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By: Deedee Bitran [1]

“Anti-Israel” has become a camouflage platform for expressing anti-Semitism under a more socially acceptable umbrella.[2] There is no “legal” solution to combat all of the ripple effects of anti-Semitism. Instead, educating the public with the knowledge necessary to discern anti-Semitic rumors from reality and passing remedial legislation are important steps to combatting bigotry and hatred.[3]

“Antisemitism” is the making of “stereotypical allegations about Jews as such or the power of Jews as a collective—especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.”[4] Anti-Israel is no longer a distinct concept from anti-Semitism, because the two concepts are so intertwined that they have fused into the same monster.[5] There are narrow instances where anti-Israel sentiment is wholly distinct from anti-Semitism, but that is limited to legitimate criticisms of Israel’s policies, not rationale grounded in anti-Semitic notions of Jewish power or influence.[6]

In response to anti-Semitism’s latest manifestation, the conduct associated with the “Boycott, Divestment, Sanctions” (BDS) movement, 6 state legislatures, including Florida, passed constitutional remedial legislation such as anti-BDS laws and over 10 state legislatures are in the process of passing anti-BDS laws.[7]

Pitched as a peaceful movement, BDS calls for boycotting brands that are Israeli-invented or sold within Israel to destroy Israel’s existence.[8] California Assemblyman Travis Allen cautioned, “BDS poses as a peaceful movement interested in ‘social justice’ for Palestinians. The reality is more sinister: The BDS movement seeks to delegitimize Israel’s very identity and existence and ultimately bring about its destruction and replacement with a Palestinian state, which would be dominated by the terrorist group Hamas.”[9]

The strongest predictor of campus anti-Semitism is a local BDS campaign.[10] Organizations that fund Hamas have been linked to funding the BDS movement.[11] Omar Barghouti, BDS’ founder, shared, “I clearly do not buy the two state solution… if the refugees were to return, you would not have a two state solution… You’ll have a Palestine next to a Palestine, rather than a Palestine next to Israel.”[12]

Courts cannot adequately address all problems fueled by anti-Semitic rumors that spiral out of control quickly. On social media, anything can spread at lightning speed, be deemed credible, and incite violence.[13] In response to Facebook calls for imminent violence against Israelis, 20,000 individuals sued Facebook.[14] Resorting to the courts is ineffective because a game of “whack a mole” ensues: when one website vanishes, dozens more emerge with identical agendas.

A Facebook user posted, “I could have annihilated all the Jews in the world, but I left some of them alive so you will know why I was killing them,” yet an Austrian prosecutor ruled that this anti-Semitic post was merely a legitimate way to criticize Israel.[15]

An anti-Israel post sparked this anti-Semitic comment: “Jews are born to create problems, just like they tried to create in Germany. But Hitler cleared all that trash. Likewise same is needed to be done by Palestinians. Eradicate and operate out this Jewish cancer.”[16]

Many images with the hashtags “#Gazaunderattack #Gazaunderfire” that purported to depict atrocities Israel committed in Gaza were subsequently confirmed as recycled photos taken years earlier in Syria and Iraq.[17] News sources rarely acknowledge that since 2007, Hamas determines what, if any, of the funds and materials entering Gaza actually makes it to its residents.[18] Annually, Hamas invests approximately $25,000,000 on terrorism.[19] Hamas confiscates and prevents UN aid from reaching Gaza’s residents.[20] Hamas uses human shields, operates within civilian homes, “prohibits or deters civilians from leaving areas likely to be targeted, and fires rockets from schools, mosques, United Nations facilities, and civilian residences.”[21]

While the media under-emphasizes Hamas’ role in Gaza, it frequently distorts headlines covering terrorist attacks on Israelis. A Time headline stated, “Two Palestinians Killed in West Bank After Knife Attack.”[22] That headline infers Palestinian bystanders were killed, likely by Israelis, with knives. The REAL story: two Palestinians stabbed a woman into “severe condition,” and the Israeli army subsequently shot the terrorists.[23]

