Article
Amicus Curiae Blog (April 17, 2022)

A Look at the Rise of Anti-BDS Laws in the United States

By Monica Shaffer

I. Introduction

Over the last ten years, bills that prohibit freedom of expression have been proposed and even passed at disturbingly high rates by both state and federal legislative bodies, but they slide under the radar. They go ignored because they are passed to “support” one of the United States’ greatest allies, Israel.1 These bills, known in activist circles as “anti-BDS” bills, are passed to prevent government agencies (including schools, legislatures, and employers) from contracting with anyone (a person or entity) that supports the “BDS” movement, a form of nonviolent resistance against the state of Israel. These bills are passed under the guise of curbing antisemitism2 and anti-Israel sentiment. However, this Article will demonstrate that the purpose of these bills has not been achieved and, in fact, the bills are unconstitutional and should be struck down.

This Article begins with a review of the circumstances that gave risk to the passage of these bills: what the situation in Palestine has to do with the United States, what is the Boycott, Divestment, and Sanctions (“BDS”) movement, the rise of antisemitism in the United States, and discrimination against Palestinians in the United States. After this framework has been laid, the Article will explain the types of anti-BDS bills and their scope in the United States. Finally, data will be presented to show how the objectives of these bills have not been met, demonstrate that the bills are unconstitutional, and examine the current posture of these bills. Because Minnesota passed one of these anti-BDS laws, this Article will use Minnesota to provide examples and illustrations. However, the stories provided from Minnesota can be found elsewhere in the country.

II. General Background

This section will provide a general overview of several issues important to fully understanding the purpose and passage of the anti-BDS laws. First, this section will provide a very basic explanation of the role the United States plays in the human rights violations committed by Israel in Palestine; second, it will explain what BDS is; third, it will provide data on the rise of antisemitism in the United States and the likely cause; and finally, it will provide facts to demonstrate the discrimination against Palestinians in the United States.

a. The Situation in Palestine

Palestine, or the occupied territories of Palestine, includes the West Bank, East Jerusalem, and the Gaza Strip. These territories are effectively under the control of Israel. However, despite this occupation the territories are not treated in accordance with international law.3 Since 1946, the United States has played an important role in the development of what is now called Israel. President Truman publicly declared support for the creation of a Jewish state4 and since then the relationship has blossomed. The United States provides exorbitant funds to Israel—well over $236 billion.5 Most of this money goes directly to the Israel Defense Forces, helping “Israel develop one of the most advanced militaries in the world” and purchasing materials directly from the United States in order to build this military.6 In exchange, Israel supports the United States. In addition to purchasing military equipment from the United States, Israel provides research to develop new defense systems, conducts testing on Untied States weapons, and collects information for United States intelligence operations.7 After the products (weapons and surveillance) are tested, they can be sold and advertised as having been used in combat conditions. However, the combat conditions referenced in these advertisements are demolitions of Palestinian homes, suppression of any Palestinian resistance against settlers or settlements, and other oppressive conditions imposed by Israel in the occupied territories.8 The United States’ funding of Israel, and Israel’s reciprocal research and testing of United States equipment, creates a mutually beneficial relationship, of which most Americans are unaware.9 This lack of awareness helped create the BDS movement.

b. BDS Explained

To protest the human rights violations, raise awareness of what is happening to Palestinians, and to separate themselves from the relationship between the United States and Israel, American activists reawakened an old tactic of non-violent resistance: Boycott, Divestment, and Sanctions. BDS has been a form of protest for decades, successfully helping to bring about racial justice reform in the United States and end apartheid in South Africa.10 Now it is being used to put economic pressure on the state of Israel so that it falls into step with international humanitarian law.11 This requires Israel to provide Palestinians access to resources, freedom of movement, security of their person, elimination of the border wall, removal of the settlements from the occupied territories, and equal treatment toward Palestinians under the law of Israel.12

To participate in BDS, participants (individuals, entities, or governments) do three things: boycott, divest, and sanction. To boycott means to withdraw funding or support from all sporting, cultural, and academic institutions of Israel as well as Israeli international companies that are complicit in the violations against Palestinians.13 To divest means withdrawing investments from Israel and Israeli international companies that sustain the discriminatory practices.14 And to sanction means urging governments to refuse aid or assistance to Israel by prohibiting trade agreements, preventing Israeli membership in international forums, prohibiting business with Israeli settlements, and ending military cooperation and support.15

