The US Supreme Court Is Putting Israel’s Interests Before the First Amendment
Laws across the United States are targeting the Boycott, Divestment, and Sanctions movement against Israeli apartheid. The Supreme Court is refusing to hear a challenge to those laws, even though they’re in clear violation of Americans’ First Amendment rights.
On February 21, the United States Supreme Court revealed its cowardice when it refused to hear a case challenging an anti–Boycott, Divestment, and Sanctions (BDS) law in Arkansas.
BDS is a movement led by Palestinians calling on people to boycott Israeli products, divest institutions from the State of Israel and companies that uphold the occupation of Palestine, and impose sanctions banning business with Israeli settlements and ending military trade with Israel. The Arkansas law prohibits public employees from engaging in BDS — despite the fact that economic boycotting is a form of freedom of speech.
BDS, according to precedent, is protected by the First Amendment, but the Supreme Court refusing to hear the case allows the Arkansas law to stand. Although the Supreme Court’s refusal to hear the decision does not equate to a precedent that this law is constitutional, it nevertheless runs the risk of passively giving the green light for similar legislation in the future.
In the 1980s, the Supreme Court upheld under the First Amendment the right to boycott in situations where the gain is political reform. The BDS movement’s demands are clear: Israel must end its occupation and colonization of all Arab lands and dismantle the apartheid wall, recognize the fundamental rights of the Arab-Palestinian citizens of Israel to full equality, and respect the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194.
US citizens who choose to support BDS are taking a stand against the relentless violence to which Palestinians have been subjected to for seventy-five years, since Israel began the occupation in 1948. Just one day after the Supreme Court declined to hear the case, Israel murdered eleven Palestinians and injured 102 others in a military raid in the occupied West Bank city of Nablus. Fatal early-morning raids have become a routine practice for the Israeli Occupation Forces (IOF) this year, and they are only escalating. With its BDS ban, the state of Arkansas is trying to stop individuals from protesting this kind of violence.
It may seem strange for the state of Arkansas to have a stake in the matter at all, but BDS has enemies in surprising places. That’s because it works. BDS stands in the way of Israel progressing its project of ethnic cleansing in the West Bank and Gaza. It also undercuts profits gained by companies working with the apartheid state, and poses an obstacle to the US government, which uses Israel to further its own imperial interests. As Israel’s violence becomes more apparent, the pull of BDS is becoming more magnetic to people who care about human rights — and opposition to BDS is becoming more urgent for proponents of the Western capitalist international order.
The Arkansas law is part of a growing nationwide crackdown that seeks to exceptionalize BDS and isolate it from other protest movements. Laws targeting BDS, many of them formulated by the American Legislative Exchange Council (ALEC), have been passed in multiple states. Last year, these laws were successfully used to pressure the investment research firm Morningstar, Inc. to make an exception for Israel when determining the social and environmental responsibility ratings of companies. The firm’s subsidiary, Sustainalytics, has adjusted its approach when it comes to companies operating in occupied Palestine, stating that this no longer raises automatic red flags. This change was brought about after a campaign by JLens, a pro-Israel investing group.
The role of the US government is significant in maintaining the structure that perpetuates the illegal occupation of Palestine. In addition to the $3.8 billion in military aid per year that goes to Israel, funded by American tax dollars, the US government is now prioritizing its fealty to Israel over the First Amendment freedoms of Americans at home.
There is already a direct line connecting American dollars to Israeli bombs used against Palestinian. Anti-BDS legislation goes a step further by forcing Americans, whether knowingly or unknowingly, to maintain the occupation regardless of their personal views. As citizens of the world, but especially of the United States, we must push back on legislation that seeks to silence the movement for Palestinian freedom.