Building on the media’s distortions, anti-Israel events which frequently call for BDS boycotts of Israel spread “hateful accusations against Israel, falsely claiming that Israel is guilty of apartheid, ethnic cleansing, genocide, and a number of other war crimes in an effort to demonize Israel by portraying it as the embodiment of the world’s true evils.”[24] Additionally, “[t]hese claims are rarely, if ever, balanced with an acknowledgement of Palestinian terrorism against Israeli civilians, [and] Israel’s continual efforts to make peace with the Palestinians.”[25]

BDS harms the legitimate interests of the general public, businesses, and America’s longstanding ally: Israel.[26] BDS seeks to cripple brands affiliated with Israel or that are Israeli invented, yet Israel is at the forefront of technological and medical innovation.[27] BDS’ boycott list includes: Nestle, Motorola, Hewlett-Packard, Starbucks, Coca Cola, Sodastream[28], Revlon, Victoria’s Secret, and Proctor & Gamble.[29] Even Disney was boycotted because Epcot’s exhibit acknowledged Jerusalem is Israel’s capital.[30]

A common misguided “reason” for BDS is that Israel is an apartheid state.[31] Apartheid, “separate development,” occurred in South Africa when laws prevented equal citizenship rights.[32]

Israel is not an apartheid state.[33] Approximately 20% of Israel’s citizens are Arabs.[34] Arab unions formed the third largest political party holding seats in Israel’s legislature.[35] Arab Israeli citizens “enjoy the full range of civil and political rights:” the right to politically organize, vote, speak, and publish freely.[36] They “serve as members of Israel’s security forces, are elected to parliament and appointed to the country’s highest courts.”[37] Jerusalem’s Hadassah Hospital treats terrorists and terror victims.[38] “Miss Israel,” an Ethiopian immigrant, shared, “Israel really accepts everybody.”[39]

Although courts cannot adequately address all problems stemming from anti-Semitism, anti-BDS legislation is a wise and constitutional alternative.[40] In March 2016, Florida passed anti-BDS legislation with almost unanimous bi-partisan support, pledging not to contract with businesses engaging in BDS.[41] “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.”[42]

Anti-BDS legislation doesn’t prohibit speech, beliefs, or boycott rights.[43] Businesses can display a “We Hate Israel” banner and not fall within the statute.[44] It bans conduct, like similar federal anti-boycott statutes that are held to be constitutional.[45] States can define the terms by which they spend funds and can refuse to subsidize discriminatory conduct.[46] “[R]efusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.”[47]

BDS conduct isn’t communicative content,[48] but if considered expressive, it isn’t immune from remedial legislation.[49] “Freedom of association plainly presupposes a freedom not to associate.”[50] Evidence presented to the U.S. House of Representatives Subcommittee on Terrorism, Nonproliferation, and Trade links some of the main sources of funding for BDS to organizations funding Hamas, a terrorist organization.[51] When expressive activities “produce special harms distinct from their communicative impact” they “are entitled to no constitutional protection.”[52] Alternatively, when contracting, states are market participants and can refuse to subsidize entities without First Amendment infringement.[53]

In short, there is no legal remedy to cure all ripple effects of anti-Semitism. Fortunately, education can curb the frequency that people actually believe and spread anti-Semitic lies such as “Jews own the media.”[54] Additionally, states can constitutionally refuse to subsidize entities engaging in discriminatory boycotts of Israel with anti-BDS legislation.[55]

[1]    Many thanks to the following scholars for their guidance: Professor Alan Dershowitz (Harvard Law School), Professor Mark Goldfeder (Emory University School of Law), Professor Eugene Kontorovich (Northwestern University School of Law), Professor Elizabeth Price Foley (Florida International University College of Law), Professor Marci Hamilton (Cardozo School of Law), Professor Elliot Bartky (Indiana University–Purdue University Fort Wayne). The author of this Post, Deedee Bitran, takes sole responsibility for the conclusions reached and is extremely grateful to the aforementioned professors.