Anyone in the world can participate in BDS, including Americans, Israelis, Europeans, Africans, etc. BDS has garnered sympathy and support from groups around the world, including Native Americans, Irish, and South Africans. Rebecca Miles, a leader of the Nez Perce Native nation, stated, “[w]hen it comes to Palestinian issues, there is no difference. It is another indigenous group of people being kept from their own waterways, resources and ways of life.”16 In 2021, Ireland voted unanimously to condemn “Israel’s ‘de facto annexation’ of Palestinian land,” because they, too, know what it means to live under occupation and colonization.17 South African dock workers went on strike to prevent the import of Israeli goods and the admission of their ship into the Durban port as part of South African solidarity with BDS for Palestine.18

Palestinians and BDS should be supported by all “who are impacted by United States and Israeli militarization policies, practices, and technologies.”19 The violence used against oppressed people is largely the same: border walls, check points, blurred responsibilities between law enforcement and military, and separate policies for minorities that allow lethal state interventions.20 To solidify this picture, consider how Latinx immigrants are treated at the southern border of the United States, or Native Americans, or Black Americans, or African Americans. The harm done to all these groups, including Palestinians, is markedly similar. Because of the violence done to Palestinians at the hands of the Israeli government and military, BDS was reawakened to try and raise awareness and bring an end to the illegal actions.

c. Rising Antisemitism in the United States

Concurrent with the abuse of Palestinians and the rise of the BDS movement is the continued existence of antisemitism in the United States. In the United States, support for Israel continues, antisemitism is on the rise, and BDS has been dubbed the culprit. However, the true cause of the increase in antisemitism is the rise of alt-right politics.

Because BDS opposes the actions of Israel against Palestinians, it has been mistaken as antisemitic; however, Jews around the world have come out to support the BDS movement. The BDS movement supports human rights and calls out oppression, so it naturally aligns with Judaism. For example, the international organization, Jewish Voice for Peace, is a strong supporter of BDS because participation in BDS is an extension of the Jewish faith and is an extension of their Jewish ancestors who resisted injustice and fought for freedom.21 One Minnesotan, a descendant of Holocaust survivors, testified at the Minnesota House of Representatives, saying, “’I understand anti-semitism. BDS is not anti-semitic.’”22 A research study conducted by the Pew Research Center found that in the United States, those who identify as Jewish feel there is an important link between the belief that Israel is sincerely pursuing a peace deal with Palestinians and support for BDS: if the person does not think Israel is sincere in peace negotiations with Palestine, then they are far more likely to support the BDS movement.23 This demonstrates a correlation between Jewish-American distrust of the Israeli government and an increase of that person’s willingness to find alternate ways to promote justice. Simply because Israel is a Jewish state does not mean that targeting Israel targets Judaism or Jewish people. Support for BDS by Jews around the world helps demonstrate the movement is not antisemitic.

In the United States, there has consistently been bipartisan support for Israel and there are many reasons for this; most relevant for this Article is the relationship already explained: Israel receives funds from the United States and uses those funds to purchase materials and create military equipment. However, despite this bipartisan support for Israel, antisemitism sharply increased in the United States around the 2016 election. In 2017, the Anti-Defamation League (“ADL”) reported “more than double the rate of anti-Semitic incidents . . . [from] the first three quarters of the previous year.”24 And this has continued to rise. ADL’s 2017 Audit of Antisemitic Incidents in the United States stated that over 2,100 incidents of assault, vandalism and harassment had occurred, an increase of 12% from the previous year. “This is the highest level of antisemitic incidents since ADL’s tracking began in 1979.”25 In fact, this number has continued to rise and in 2021 there were 5,373 incidents.26 While this rise is often linked to growing support for Palestinian rights, that is not true. The rise of antisemitism is due to the rise of alt-right politics, of which antisemitism is a fundamental part.27

Alt-right political groups seek to preserve the United States’ “traditional Christian values” but only those values that support “uniquely white supremacist perspectives;” people who participate in alt-right political groups are known as white supremacists.28 Some alt-right opinions go so far as to believe that civil rights issues advocating for non-white and non-Christian people are “equivalent to ‘white genocide.’”29 This rhetoric can be seen throughout alt-right political groups and was encouraged by the United States president elected in 2016, Donald Trump.30 In the first three months of that presidency, antisemitic activity increased by eighty-six percent in the United States.31 Existence of white supremacy has continued throughout the years since 2016 and is the primary culprit of the increased antisemitic incidents in the United States, according to the ADL.32 Public displays, like “Unite the Right,” and implied acceptance of these actions by electing a white supremacist presidential candidate33 form a clear connection to the rise of antisemitism in the United States. BDS is not to blame for the rise of antisemitism.34

d. Discrimination against Palestinians in the United States

The last area of general understanding that must be developed to best understand the creation and passage of anti-BDS laws is the discrimination against Palestinians in the United States. Although the BDS movement has not caused the rise of antisemitism in the United States, there is evidence that it has caused the rise of discrimination against Palestinians and Palestinian sympathizers in the United States.

