September 14, 2016

Introduced in response to the “BDS Movement,” a growing international campaign of intolerance and bigotry operating under the guise of human rights advocacy, AB 2844 is an important and needed law that will help to protect many Californians from discrimination. AB 2844 would, in essence, prohibit the state from contracting with entities that engage in discriminatory activity, including, but not limited to, discriminatory activity targeting Jews and those of Israeli origin.

[OPPOSITION: Gov. Brown should veto flawed BDS law]

Many other states have adopted similar laws and with the thoughtful revisions to AB 2844 that were made through the legislative process, there is no question that AB 2844 passes constitutional muster while also protecting a minority group in California that is under concerted attack.

I have written extensively on the BDS Movement generally and the constitutionality of restrictions on BDS Movement activity in the United States specifically.  My most recent paper, “The Inapplicability of First Amendment Protections to BDS Movement Boycotts” was published in the Cardozo Law Review de novo and is available here.  This paper demonstrates the constitutionality of AB 2844, especially with regard to First Amendment concerns.

Some of those who oppose anti-BDS laws, and AB 2844 in particular, have argued that BDS activity is subject to the same type of constitutional protections that civil rights boycotts enjoy.  Indeed, the initial legal analysis prepared by the legislature for AB 2844 contained this deeply flawed position. However, after a number of constitutional scholars, including my legal foundation, informed the state of its erroneous legal conclusion, the record was corrected and the legislature resumed consideration of AB 2844.

As a legal matter, there is no question that AB 2844 is a common sense, reasonable and permissible state action to combat discrimination, no different from other actions against discriminatory conduct, such as bans on state and local employee travel to states with anti-LGBTQ policies.  As a policy matter, there is great urgency in having the State of California take a stand against the increasingly hateful targeting of Jews and Californians of Israeli-descent, and their businesses. 

While those who support the BDS Movement claim that it is a rights movement, the truth is that it is nothing more than a revival of the old Arab League boycott against Israel, reinvigorated with a savvy public relations arm and backed by designated terror organizations and sponsors of international hate.  The BDS Movement came to life at the behest of, among other state actors, Iran, in a conference that former California Congressman Tom Lantos described as “an anti-American, anti-Israel circus…a transparent attempt to de-legitimize the moral argument for Israel’s existence as a haven for Jews.” 

BDS Movement activity has, as its ultimate goal, the elimination of the modern State of Israel and the disenfranchisement of Jews worldwide from their historic homeland.  In recent testimony before Congress, Dr. Jonathan Schanzer identified ties between supporters of designated terror groups, such as Hamas, and key supporters of the BDS Movement. 

BDS Movement activities in California have a particularly important impact on me.  My mother was born in a small village in what was then known as Czechoslovakia in 1933.  Her family was persecuted by an organized group that sought to demonize and disenfranchise Jewish residents under the guise of protecting the rights of others.  While many Czechs thought that the incremental vilification and targeting of their Jewish neighbors was a passing occurrence or one that would not concern them, when the Nazis invaded and began rounding up Jews it was too late to take action.  My mother was taken from her home by SS agents and while everyone in her family other than her (and her mother and father) were slaughtered in extermination camps, through a stroke of luck my mother was allowed to immigrate to the United States in 1942.  The fate of those in my father’s family who remained in the Ukraine had no such luck, as a frenzied population, driven my anti-Jewish agitprop, worked with the Nazis to eradicate Jews from their midst.

Today, the BDS Movement dutifully spreads a similar agenda of hate and discrimination and has unfortunately found a home in California.  Under the banner of the BDS Movement, radical Islamist groups operate on college campuses, intimidating and silencing Jewish students, spreading misinformation meant to encourage anti-Semitic activity and preventing Jewish and Israeli academics from participating in university activities.  In addition, BDS Movement boycott activity negatively impacts commercial markets in California.

In a recent decision by the International Executive Board of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), one of the country’s largest labor unions, the union found that the BDS Movement “espouses discrimination and vilification” of union members and a local union’s support of BDS was found to “Intrude upon [the union’s constitution] by subverting the Union in collective bargaining…[and] would have a far reaching  economic impact on UAW and other union members.” 

The words of the UAW speak volumes about the true nature of BDS and the impact of BDS support:

…the local union’s BDS Resolution inherently targets … Israeli and/or Jewish members…this call to action by the local union, in association with the BDS Resolution, is in disregard of the rights of … members of the UAW.  Moreover, this type of activity is suggestive of discriminatory labeling and a disparagement of these members. 

Similarly, the local union’s [BDS resolution engages in] biased targeting of Israeli/Jewish UAW members….

…we find that the provisions of the BDS Resolution, despite semantical claims to the contrary by the local union, can easily be construed as academic and cultural discrimination against union members on the basis of their national origin and religion…

…notwithstanding the denotation and connotation of words, it is our unanimous belief that the notion of BDS, credibly espouses discrimination and vilification against Israelis and UAW members who are of Jewish lineage….Thus, the local union’s platform is apparent in its unfavorable stance against the State of Israel, Israelis, and, invariably, Jewish union members.

On this basis, the UAW found that BDS support violates the UAW’s International Constitution’s prohibition on discrimination based on race, ethnicity, religion and national origin.

Make no mistake about it, while the BDS Movement is not openly advocating a Nazi-like agenda, their goal is to weaken, delegitimize and ultimately eliminate the Jewish identity of the Middle East (and all vestiges of it throughout the world). 

If the BDS Movement was, in fact, truly concerned with human rights in the Middle East, they’d be taking action against the homophobic, xenophobic and misogynistic policies of the Palestinian Authority and Hamas (and neighboring countries’ governments).  Instead, they are trying to destroy the only true liberal democracy in the Middle East and the only country in the region that respects and supports LGBTQ rights.  Recent activities on UC campuses, including targeted harassment of Jewish students by BDS supporters and fostering of radical anti-Semitic activities to marginalize Jewish voices on campuses are simply the tip of the iceberg of this hate movement.

Supporters of the BDS Movement argue that they have a right to protest against Israel and AB 2844 in no way infringes upon this right.  If Governor Brown signs AB 2844 into law, Californians can still take to the streets to voice their opinions against Israel and individual Californians can, if they so choose, avoid doing business with Israel.  

We can all agree that the people of California overwhelmingly oppose discrimination and there is no question that the BDS Movement is an organization that promotes discrimination. AB 2844 is simply an exercise of California’s proprietary power to spend or invest state funds in a manner that reflects the moral and economic interests of the people of the State of California.  AB 2844 follows the same longstanding policy against discriminatory boycotts as is enshrined in a number of federal laws, including the anti-boycott provisions of the Export Administration Act and Treasury Department regulations.

The State of California not only has the constitutional authority to choose to not do business with those who foster discrimination, it has a moral obligation to avoid contributing to such activity.  Governor Brown should sign AB 2844 into law.

Marc Greendorfer is an attorney and founder of Zachor Legal Institute, a legal foundation that focuses on constitutional scholarship and rights advocacy