[2] See, e.g., (Referring to the BDS movement and anti-Israel sentiment, and noting that “[t]his form of discrimination is more sophisticated than the coarse anti-Semitism of the past, but that only makes it more dangerous and tougher to prove.”);  (In March 2016, the University of California adopted a policy linking anti-Semitism to anti-Zionism because “manifestations of anti-Semitism have changed as a result of debates over Israel on college campuses and expressions of anti-Semitism are more coded and difficult to identify. . . .  opposition to Zionism often is expressed in ways that are not simply statements of disagreement over politics and policy, but also assertions of prejudice and intolerance toward Jewish people and culture.”) (internal citations omitted); (France’s Prime Minister Valls equated anti-semitism with anti-Israel, stating: “Anti-semitism, this old European disease . . . [has taken] a new form. It spreads on the Internet, in our popular neighborhoods, with a youth that has lost its points of reference, has no conscience of history, and who hides itself behind a fake anti-Zionism.”); (“On college campuses, in the press, and among political leaders worldwide, Jews are often targeted by way of denouncing Israel. When Jews raise this concern, maligners regularly argue that they were not being anti-Semitic, but anti-Israel or anti-Zionism.”); (Anti-Israel chants and blocking of hallways during a pre-Hannukah celebration, a Jewish holiday, at York University in December 2015); (using the two concepts of anti-Semitism and anti-Israel interchangbly, people defaced bathroom doors with swastikas and drew graffiti “413 feet from the UC Berkeley Hillel house,” a place for students to celebrate Jewish holidays, stating “Death to Israel” and “Kill all the Jews.”); (At USF, the student government attempted to pass a boycott on Israel resolution and a USF student stated, “My eyes were opened to the terrifying reality that anti-Semitism still exists, when the Senate passed a bill calling on the University to divest from Israel. It was claimed by the sponsors of the resolution that it is not anti-Semitic. How can this be the case when the only country mentioned in the resolution as the sole violator of human rights in the world is Israel?”) (emphasis added).

[3]   See generally Rust v. Sullivan, 500 U.S. 173, 193 (1991) (“The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. [A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.”) (internal quotations omitted); (highlighting the importance of objective journalistic integrity after Ambassador Danon’s visit to Florida International University was misrepresented in the school newspaper); (highlighting various media misrepresentations that characterize terrorist assailants as victims).


[5]  See generally (The United States Commission on Civil Rights has stated, “Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.”); (“there is a strong correlation between ‘anti-Zionist’ campus groups (like Students for Justice in Palestine) and antisemitism: 99% of schools with one or more active anti-Zionist groups had one or more incidents of antisemitic activity, whereas only 16% of schools with no active anti-Zionist student group had incidents of overall anti-Semitic activity.”) (internal citations omitted);

[6]  For example, claiming that a candidate for public office must speak “kindly” about Israel because “the Jews own every media outlet” is blatant anti-Semitism– it is expressing anti-Semitic sentiment grounded in Jewish power while using the concepts of Israel and Jews interchangeably. (antisemitism: “stereotypical allegations about Jews as such or the power of Jews as a collective—especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.”); see also (“Yes, there are many individual Jews in positions of influence in Hollywood, in network television, in sports and entertainment, and in many other areas of American public life. These individuals, who happen to be Jewish, do not act together in any kind of conspiratorial manner. There is no ‘Jewish control’ of any of these areas — or of the many other areas, such as medicine, law, academia, finance — where there are large numbers of individual Jews in high positions. . . . So let’s stop all this nonsense about Jewish control over the media and praise those individual Jews who, by dint of hard work and talent, have earned their place, as individuals, in so many areas of American life. I always thought that was the American dream.”); (“People who have faced death for the crime of being Jewish will be more than happy to tell you that “Jews run the world” is the oldest trick in the book. It predates the rise of Hitler. It predates the Protocols of the Elders of Zion. As long as Jews have been minorities in the world around them, they have been dealing with this garbage.”)