Data that tracks discrimination against Palestinians in the United States is minimal, as the United States does not recognize Palestinian as an identity, but there are organizations that track Arab and Muslim discrimination generally. From these details it is possible to identify incidents that specifically target the person because they are Palestinian. In 2021, the American-Arab Anti-Discrimination Committee (“ADC”) heard an increase in reports from individuals being punished by their employer for personal social media posts with pro-Palestinian sentiments.35 These discriminatory employers then questioned the individuals about “their national origin, their religion and whether they [spoke] Arabic.”36 The ADC has also represented clients in litigation who were targeted because of their identity as Palestinian community members.37

Some discrimination is targeted specifically for participation in the BDS movement. If a person attempts to educate others about the BDS movement, its actions, or its purpose (human rights violations happening in Palestine), they often become a target of discrimination and hate crimes. One example of this is a website called the Canary Mission.38 This site was created to identify Palestinian or Palestinian sympathizers at United States colleges and universities.39 The effect is a cyber blacklist aimed at destroying the lives of activists.40 The site is used by Israeli and United States law enforcement officers to conduct investigations and interrogations.41 People who have been profiled on the site have experienced acute anxiety and depression, denied entry to Palestine, fired from jobs, interrogated by employers and law enforcement, received death threats and harassment, and even been deported.42 The methods of attack include derogatory comments on the person’s social media, creating hate-sites about the person, and even printing photos or warnings of the student to hang on their college or university campus.43 Canary Mission is only one in a long line of such defamatory sites, including Masada 2000, Campus Watch, Jihad Watch, and David Horowitz Freedom Center.44 Even though discrimination against Palestinians is underreported and often not tracked, it is very present in the United States.

Discrimination against anyone who supports the BDS movement is horrible, but it is nothing compared to the experience of actually being Palestinian in the United States. Being Palestinian in the United States entails navigating a web of existential contradictions. We are both inherently political and politically inconsequential. We watch students who denounce the maltreatment of Native Americans and Black Americans in the US accept free trips to Israel and participate in similar structures of settler-colonialism and ethnically-based brutality abroad. . . . “I wish I didn’t have to talk about the occupation every time I say that I’m Palestinian.”45

When asked about nationality, the answer “I’m Palestinian” comes with a required debate over the situation in Palestine and a reminder that the United States does not recognize Palestine as anything more than an “occupied territory” of Israel.46 Identifying as Palestinian in the United States (and often anywhere in the world) is a political act, even though it is an ethnicity or nationality like any other.47 Much of the population in the United States, including Minnesota, either thinks Palestine does not or should not exist.48

The discrimination against Palestinians in the United States, as well as supporters of Palestine, has continued to rise just like antisemitism has begun to rise. While there is no clear explanation, the correlation between the rise of alt-right political (white supremacist) groups and the rise of anti-Palestinian sentiment cannot be overlooked. In fact, it is likely that this rise of alt-right political groups in favor of “Christian” morals and preservation of white society are cause for the increase of Palestinian discrimination in the United States, in addition to the rise of antisemitism. The parallel tracks of the situation in Palestine, creation and rise of BDS, antisemitism in the United States, and discrimination toward Palestinians in America, all convene and cause the creation of a new type of legislation: anti-BDS bills.

III. Anti-BDS Bills

But for the areas discussed above, it is unlikely the anti-BDS laws would have come into being, for without the situation in Palestine, the current BDS movement would not exist. And without the rise of antisemitism and the rise of anti-Palestinian sentiment, there would be little justification or desire to create and pass bills to discriminate against Palestinians (and their supporters) under the guise of decreasing antisemitism. Before getting too far ahead, it is important to explain these anti-BDS bills.

Across the United States, 233 anti-BDS bills have been introduced into state and federal legislatures. So far, fifty-two have passed in thirty-two states and the federal government.49 While some were proposed or passed prior to the 2016 election, the number doubled from 2015 to 2017 and more continue to appear today.50 This section will first look at the two types of anti-BDS bills and what they do, then provide an explanation of the powers behind the creation and passage of these bills.

