On December 16, 2018 Bahia Amawi, an Austrian-born Texas resident of “Palestinian” descent, filed a civil action against the Pflugerville Independent School District and Texas Attorney General Ken Paxton claiming that the state’s anti-BDS (Boycott, Divestment & Sanctions) statute violates her constitutional rights to free speech. As noted by law Professor David E. Bernstein, the story, which was first reported radical left-wing Intercept, was wildly misleading in both tone and content. The Intercept disingenuously reported that school district compelled Amawi to file a “pro-Israel oath” before contracting with her for speech pathology services. As is the unfortunate case with today’s low standards of journalism, other media outlets regurgitated the story without performing the most basic rudimentary research of the facts.
In fact, the Texas statute prevents the state from entering into procurement contracts with or investing in companies engaging in BDS activity (emphasis added). The statute in no way, shape or form prevents or restricts Amawi in her individual capacity to engage in boycotts against Israel or for that matter, to engage in any form of anti-Semitic conduct. Unsurprisingly, Amawi has received backing from the American Civil Liberties Union as well as the Council on American-Islamic Relations (CAIR), a Muslim Brotherhood front group whose ties to radical Islamic entities and individuals is well documented. CAIR was also named as an unindicted co-conspirator in the Holy Land terror financing case.
In an effort to combat BDS, Twenty-six states have thus far instituted anti-boycott legislation and other states are in the process of doing so. Some, like New York, have enacted the law by executive order while others like Indiana have passed the law through the lengthier legislative process. Some states like Texas include in their anti-BDS laws territories administered by Israel, which would include the districts of Judea and Samaria, referred to by many as the “West Bank.” The statutes vary from state to state but generally prohibit contracting with boycotting entities or investing funds, like state pensions, in such entities.
Those opposing state anti-BDS legislation have generally centered their legal arguments on free speech grounds though other theories such as violation of the Dormant Commerce Clause have been posited. Lurking behind the scenes however, is an unbridled hatred of Israel and a malevolent ideology rooted in anti-Semitism.
In Amawi vs. Pfugerville, the plaintiff alleged that the Texas statute “chills constitutionally protected political advocacy in support of Palestine.” This allegation, which is so central to the plaintiff’s case, is patently false. As noted, nothing prevents Amawi from boycotting Israel in an individual capacity if she so chooses.
More importantly, the state has a compelling and fundamental interest in preventing and curbing invidious discrimination; in this case, discriminatory conduct based on national origin. On October 12, multiple states including Texas filed an Amici Curiae with the Ninth Circuit Court of Appeals arguing precisely that. They further argued that invalidating these constitutionally sound anti-BDS regulations would force states to engage in state-subsidized discrimination. Taxpayers, through state procurement contracts with boycotting entities, would be forced to foot the bill for companies engaged in odious discriminatory conduct.
The Amawi case has been overshadowed by another case involving Airbnb, a multi-billion dollar company that is set to issue an IPO sometime this year. Last month, the company announced that it was delisting some 200 Jewish-owned apartments in Judea and Samaria (rentals within the Golan Heights and East Jerusalem were unaffected). That action instantly sparked a furious backlash. The company is now facing four civil suits, three in the United States and one in Israel. Various municipalities in the U.S., from Beverly Hills, California to The town of Surfside, Fla., in Miami-Dade County have slammed the company and urged counter-boycotts. In addition, Vice President Mike Pence publicly condemned Airbnb’s actions in the harshest terms. Lastly, Airbnb’s action runs afoul of state anti-BDS legislation.
Florida and Illinois have both signaled that they will be taking immediate investigatory action against Airbnb based on violations of their respective states’ anti-BDS laws. Indeed, in December, the Illinois Investment Policy Board Committee on Israel Boycott Restrictions, which includes governor appointees as well as state pension board representatives, voted to inform Airbnb that it is in violation of Illinois’ anti-boycott statutes. Under Illinois law, Airbnb has 90 days to respond before it is placed on Illinois’ blacklist. Once on the list, the state would not be allowed to invest pension funds in Airbnb and the company would be banned from contracting with the state.
These developments are extremely problematic for Airbnb and the company is struggling to devise a coherent strategy to deal with the devastating backlash resulting from its newly enacted discriminatory policies. According to a report in Forbes, the Airbnb app is now preventing Arabs residing in Judea and Samaria from listing their properties, this in an apparent clumsy effort to demonstrate that Airbnb is not discriminating between Arab and Jewish rentals. Earlier this week, Airbnb announced that it would be reversing its initial ban on Jewish West Bank listings, only to reverse itself a few hours later with a vague and incoherent statement which stressed that “this is an incredibly complex & emotional issue.” The “clarification” only added to the confusion.
Clearly, Airbnb’s attempt at damage control is sinking the company deeper into the abyss. In the meantime, state committees are convening and Airbnb could well find itself blacklisted by more than half the states in the United States, and this does not include possible violations of federal anti-BDS regulations.
Ultimately, given the high legal stakes, it may very well be the Supreme Court that has the last word on state anti-BDS laws. The current 5-4 conservative composition of the court works in the states’ favor so there is every reason to believe that these laws will withstand constitutional scrutiny.
Irrespective of anti-BDS regulation, the BDS initiative as a whole has been a colossal failure. For all their work, they’ve only succeeded in discouraging a couple of B-list singers from performing in Israel. Oh, and Alice Walker, who believes in shape-shifting lizard people, didn’t allow her book to be translated into Hebrew.
In the meantime, Cisco, Apple, Google, Intel, Facebook & Microsoft are just a few of the tech giants with a major presence in Israel. These and other major technology companies are constantly developing new products in Israel. Israel with just over 8 million people has over 4,000 tech companies, and newly developed natural gas fields within Israel’s maritime boundaries have instantly transformed Israel into a major energy player as well. Energy contracts with Egypt, Jordan, Greece, Italy and Cyprus are in the works. Things have never looked brighter for the Jewish State, and haven’t looked worse for BDS.