[7]  Florida, Illinois, Indiana, Colorado, Tennessee, Arizona, South Carolina, Virginia, New York, Pennsylvania, Georgia, New Jersey, Alabama, Iowa, Kentucky, California, Ohio, Massachusetts, Texas, and Louisiana have passed anti-BDS laws or are in the process of passing such laws. See generally (Florida passes anti-BDS law: SB 86); (Arizona passes anti-BDS law: HB 2617); (Indiana passes anti-BDS law: HB 1378); (Colorado passes anti-BDS law: HB 16-1284); (Illinois passes anti-BDS law: SB 1761) ; (Tennessee passes anti-BDS law: SJR 170); (detailed chart on anti-BDS legislation in different states); (Virginia); (Alabama); (Indiana passed anti-BDS legislation and noted that BDS “represents an attack, not only on Jews, but on the fundamental principles of the United States.”); (New York); (New Jersey); (Iowa); (New Jersey); (Kentucky); (Ohio); (Texas); (Pennsylvania); (Tennessee); (Tennessee Governor stated BDS is “one of the main vehicles for spreading anti-Semitism and advocating the elimination of the Jewish state,’ adding that BDS activities in Tennessee ‘undermine the Jewish people’s right to self-determination, which they are fulfilling in the State of Israel.”); (Illinois); (Georgia); (Arizona); (Colorado); (California); (Louisiana); (Massachusetts); (South Carolina);;

[8] See generally (BDS’ founder, Omar Barghouti shared, “a BDS campaign should have a realistic chance of success, beyond simply raising awareness, such as persuading an international company or institution to end support for an Israeli company.”);; (Bernie Sanders, when referencing BDS, stated, “not to appreciate that there is some level of anti-Semitism around in that would be a mistake.”); (A BDS advocate and professor at California State University shared, “Finkelstein rightly asks whether the real aim of BDS is to bring down the state of Israel. Here, I agree with him that it is. That should be stated as an unambiguous goal. There should not be any equivocation on the subject. Justice and freedom for the Palestinians are incompatible with the existence of the state of Israel.”); (Lara Kiswani, executive director of the Arab Resource and Organizing Center discussed BDS and shared, “Bringing down Israel will really benefit everyone in the world and everyone in society, particularly workers.”)

[9] ; see also (Florida Governor Rick Scott stated, “The Boycott, Divestment and Sanction movement is fueled by anti-Semitism, and has no place in Florida or any part of the world that values freedom and democracy. The state of Florida stands firm with our ally Israel and will not support those that participate in this intolerant movement.”); (The Village of Bal Harbour passed anti-BDS legislation and Councilman Groisman declared, “Make no mistake about it. The BDS movement is a global propaganda campaign against Israel that serves as thin cover for anti-Semitism – the levels of which we have not seen in the Western World in over 60 years.”); (Assemblyman Matt Dababneh explained, “California sends a clear message that taxpayer funded state contracts will not go to organizations or companies that engage in discrimination against U.S. Democratic allies, especially Israel. In our business relationships, California must avoid giving the appearance of endorsing organizations that seek to harm our close allies or further discriminatory agendas like the BDS movement, and this bipartisan legislation, AB 1552, sends a strong message that California will not support such discriminatory or anti-Semitic efforts.”).

[10], at 15; see also (Ayelet Shaked, Israel’s Justice Minister, shared some of the BDS activists “Act out of naïveté and a desire to support human rights. They do not know the facts. But those who know the movement’s founder Omar Barghouti know that the movement acts against the existence of Israel as a Jewish and democratic state.”)

[11], at 11 (“I should emphasize here that it is not my place to say where Americans should direct their charitable giving, or what anti-Israel activists may say or do. What I have provided today is simply a network analysis. Americans have a right to know who is behind the BDS campaign. And so do those members of the BDS campaign who may not fully understand its history.”);

[12] (Video of Omar Barghouti, see video at 1:09, as Omar expresses his own views while agreeing and endorsing by reference a Palestinian commentator’s prediction of the outcome of BDS: a Palestine next to a Palestine, not a Palestine next to Israel).

[13] See also (German lawyers filed a criminal complaint against Facebook for anti-Semitic hate speech.)

[14] See; see also (The Wall Street Journal reported on a study where 2 Facebook pages were created– 1 anti-Israel and 1 anti-Palestine– with similar material on the pages calling for the destruction of either Israel or Palestine. When the researchers reported both pages, Facebook only chose to shut down the page that was anti-Palestine. Instead of shutting down the anti-Israel page, Facebook curtly stated that it was “not in violation of Facebook’s rules,” yet the same type of remarks on the anti-Palestine page were worthy of shutting the page down within 24 hours for “containing a credible threat of violence” that violated community standards.)