There are two types of bills included in the category of anti-BDS legislation: bills to deter boycotting with political motive; and bills to redefine antisemitism as including criticism of the state of Israel. Each will be discussed in turn.

a. Anti-Boycott Bills

At this point, the vast majority (forty-nine out of fifty-two) of the anti-BDS laws that have passed are considered anti-boycott legislation.51 Anti-boycott legislation uses economic and legal coercion to suppress boycotting.52 This legislation may be targeted and refer directly to Israel or any boycotts to support Palestinian rights, or the bill might use more general language that includes boycotts of any allied countries (referring to United States allies).53 The legislation usually includes boycotts of territories controlled by Israel (referring to the illegal Israeli settlements on the occupied land within the West Bank).54 Still, sometimes the language is even more broad and refers only to “discriminatory” boycotts.55 Whatever language is used to describe the prohibited boycotting, the bills have three iterations: to target state contracting, state investments, or funding resources.56

First are the bills that target state contracting. These bills are the most common and prohibit governments (state or local) from contracting with any person, organization, or company that supports boycotts for Palestinian rights.57 There are two ways this law is enforced, either by written certification or blacklist, and some states use both.58 The written certification is signed by the contractor, agreeing the person or entity will not and does not boycott goods and services produced in Israel.59 As an alternative, some states have created a blacklist of organizations that support BDS, simply prohibiting any contracts with named entities.60 For example, Indiana law requires there be an up-to-date list of businesses that “limit commercial relations with the Jewish state of Israel or businesses that are based in the Jewish state of Israel or territories controlled by the Jewish state of Israel.”61 This type of language to limit state contracting is the most common anti-boycott legislation and is the version Minnesota has in place.62 Minnesota’s law targets the BDS movement directly, stating any contract with vendors engaged in boycotts of Israel or territories occupied by Israel are prohibited.63

The second type of bill to prohibit boycotting targets state investments. These prohibit states from investing in entities that support boycotts of Israel.64 Typically, this most affects state pension funds, but it may include any state investment funds, including public retirement investments.65 This type of bill prohibits investment in any company named on the blacklist (as explained above).66

The final type of anti-boycott bill defunds state academic programs. These bills impose financial or social penalties on institutions (usually public universities or schools) that permit boycotting, even by committees or groups merely affiliated with the institution.67 The institutions are then publicly vilified for their participation in BDS and are placed on a state-wide “blacklist” and usually prohibited from receiving any state or federal funding.68 Currently, Maryland and New York are the only two states with this type of law.69

b. Bills to Redefine Antisemitism

The second type of legislation redefines antisemitism to include an overbroad definition.70 This new definition comes from the International Holocaust Remembrance Alliance (“IHRA”).71 The IHRA was created to strengthen world-wide support for remembrance of the Holocaust and combat future genocide; there are thirty-five member countries, including the United States.72 Although on its face this new definition for antisemitism provided by the IHRA does not encompass criticisms of the Israeli government or the state, it provides examples of antisemitism, which includes criticisms of Israel.73 The working definition of antisemitism provided by the IHRA and adopted by several states and the United States government is:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.74

IHRA’s explanation of this definition goes on to say that manifestations of antisemitism “might include the targeting of the state of Israel.”75 By including this explanation, the IHRA falsely conflates political criticism of Israel with antisemitism, and “discards as antisemitic all non-Zionist visions of the future of the Israeli state.”76 The state and federal governments that have adopted the IHRA’s definition also adopt the explanations. This legislation brands political speech and advocacy of Palestinian freedom as discriminatory or even criminal.77

While the bills prohibiting boycotts or changing the definition of antisemitism have a clear motive on their face, it is unclear why the bills exist at all because the effect if they become law is minimal. At the time Minnesota passed its anti-boycott law, there were no contracts that would be implicated by the law and since its passage, there have been no contractors refusing to comply with the agreement.78 There is no data to explain how many contractors have been affected by any anti-boycott legislation across the United States, but according to some sources, international boycotting of Israel, such as what the BDS movement has done, causes very little harm to the Israeli economy.79 The effect is approximately a 0.004% economic decline.80 Therefore, the actual purpose of these anti-BDS laws is unclear. Recall that one side effect of the BDS movement is an increase in discrimination against Palestinians and that the United States has an expensive and mutually beneficial relationship with Israel. It is reasonable to conclude that anti-BDS bills—prohibiting BDS or changing the definition of antisemitism—do not actually serve the purpose of preventing harm to Israel, but rather, serve the purpose of perpetuating discrimination against Palestinians in the United States.

