? There is no way to quarantine legalized discrimination against Jewish Israelis. As we know, what starts with the Jews, rarely ends with the Jews.

Additionally, under federal law it is illegal for American companies to cooperate with the Arab League Boycott against Israel. Notably, when signing this overwhelming bipartisan bill into law, President Jimmy Carter praised it for “end[ing] the divisive effects on American life of foreign boycotts aimed at Jewish members of our society.” Forty years later this federal anti-boycott statute, which specifically protects Israel, remains good law.

Given these precedents it has been argued in some quarters that only Congress has the power to regulate this kind of discrimination against Israelis. However, this argument ignores strongly bipartisan legislation which Congress is set to pass that explicitly authorizes the very kind of state anti-BDS laws being discussed here in Minnesota. Under this proposed law, “a State or local government may adopt and enforce measures that …restrict contracting by the State or local government for goods and services with [businesses] [that] knowingly engages in a commerce-related or investment-related boycott, divestment, or sanctions activity targeting Israel.” While this law is likely not even necessary for states to pass anti-discrimination laws which protect Israelis, it should provide additional comfort to those worried that state anti-BDS laws are an improper usurpation of Congressional authority.

Finally, it is important to keep in mind what these anti-BDS laws do not limit. As discussed above, there is an active anti-Israel movement at the University of Minnesota. Even after this law going into effect, those activists will still have every right under the First Amendment to protest Jewish Israeli professors, organize a consumer boycott against Israeli products, or even use University funds to bring in their own virulently anti-Zionist speakers.

Similarly, a business seeking to contract with the State of Minnesota is still welcome to speak out against Israel, or contribute financially to pro-BDS causes. However, just like businesses seeking to contract with cities, states, and the federal government in other contexts, these enterprises should not expect taxpayers to subsidize their discrimination against Jewish Israelis.

Ethan Roberts is the Director of the Twin Cities Jewish Community Government Affairs Program at the Jewish Community Relations Council of Minnesota and the Dakotas