[15] See;

[16] (scroll down by comments, click “View more comments,” scroll down to the comment from username: “Aashiq Hussain.”); see also (Article attempting to rationalize Palestinian terrorist attacks on “Jews” due to the Palestinian’s disagreement with “Israel’s” actions, yet conveniently equating “Israel” with “Jews” while ignoring that Israeli citizens consist of Jews AND Arabs. The article reasons, “Young Palestinians do not go out to murder Jews because they are Jews, but because we are their occupiers, their torturers, their jailers, the thieves of their land and water, their exilers, the demolishers of their homes, the blockers of their horizon. Young Palestinians, vengeful and desperate, are willing to lose their lives and cause their families great pain because the enemy they face proves every day that its malice has no limits.”)

[17] (detailed analysis of false photos circulating the internet); (“Some of the images are of the current situation in Gaza, but a #BBCtrending analysis has found that some date as far back as 2009 and others are from conflicts in Syria and Iraq.”);; (“The British Broadcasting Corporation has revealed that photos circulating on social media under the hashtag #GazaUnderAttack are not images from the current airstrikes in Gaza.”)

[18]See generally; Michael N. Schmitt, The Tyranny of Context: Israeli Targeting Practices, 37 U. Pa. J. Int’l L. 53, 59 (2015) (noting the importance of Hamas having been in control of Gaza since 2007); see also (detailing Hamas’ war crimes under international law).

[19]See (“each year, Hamas invests nearly NIS 100 million ($25 million) alone on smuggling materials for manufacturing weapons and setting up tunnels.”); (600,000 tons of cement was used for Hamas’ underground network of terror tunnels); (“If Hamas cared about the well-being of its citizens, it would use that money to build schools and public works or invest in businesses. Instead, Hamas devotes its scarce resources to building a terror economy of tunnels and rockets and sending its young men to die in suicide raids. That is why Gaza is impoverished.”)

[20] (Hamas confiscated about 3,500 blankets and 400 food parcels in the midst of the United Nations attempt to aid Gaza residents); Regina Goff, The Legality of Israel’s Blockade of Gaza, 8 Regent J. Int’l L. 83, 104 (2011) (“the United Nations Relief and Works Agency (UNRWA) suspended all imports of aid into Gaza for a time because, twice within three days, truckloads of food, blankets, and other supplies meant for the poor in Gaza were confiscated, once by the Gaza Ministry of Social Affairs and once at gun point from a distribution center.”); (The United Nations Relief and Works Agency suspended its aid to Gaza due to Hamas’ theft of supplies meant for Gaza residents and the “suspension of imports will remain in effect until the aid is returned and the Agency is given credible assurances from the Hamas government in Gaza that there will be no repeat of these thefts.”)

[21] Michael N. Schmitt, The Tyranny of Context: Israeli Targeting Practices, 37 U. Pa. J. Int’l L. 53, 69 (2015).



[24]; see also, at 16 (Over 150 anti-Israel rallies and social media posts demonized or delegitimized Israel with rationale grounded in classic anti-Semitic notions of Jewish evil and power).

[25]; see also (discussing the “lopsidedness and relentless of critique” on Israel which is “fueled by a fundamental rejection of the idea of a Jewish State.”).

[26] See generally;

[27] See generally (“Israel produces more scientific papers per capita than any other nation and has the highest number of scientists and engineers per capita than any other country in the world.”); (One in four life science innovations has Israeli roots); (Israel’s agricultural innovations); (list of Israeli inventions including Rummikub, baby monitors, computer processors, amniocentesis, and the Uzi machine gun); (“62 Israeli startup companies were sold for a whopping $7.2 billion in 2015”); (In support of anti-BDS legislation, California Assemblyman Travis Allen shared, “it’s my conviction that any company that is intentionally inflicting economic harm on the state of Israel is not economically aligned with the values of California’s residents and is undeserving of California’s financial investments.”); (“Bill Gates observed in 2006 that the “innovation going on in Israel is critical to the future of the technology business.”); (Alabama House Speaker Victor Gaston, stated “I am proud to have had a role in the House Rules Committee assisting with the now unanimous passing of this important Resolution. The Boycott, Divestment, and Sanctions movement has no place in the State of Alabama as it harms the United States’ greatest ally and friend to Alabama, Israel.”).