IV. Why Anti-BDS Bills Do Not Work

While there are different types of bills and over thirty states have adopted them, the problems are the same. First, there is no evidence that the bills have stopped the rise of antisemitism. Second, the bills present large constitutional issues and states are being sued for violating citizens’ First Amendment rights.

Combating the rise of antisemitism is at least one reason, if not the primary reason, anti-BDS bills were introduced. However, these bills appear to have little to no effect on incidents of antisemitism because the source of antisemitism is not the BDS movement, but the alt-right. Silencing discrimination cannot be accomplished if the wrong group is being silenced; attacking the BDS movement for actions taken by white supremacists will not get rid of antisemitism if the BDS participants are not the ones committing the acts of antisemitism. The Anti-Defamation League compiles data on antisemitic incidents across the country and their records show that antisemitism has continued to rise, despite these bills.81 Across the country, between 2017–2018, there were at least 3,865 incidents of hate, extremism, antisemitism, and terrorism directed toward Jews in the United States.82 Specifically, 56 incidents happened in Minnesota.Id.83 From 2019–2020, the number rose to at least 4,131 incidents in the United States, and 60 in Minnesota.84 ADL’s records demonstrate the continued rise of antisemitism and indicate the source: most incidents are labeled as a “white supremacist event.”85 Given this data, it is clear the misrepresentations of the BDS movement as contributing to or causing the rise in antisemitism is nothing more than myth, with no factual basis.

The second problem with anti-BDS laws, primarily those prohibiting boycotts, is that they violate a person’s constitutional freedom. While some bills include language or research histories, which specifically say they do not violate state or federal constitutions, this is not enough to avoid a lawsuit claiming constitutional violations.86 Claiming they pass constitutional review does not change the fact that the anti-boycott legislation hinders a person’s use of free speech and political expression, which violates the First Amendment.87 The United States Supreme Court has upheld the right to boycott, even with the purpose of putting economic pressure on an entity, as an appropriate form of political expression.88 This was the decision in the landmark case of NAACP v. Claiborne Hardware Co..89 As to the anti-BDS laws specifically, legal scholars have examined the laws at issue and determined that it is highly likely any judge would declare the law unconstitutional if the matter were brought before them.90 For example, the Minnesota bill would violate Article 1, Sections 3 and 16, of the Minnesota Constitution (in addition to the United States Constitution) because boycotting to achieve a political goal is a form of expression protected by the First Amendment, according to the American Civil Liberties Union.91 Therefore, laws that prohibit boycotting, including a boycott of Israel, go against United States Supreme Court precedent as well as state and federal constitutions.

Some courts have already reviewed these anti-boycott bills. Two cases have gone up to the federal circuit courts, but before they could be adjudicated the states modified their anti-boycott laws and forced the appellate courts to dismiss the cases as moot.92 Still, more cases are filed each year against the bills so it is likely that one day an appellate court will get the chance to review the bills once and for all. Most recently, on October 29, 2021, A&R Engineering and Testing Inc. filed a lawsuit in federal district court against Texas “arguing that Texas’s anti-boycott law is a violation of its free speech right guaranteed” under the First Amendment.93 This will be the second time Texas district courts have heard this claim about their anti-boycott law, the first being Amawi v. Pflugerville Independent School District in 2019.94 Given the expense of litigation, it is wise for states to strike down their laws prohibiting boycotts before a court is forced to adjudicate the matter.

The anti-BDS laws have had no positive affect on antisemitism and in fact will cause more trouble by forcing litigation against the states. Antisemitism continues to rise despite bills being passed to target BDS or redefine antisemitism, and any of these anti-boycott bills are rife with constitutional violations. The better route for states to follow if they truly want to end the rise of antisemitism is to face the rise of alt-right groups head on, not by introducing or passing more unconstitutional anti-BDS laws.

V. Conclusion

Many bills have been proposed to remove the anti-BDS laws currently in force. In Minnesota, a bill to repeal the current law has been introduced every year since the anti-boycott bill was passed in 2017. Almost every state with an active anti-BDS law has a proposal to repeal the law, but these bills are being defeated by the continued myth that by discouraging the BDS movement, incidents of antisemitism will go down and state economies will be protected. But there is no data to support either of these justifications. It is important that the proper information is disseminated to legislators and constituents. With persistence and resilience these unconstitutional and harmful laws will be repealed.

