Sunday, June 16, 2019 -
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The sudden passion for free speech

The anti-Israel crowd clamors for free speech for itself — but not for others

I.

The anti-Israel crowd objects to laws that ban boycotts of Israel. The right to boycott is a matter of free speech, they argue. They have an unfettered, constitutional right to “BDS” — Boycott, Divest, Sanction — Israel.

We could lend a sympathetic ear to this argument if it were upheld in the courts and if its proponents applied it consistently. They do not.

For just that reason, we call the objectors to the anti-boycott-of-Israel laws “the anti-Israel crowd.” We do not call them civil libertarians  because most of them do not defend the free speech of everyone with whom they disagree. They do not defend the free speech of white supremacists, for example. Please recall, the noted civil libertarian, retired Harvard Prof. Alan Dershowitz, first earned his reputation in 1977 when he defended the right of American neo-Nazis to march in Skokie, Illinois — a bastion of Holocaust survivors at the time.

That’s right, a civil libertarian defends neo-Nazis, white supremacists and other racists. The tactic of the American Nazi Party — to march in a bastion of Holocaust survivors — was  intentionally incendiary. Alan Dershowitz despised the neo-Nazis, but staunchly defended their free speech rights.

We do not see the same in the anti-Israel crowd today. We do not see it defending free speech rights, whether of racists, on the one hand, or of supporters of Israel, on the other hand. It is only the right to boycott or otherwise harm or demean Israel that interests them. Their sudden passion for free speech is not about the First Amendment, it’s about harming Israel.

Why is there a right of free speech? Only because of speech that is deeply offensive. It was not necessary to devise a right, as Justice Oliver Wendell Homes said in 1929, for “free thought for those who agree with us but freedom for the thought that we hate.” It is precisely the right to articulate Nazi, or racist, or anti-Israel or any other opinion that is deeply offensive in certain circles that necessitates a legal right to free speech.

It is precisely the right of those who articulate some of the most  unpopular opinions of today — such as white supremacism or other expressions of racism — that the objectors to the anti-BDS laws do not defend. Their passion for free speech is selective and therefore suspect.

Take the case of the ACLU. The organization once defended the right to wear an American flag on the seat of one’s pants, but got cold feet on defending the white supremacists in Charlottesville. At first, the ACLU defended the supremacists, but then backed off, claiming that it had no First Amendment obligation to defend violence. But who knows in advance with respect to a demonstration by any extremist group whether there will, or will not, be violence? As it turned out, there was violence — with an automobile, not with the guns whose presence the ACLU used to justify its withdrawal from defending the supremacists. The ACLU now says it decides whose rights it will defend on a “case by case” basis. Hardly a ringing defense of the First Amendment! Bottom line: The ACLU of today is not the ACLU of yesterday.

The ACLU of today speaks up loud and clear only against, for example, laws that shield Israel from BDS leaders who would harm Israel. That is why we do not credit its cries of concern for free speech for those who object to anti-BDS laws. Free speech, truly to be free, must be for those who offend from the right as well as from the left side of the political spectrum. The ACLU once stood for that. No more.

Does a teenager have a right to wear a “MAGA” [Make America Great Again, i.e., pro-Trump] hat? Of course. But all we see in the recent hullabaloo over the Covington, Kentucky Catholic high school students is that they wore such a hat — not that they were abused in a fake news story if ever there were one. A Native American, who lied about being a Vietnam vet, did his best to provoke the boys, who were falsely reported to have been the offenders — all, it seems, in order to deny the boys their own free speech rights.

Any citizen has a right to object to the free speech of anyone else. One has the right to counter-protest against those who wear MAGA hats, against white supremacists, against neo-Nazis, as well as against the opponents of Israel. That is free speech, not shutting down those with whom one disagrees before they speak or while they speak.

II.

Free speech includes the right to voice objections to laws that ban boycotts of Israel.

But as to whether these anti-BDS laws are unconstitutional is an entirely separate question, and a complicated one. Do anti-BDS laws curtail constitutionally protected speech? It may seem to be an open-and-shut question, but it is far from it.

A federal judge in Arkansas recently ruled that anti-BDS laws do not violate the constitution. He prefaced his decision by writing:

“I routinely instruct jurors to follow my instructions on the law, even if they thought the law was different or think it should be different. This case presents an occasion in which I must follow the same principle, which is that I have a duty to follow the law even though, before researching the issue, I thought the law required a different outcome than the one ultimately reached.”

The judge found that a boycott of Israel is not protected speech under the First Amendment. Therefore, a law that forbids boycotts of Israel does not infringe on constitutionally protected speech. This is because a boycott — a refusal to participate in a commercial purchasing decision — does not communicate ideas through words or other expressive media. A boycott is not “inherently expressive,” as the court put it. Thus a boycott may legally be banned.

Another example: An association of law schools restricted military recruiting on campuses to express their opposition to “don’t ask, don’t tell.” That this boycott was illegal — was not protected speech — was upheld unanimously by the Supreme Court of the US. It held that the military recruitment — the conduct — was not inherently expressive. It was only when the rationale of the boycott was explained did it become expressive — the speech was protected, the boycott was not.

The court also held that there is no unfettered right to engage in a political boycott. When a boycott entails meetings, speeches and picketing events in opposition to Israel’s policies, for example, this is constitutionally protected and should be free from government interference. However, when a boycott entails purchasing decisions (as in the BDS boycott) and other “non-expressive” conduct, it does not fall under constitutionally protected speech. It may legally be banned. This is what the anti-BDS laws in some 25 states, including Colorado, do.

Put simply, BDS supporters can talk and meet against Israel and picket supporters of Israel. They cannot tell others not to buy from Israel.

Whether these holdings of the Arkansas court will be upheld as the case is appealed remains to be seen. But at least this much is clear: The right to boycott Israel may have no constitutional basis, and the right to ban boycotts of Israel may have a constitutional basis.

Beyond the legalities stands the inconsistency of the anti-Israel, BDS crowd. It manifests an ill  will toward the national liberation of the Jewish people, but not toward the national liberation of any other people. This is anti-Semitism. This is what undermines respect for the sudden passion for free speech of the BDS crowd.

Copyright © 2019 by the Intermountain Jewish News




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