[28]; (Sodastream provided jobs for everyone and workers indicated that they were treated equally. “‘Everyone is treated the same here. The privilege that the Israeli worker gets, the Palestinian also gets,’ said [Palestinian worker] Rani Abed Rabbo, who was offered a management position by SodaStream after losing his job in the hi-tech sector. ‘There is no discrimination here. We eat together, we laugh together. We feel welcome here.’”); see also (video of Sodastream workers describing their equal treatment and satisfaction with their jobs with Sodastream.)

[29] Other Israeli inventions include: Teva medications, solar powered windows, and the Waze application for smart phones, just to name a few. See generally;;;;

[30] See; (United Arab Emirates culture minister stated, “We can do a lot of damage to this company’s business.”)

[31] One of the false statements that BDS spreads to support the statement that Israel is apartheid is that Israel has “Jewish only” roads. This is an entirely false statement. Israel has roads that only Israelis can drive on, but “Israelis” includes both Arabs and Jews. Approximately 20% of Israeli citizens are Arabs. See;;;

; (dispelling the misleading notion that Israel has “50 discriminatory laws” because such a statement is “patently false claim” and a “propaganda talking point that no responsible media outlet should repeat.”)

[32] See

[33] See (Kenneth Rasalabe Joseph Meshoe, a South African member of Parliament and President of the African Christian Democratic Party stated, “Those who know what real apartheid is, as I know, know that there is nothing in Israel that looks like apartheid. . . . [The] BDS movement is not a democratic movement; they are a movement of intimidation, a movement that performs hatred.”); (Israel’s Declaration of Independence provides that Israel will “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture. . . . in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.” ); see also; (former justice of the South African Constitutional Court during the apartheid era explains that Israel is not an apartheid state).



[36] See

[37]; (Arab Israeli female elected to Knesset, the Israeli legislature).

[38] See generally–israeli-and-palestinian–work-together-to-heal-wounds-of-war/2015/10/25/b8f62240-78c5-11e5-a5e2-40d6b2ad18dd_story.html (A Hadassah Hospital doctor shared that when it comes to treating patients, the doctors treat everyone equally: “[w]e don’t ask who you are. We treat the terrorist the same as we treat the victim.”); (Israeli Arab doctor at Hadassah Hospital explains that the hospital treats both Arabs and Jews: “I am an Israeli Arab, this is my country, I feel the same as Yochi (Doctor Schiffman) feels. It’s my country and I’m doing my job. . . I don’t wake up in the morning and start thinking ‘I’m an Arab not a Jew’ and such things, I am focused on patient treatment, that’s all.”),7340,L-4712411,00.html (Highlighting that Hadassah Hospital serves all patients, regardless of citizenship or the reason for needing treatment. Despite the tensions within Israel, a doctor shared, “at least at the hospital there is a different atmosphere. We work together, we provide treatment to all patients, no matter their religion or race, whether they’re rich or poor, Israeli or not.”)

[39] See; see also (“Israel also welcomes immigrants of all faiths. Hundreds of refugees from violence in Africa have come to Israel, as have refugees from Asia. Arabs also make up nearly twenty percent to the country’s citizens.”)

[40] See generally Rust v. Sullivan, 500 U.S. 173, 193 (1991) (“The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.”) (internal quotations omitted).


[42] Rust v. Sullivan, 500 U.S. 173, 193 (1991).

[43], at 3-6 (noting that Claiborne Hardware’s holding that boycotts are protected is inapplicable to BDS conduct and anti-BDS legislation does not run afoul of the First Amendment); Individuals do not have a First Amendment right, nor any constitutional right, to force states to spend taxpayer funds to contract with them. (Democratic state senator Felder stated, “The legislation doesn’t prevent anyone from speaking or promoting a boycott, nor from making other vile and prejudicial statements. . . That’s a person’s constitutional right. But they don’t have a constitutional right to be a New York State contractor.”); Professor Elliot Bartky at Indiana University–Purdue University Fort Wayne explained, “Anti-BDS legislation passed in Indiana and other state legislatures is constitutional and does not infringe on First Amendment rights. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), provides that boycotts are constitutional, but that case does not provide a legal basis for the inferential jump that states must fund economic entities choosing to engage in a boycott.” (email exchange between Bitran and Professor Bartky’s quote provided to the FIU Law Review); see also Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (upholding a federal statute that criminalized knowingly providing support or materials to foreign terrorist organizations and noting that the statute did not prohibit freedom of association nor freedom of speech); (“Claiborne cannot reasonably be read to stand for the proposition that any statutory regulation of boycott activity is tantamount to a complete prohibition or, put another way, that any regulation of boycott activity is constitutionally impermissible. Again, reliance on Claiborne in the context of BDS is wholly inappropriate.”)