Footnotes

  1. Israel is one of just seventeen Major Non-NATO Allies. See 22 U.S.C. § 2321k(b). According to the U.S. Department of State, “The Major Non-NATO Ally designation is a powerful symbol of the close relationship the United States shares with those countries and demonstrates our deep respect for the friendship for the countries to which it is extended.” Major Non-NATO Ally Status, U.S. Dep’t of State, https://www.state.gov/major-non-nato-ally-status/ [https://perma.cc/P2XG-2SVJ]. ↩︎
  2. According to the International Holocaust Remembrance Alliance, the term “antisemitism” is spelled as such to prevent the legitimization of a pseudo-scientific racial classification and acknowledges the proper meaning of the term, which is a word to identify opposition and hatred toward Jews. Spelling of Antisemitism, Int’l Holocaust Remembrance All., https://www.holocaustremembrance.com/antisemitism/spelling-antisemitism [https://perma.cc/95RD-Q64D]. ↩︎
  3. To be considered an occupied territory under law means that the hostile nation (in this case, Israel) has taken effective control over the territory (here, Palestine), regardless of physical attacks. Once that happens, the hostile government’s actions within that territory are subject to international law. Occupation and International Humanitarian Law: Questions and Answers, Int’l Comm. Red Cross (Apr. 8, 2004), https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm [https://perma.cc/BJS4-749M]. Further discussion of this issue is beyond the scope of this Article. ↩︎
  4. Creation of Israel, 1948, U.S. Dep’t of State, https://history.state.gov/milestones/1945-1952/creation-israel [https://perma.cc/RPT7-PMHT]. ↩︎
  5. Jeremy M. Sharp, Cong. Rsch. Serv., RL33222, U.S. Foreign Aid to Israel 2 (2022). This report provides a comprehensive review of past programs, analysis of current programs, and data on annual assistance provided by the United States to Israel. A full review or discussion is beyond the scope of this Article. Id. ↩︎
  6. Jake Horton, Israel-Gaza: How Much Money Does Israel Get From the US?, BBC (May 24, 2021), https://www.bbc.com/news/57170576 [https://perma.cc/G6FV-WE5P]. ↩︎
  7. Stephen Zunes, Why the U.S. Supports Israel, Inst. Pol’y Stud. (May 1, 2002), https://ips-dc.org/why_the_us_supports_israel/ [https://perma.cc/2ERA-QGUM]. ↩︎
  8. See Usaid Siddiqui, Mohammed Hussein, Owais Zaheer & Mohammed Haddad, Infographic: What You Need to Know About Israel’s Military, Al Jazeera (June 4, 2021), https://www.aljazeera.com/news/2021/6/4/infographic-what-you-need-to-know-about-israels-military [https://perma.cc/B48E-A46Z]; Matt Kennard, The Cruel Experiments of Israel’s Arms Industry, Pulitzer Ctr. (Dec. 28, 2016), https://pulitzercenter.org/stories/cruel-experiments-israels-arms-industry [https://perma.cc/8RNJ-YBUR]. ↩︎
  9. A full review or explanation of these human rights violations against Palestinians and supported by the United States is beyond the scope of this Article. However, for more information, see Press Release, The Question of Palestine, Israel’s Exploitation of Palestinian Resources is Human Rights Violation, Says UN Special Rapporteur for the Situation of Human Rights in the OPT, U.N. Press Release (Mar. 18, 2019), https://www.un.org/unispal/document/israels-exploitation-of-palestinian-resources-is-human-rights-violation-says-un-special-rapporteur-for-the-situation-of-human-rights-in-the-opt-press-release/ [https://perma.cc/B33M-RT9M]; Occupied Palestinian Territory, U.N. Off. Coordination Humanitarian Affs., https://www.ochaopt.org/ [https://perma.cc/K63Q-6V3N]; A Regime of Jewish Supremacy from the Jordan River to the Mediterranean Sea: This is Apartheid, Israeli Info. Ctr. Hum. Rts. Occupied Territories (Jan. 12, 2021), https://www.btselem.org/publications/fulltext/202101_this_is_apartheid [https://perma.cc/QT8V-TTTC]. ↩︎
