JURIST Guest Columnist Abed Awad of Awad & Khoury, LLP, discusses the boycott, divestment and sanctions movement…

In 1880, English Captain Charles C. Boycott led an eviction campaign against tenants in Ireland. Appalled at the inhumanity of Mr. Boycott’s ruthless actions, his employees refused to work for him. These events introduced the word “boycott” to the English language as a way to describe economic protest to effect social, political and economic change.

Boycotts in the 20th Century have ignited and facilitated historic social and political change. The Montgomery, Alabama, Bus Boycott against racial segregation, Cesar Chavez’s grape boycott against abuse of farm workers, Harvey Milk’s boycott against LGBT discrimination, the Anti-Apartheid boycotts in the 1980s against the Apartheid regime in South Africa are but a few examples of boycott activism against injustices and human rights abuses.

American may be surprised to learn that state lawmaker are currently considering bills intended to abridge the freedom of speech of Americans, American businesses and institutions to engage in such peaceful protests of injustice.

In 1948, Israel was established resulting in the displacement of the indigenous Palestinians. While hundreds of thousands became stateless refugees, a sizable number of Palestinians remained. Currently Palestinian citizens of Israel make up about 20 percent of the population. They are subjected to systemic institutional discrimination. Non-Jewish Israeli citizens are legally excluded from living in more than 400 Jewish communities. Palestinian citizens suffer legally sanctioned discrimination with close to 50 discriminatory laws against Palestinian citizens of the state in employment, education, housing and land ownership.

After the 1967 Arab-Israeli War, Israel occupied the rest of historical Palestine&8212;East Jerusalem, the West Bank and Gaza Strip. Since 1967, Palestinians in the Occupied Territories have been living under Israeli military occupation. Israel restricts and denies Palestinians their basic human rights. Israel continues to confiscate Palestinian land to build and expand illegal settlements. The demolition of homes, uprooting of crops, restriction of movement and numerous other abuses documented by human rights groups like Amnesty International, Human Rights Watch and B’Tselem have become routine.

The Boycott, Divestment and Sanctions movement seeks to pressure Israel to end its occupation of Palestinian territories and comply with international law. The US civil-rights and South African anti-apartheid movements inspire and guide BDS. BDS is a peaceful tool to achieve justice and equality.

BDS is gaining traction in American civil society. The United Methodists, the Presbyterian Church (USA) and the United Church of Christ have all endorsed elements of BDS. Academic associations, university student governments, labor groups and others have similarly supported BDS. This is a healthy development forcing a serious public debate on Israel’s treatment of Palestinians.

As of this writing nine states have passed anti-BDS laws. At least nine other states have considered or are considering similar laws so far this year. Even county and municipal governments are considering such legislation. There are three common threads in the legislation aimed at curtailing the BDS movement that is pending or has passed. Bills that condition the receipt of state funding for higher education institutions on non-engagement in boycotts of Israel have so far been defeated because of their blatant unconstitutionality in states including Illinois and New York. Such bills are still pending in Pennsylvania and New Jersey. Other bills legislation prohibits the investment of State public retirement funds in entities that boycott Israel. Some legislation goes as far as prohibiting the state from entering into contracts with companies that boycott Israel.

Much of this legislation makes it a condition that recipients of government benefits espouse the State government’s anti-BDS position. The effective result of these bills is that any opposition or critique of the state of Israel is treated as an exception to the First Amendment. Their unconstitutionality is blatant.

Many lawmakers are entitled to disagree with my opinion. But it is unthinkable for a state legislature to suppress a citizen’s right to participate in a peaceful boycott against human rights abuses.

That boycotts are a recognized form of political speech is well-established in American jurisprudence. In NAACP v. Claiborne Hardware Co, for example, the NAACP organized a boycott of white-owned businesses to pressure government officials to meet their demands of equality and non-discrimination. The Supreme Court explained in that case that political boycotts are protected First Amendment activities directed at issues of public concern, and on the highest rung of the hierarchy of First Amendment values. By succumbing to Israeli government pressures to suppress BDS, State lawmakers are using their state’s economic leverage to restrict, discourage and silence constitutionally protected boycott activities of Americans.

Moreover the Supreme Court in Perry v. Sindermann held that the governments;may not deny a benefit to a person on a basis that infringes his constitutionally protected interests – especially, his interest in freedom of speech.

Recently the United States Supreme Court in Agency for International Development v. Alliance for Open Society International, Inc. (2013) held that requiring that organizations receiving funding under the Trafficking Victims Protection Act to have a policy expressly opposing prostitution violated First Amendment free speech protections.

Like in Claiborne BDS supporters are exercising their rights to free speech and association to effect justice and equality for Palestinians. Like in Perry and Agency for International Development, requiring organizations receiving government funding to hold or reject a particular social policy or political position cannot survive constitutional scrutiny.

Abed Awad is a founding partner of Awad & Khoury, LLP located in Hasbrouck Heights, New Jersey. His practice focuses on general civil litigation and business advice, including complex matrimonial law, commercial law, Islamic law and international law. Mr. Awad has native fluency in Arabic and is an expert in Islamic law and the laws of the Middle East.

Suggested citation: Abed Awad BDS-Oped, JURIST- Professional Commentary, June 13, 2016, http://jurist.org/professional/2016/06/abed-awad-sanctions-movement.php.