[44] (Northwestern University’s Professor Kontorovich explained, “A business could call for a boycott of Israel organize rallies to this effect—and not be affected by this legislation. The current laws do not deal with consumer boycotts at all, but with boycotts by businesses, which are far more conduct than expression.”)

[45] See Karen Maritime Ltd. v. Omar Int’l Incorp., 322 F. Supp. 2d 224, 227 (E.D.N.Y. 2004) (opining that a federal anti-boycott statute is constitutional and noting that it “was intended to stop the secondary and tertiary boycotts that Congress considered detrimental to both the United States and Israel.”) (internal citations omitted); 50 U.S.C.A. § 4602(5)(A) (“It is the policy of the United States– to oppose restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries friendly to the United States or against any United States person.”); see also Regan v. Taxation With Representation of Washington, 461 U.S. 540, 551 (1983) (“The issue in this case is not whether TWR must be permitted to lobby, but whether Congress is required to provide it with public money with which to lobby. For the reasons stated above, we hold that it is not.”).

[46]See Reeves, Inc. v. Stake, 447 U.S. 429, 438 n.10 (1980) (“States may fairly claim some measure of a sovereign interest in retaining freedom to decide how, with whom, and for whose benefit to deal.”); Regan v. Taxation With Representation of Washington, 461 US. 540, 549 (1983) (“We have held in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.”); U.S. v. American Library Ass’n, Inc., 539 U.S. 194, 203 (2003) (“Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives.”). The First Amendment protects a person’s right to believe that homosexuality is evil. The First Amendment protects a person’s decision to “boycott” homosexuals. However, as President Obama explained when signing the executive order banning such discrimination in government contracts, “America’s federal contracts should not subsidize discrimination.; see also (New York banning travel to states that pass anti-LGBTQ legislation like North Carolina); see generally (Northwestern University’s Professor Kontorovich explained that anti-BDS legislation is constitutional: “[t]he federal government has long used restrictions on contractors as a way to promote various social values. Thus contractors have been required to abstain from a variety of otherwise legal activities, like not practicing affirmative action. And state pension funds have long engaged in “socially conscious” investing, avoiding investing in companies on the basis of their environmental, employment or labor practices.”); National Endowment for the Arts v. Finley, 546 U.S. 569 (1998) (opining that Congress enjoys wide discretion when setting spending priorities which can affect some forms of expression and the decision to not fund an activity is constitutional).

[47] Harris v. McRae, 448 U.S. 297, 317 n.19 (1980).

[48] (“Even with Israel boycotts, the act of boycotting itself does not explain its motives, or express any political viewpoint. Companies may boycott Israel to prevent further harassment from the BDS movement; to curry favor with Arab states; or out of mere anti-Semitism; or to protest particular policies of Israel’s. Unless the company explains, its action has no message. That is why the action is not speech, only the explanation.”); see also Biggs & Stratton Corp. v. Baldrige, 728 F. 2d 915, 917 (7th Cir. 1984) (upholding a federal anti-boycott law while explaining the difference between protected communication of views on the Arab boycott of Israel versus conduct, which is not protected.)

[49] Runyon v. McCrary, 427 U.S. 160, 176 (1976) (“while invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances . . . ”) (internal quotations omitted); see also, at 15 (“engaging in activities like the promotion of foreign boycotts that interfere with government policy and the free functioning of commercial markets is not protected by the First Amendment.”); (New York’s executive order bans “all taxpayer-funded trips to North Carolina, unless they’re essential to public health or law enforcement” in reaction to North Carolina passing anti-LGBTQ laws); (Washington and Vermont halt expenditure of state funds on official state travel to North Carolina due to North Carolina’s controversial anti-LGBTQ legislation).