  10. What is BDS?, BDS, https://bdsmovement.net/what-is-bds [https://perma.cc/6RPT-5NVG]. ↩︎
  11. Id. ↩︎
  12. A full account of the discriminatory acts, in addition to the human rights abuses, conducted by Israel and against Palestinians is beyond the scope of this Article. However, to learn more about the discriminatory laws in place within the state of Israel, see Five Ways Israeli Law Discriminates Against Palestinians, Al Jazeera (July 19, 2018), https://www.aljazeera.com/news/2018/7/19/five-ways-israeli-law-discriminates-against-palestinians [https://perma.cc/GS28-MR8L] (stating there are more than sixty-five discriminatory laws on the books in Israel and highlighting the most oppressive five). ↩︎
  13. What is BDS?, supra note 10. ↩︎
  14. Id. ↩︎
  15. Id. ↩︎
  16. Rebecca Miles, The Struggle of Palestinians is the Struggle of Native Americans, Mondoweiss (May 1, 2018), https://mondoweiss.net/2018/05/struggle-palestinians-americans/ [https://perma.cc/7369-2L9P]. ↩︎
  17. See Ruairi Casey, What’s Behind Ireland’s Support for Palestine?, Al Jazeera (June 7, 2021), https://www.aljazeera.com/news/2021/6/7/whats-behind-irelands-support-for-palestine [https://perma.cc/SWB2-DUEB]. ↩︎
  18. Pavan Kulkarni, South African Dockworkers to Boycott Israeli Ships Until Total Liberation of Palestinian People: Union, Peoples Dispatch (May 24, 2021), https://peoplesdispatch.org/2021/05/24/south-african-dockworkers-to-boycott-israeli-ships-until-total-liberation-of-palestinian-people-union/ [https://perma.cc/U5L8-6QYE]. ↩︎
  19. Karma R. Chavez, From the Mexico-U.S. Borderlands to Palestine, 5 J. Civ. & Hum. Rts. 1, 2 (2019). ↩︎
  20. Id. ↩︎
  21. JVP Supports the BDS Movement, Jewish Voice for Peace, https://jewishvoiceforpeace.org/jvp-supports-the-bds-movement/ [https://perma.cc/QT5F-55SX]. ↩︎
  22. Cirien Saadeh, MN House Moves to Silence Dissent Against Israel for Human Rights Abuses, Uptake (Feb. 26, 2017), https://theuptake.org/2017/02/26/mn-house-moves-to-silence-dissent-against-israel-for-human-rights-abuses/ [https://perma.cc/A6DH-867V]. ↩︎
  23. Jewish Americans in 2020: 7. U.S. Jews’ Connections with and Attitudes Toward Israel, Pew Rsch. Ctr. (May 11, 2021), https://www.pewforum.org/2021/05/11/u-s-jews-connections-with-and-attitudes-toward-israel/ [https://perma.cc/HCN8-FFK3]. ↩︎
  24. Michael Edison Hayden, Anti-Semitism Rising in ‘Alt-Right’ Era, New Study Shows, Newsweek (Nov. 2, 2017, 10:00 AM), https://www.newsweek.com/anti-semitism-rising-alt-right-era-study-699218 [https://perma.cc/2M8A-M8VN]. ↩︎
  25. Antisemitism in the US, Anti-Defamation League, https://www.adl.org/what-we-do/anti-semitism/antisemitism-in-the-us [https://perma.cc/EE89-LYE6]. ↩︎
  26. ADL H.E.A.T. Map, Anti-Defamation League, https://www.adl.org/education-and-resources/resource-knowledge-base/adl-heat-map [https://perma.cc/THU8-NHSD]. ↩︎
  27. Hayden, supra note 24. ↩︎
  28. Alt Right: A Primer on the New White Supremacy, Anti-Defamation League, https://www.adl.org/resources/backgrounders/alt-right-a-primer-on-the-new-white-supremacy [https://perma.cc/L5FG-LEFL]. ↩︎
  29. See id. ↩︎
  30. See Steve Benen, Donald Trump Riles 2016 Race with Anti-Semitic Imagery, MSNBC (July 5, 2016, 6:34 AM CDT), https://www.msnbc.com/rachel-maddow-show/donald-trump-riles-2016-race-anti-semitic-imagery-msna872741 [https://perma.cc/ZKA7-6FSJ]. ↩︎
  31. Jake Flanagin, Report: The Link Between the Election of Donald Trump and Resurgent Anti-Semitism Is Now Undeniable, Quartz (Apr. 27, 2017), https://qz.com/969170/report-the-link-between-the-election-of-donald-trump-and-resurgent-anti-semitism-is-now-undeniable/ [https://perma.cc/SJD5-P28P]. ↩︎