[50] Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (internal quotations omitted); see also, at 12 (“While the First Amendment generally protects the right to engage in a wide variety of protest activities, as the Claiborne and Longshoremen courts explained generally, and other cases have held specifically, the First Amendment is not absolute.”)

[51], at 1 (“In the case of three organizations that were designated, shut down, or held civilly liable for providing material support to the terrorist organization Hamas, a significant contingent of their former leadership appears to have pivoted to leadership positions within the American BDS campaign.”); (“Americans have a right to know who is leading the BDS campaign and so do the students who may not be aware of AMP’s leaders or their goals.”).

[52] Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984) (noting that conduct is not cloaked in protection by having a speech component); National Endowment for the Arts v. Finley, 524 U.S. 569, 587–88 (1998) (“we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake. So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities.”); Refusing to subsidize discriminatory conduct such as BDS is not a “penalty” under a constitutional analysis because there is no constitutional right to such state funds in the first place. See U.S. v. Am. Library Ass’n, Inc., 539 U.S 194, 212 (2003) (“CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to subsidize their doing so. To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance.”) (internal quotations omitted).

[53]See Dep’t of Rev. of Ky. v. Davis, 553 U.S. 328 (2008) (holding that only state’s actions as a regulator are subject to the dormant Commerce Clause, but state actions as a market participant, like an bond issuer, are not.); Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (“In Commerce Clause cases, for example, a basic distinction exists between States as market participants and States as market regulators. Similar distinctions exist with respect to the First Amendment.”) (internal citations and quotations omitted); Mason & Dixon Lines Inc. v. Steudle, 683 F. 3d 289 (6th Cir. 2012) (finding that when a state contracts to build a road, it is acting as a market participant that is financed by state and federal funds); see generally (Northwestern University’s Professor Kontorovich discussed the constitutionality of anti-BDS legislation: states are “implementing laws that use state contracting power to fight back against racism.”); (“governments can, without any constitutional question, attach conditions relevant to the actual expenditure of funds. A state can reasonably decide that a company that boycotts Israel puts politics ahead of business considerations in a way that makes the company less effective and harms contract performance: For example, a company may fail to use the best subcontractors, products, or partners because of their national origin and thus simply do a worse job. Such a determination is well within the legitimate scope of legislative judgment.”); Reeves v. Stake, 447 U.S. 429 (1980) (characterizing South Dakota as a market participant in the sale of cement and noting that to hold otherwise would rob South Dakota of its “foresight, risk, and industry.”); Independent Charities of Am., Inc. v. Minnesota, 82 F. 3d 791, 801 (8th Cir. 1996) (“we hold that the exclusion of non-local fund raisers from the Campaign does not violate plaintiffs’ First Amendment right to free speech or their rights to equal protection and due process. We further hold that the State is a ‘market participant.’”); Park Shuttle N Fly, Inc. v. Norfolk Airport Auth., 352 F. Supp. 2d 688, 706 (E.D. Va. 2004) (noting that when government bodies operating airports are acting as market participants, “its regulations are subject to less First Amendment scrutiny.”).

[54] See footnote 6 (“Jews own the media”) and footnote 31 (Jewish only roads is an entirely false statement- Israel has roads that only Israeli citizens may use, but Israeli citizens consist of 20% Arabs); see also (“We have to be anti-racist because it is the right thing to do. Because this is our university, and as long as Stanford means something to us, we have to do our part to make sure it embodies the very best of American academic life. Is this really what we want our home to be? A place where it’s OK to make anti-Semitic arguments? A place where it’s OK to turn the clock back to 1903?”)

[55] BDS conduct is discrimination based on national origin because it discriminates based on a brand’s origin, Israel, or a brand’s affiliation with Israel. (discussing how the academic boycott of Israel could leave universities susceptible to liability under Title VII); (in France, “promoters of a boycott against Israel were found guilty of inciting hate or discrimination and fined a collective $14,500”); (France found BDS boycotters guilty of discrimination).

Deedee Bitran is an Articles/Comments Editor at the FIU Law Review.  Mrs. Bitran can be reached at