  32. Id. The continued rise of antisemitism and the alt-right throughout the presidency of Donald Trump allows one to make a clear inference that the two are correlated. They were connected on the campaign and continued through the election and first year in office, and the number of incidents only grew from there. ↩︎
  33. Bess Levin, Trump Reportedly Called White Supremisits “My People,” in Case it Wasn’t Clear He’s an Abject Racist, Vanity Fair(Sept. 16, 2021), https://www.vanityfair.com/news/2021/09/donald-trump-white-supremacists-my-people [https://perma.cc/29K4-LVT3]. ↩︎
  34. While this author believes this assertion is true, it is beyond the scope of this Article to fully address or prove this thesis. ↩︎
  35. ADC Demands Congress Investigate Surge in Discrimination Against Pro-Palestinian Voices, Am.-Arab Anti-Discrimination Comm. (June 17, 2021), https://www.adc.org/adc-demands-congress-investigate-surge-in-discrimination-against-pro-palestinian-voices/ [https://perma.cc/6VLK-SWH6]. ↩︎
  36. Id. ↩︎
  37. See California Judge Rules Against Attempts to Silence Palestinian Activist, Am.-Arab Anti-Discrimination Comm. (Mar. 3, 2021), https://www.adc.org/breaking-california-judge-rules-against-attempts-to-silence-palestinian-activist-a/ [https://perma.cc/2DCX-CLF5]. While the defendant’s identity as Palestinian was not the center of the claim, the claim would not have been brought were it not for thedefendant being Palestinian. The “free speech” targeted in this case was the defendant’s inherent existence as a Palestinian expressing their citizenship. ↩︎
  38. Canary Mission, https://canarymission.org [https://perma.cc/27PF-RAHQ]. ↩︎
  39. What is Canary Mission?, Against Canary Mission, https://againstcanarymission.org/what-is-canary-mission/ [https://perma.cc/9A5S-LHEB]. ↩︎
  40. Id. ↩︎
  41. Alex Kane, “It’s Killing the Student Movement”: Canary Mission’s Blacklist of Pro-Palestine Activists is Taking a Toll, Intercept (Nov. 22, 2018, 8:00 AM), https://theintercept.com/2018/11/22/israel-boycott-canary-mission-blacklist/ [https://perma.cc/LM5Z-8RRT]. ↩︎
  42. Id. ↩︎
  43. Id. ↩︎
  44. Committee on Academic Freedom, Exposing Canary Mission: A Resource for College and University Leaders, Middle E. Stud. Ass’n N. Am. (Apr. 18, 2018), https://mesana.org/advocacy/committee-on-academic-freedom/2018/04/18/exposing-canary-mission [https://perma.cc/NS8X-49CN]. ↩︎
  45. Tala Alfoqaha, Growing Up Palestinian in the United States, Wake (Mar. 2, 2020), https://www.wakemag.org/features/2020/3/2/growing-up-palestinian-in-the-united-states [https://perma.cc/ZT4F-EAPA]. ↩︎
  46. See id. ↩︎
  47. Liv Martin, Meet Lamia Abukhadra, an Artist Exploring Her Palestinian Heritage, Minn. Daily (Oct. 25, 2018), https://mndaily.com/230427/arts-entertainment/aelamia/ [https://perma.cc/2PLF-PGDY]. ↩︎
  48. Id. ↩︎
  49. Legislation, Palestine Legal, https://legislation.palestinelegal.org/ [https://perma.cc/BUK9-GZG3]. ↩︎
  50. Id. ↩︎
  51. Id. ↩︎
  52. Types of Legislation, Palestine Legal, https://legislation.palestinelegal.org/types-of-legislation/ [https://perma.cc/RX6L-SUGJ]. ↩︎
  53. Id. ↩︎
  54. Id. ↩︎
  55. Id ↩︎
  56. Id. ↩︎
  57. See Legislation, supra note 49. ↩︎
  58. Types of Legislation, supra note 52. ↩︎
  59. Id. ↩︎
  60. Id. ↩︎
  61. Ind. Code § 5-10.2-11-3 (2021). ↩︎
  62. Minn. Stat. § 16C.053 (2021). ↩︎
  63. Id. ↩︎
  64. Types of Legislation, supra note 52. ↩︎
  65. Id. ↩︎
  66. Id. ↩︎
  67. Types of Legislation, supra note 52. ↩︎
  68. Id. ↩︎
  69. Legislation, supra note 49. Maryland’s law has been in effect since 2014 and in 2021 bills were proposed to heighten the sanctions for institutions that support the BDS movement. Maryland, Palestine Legal, https://legislation.palestinelegal.org/location/maryland/ [https://perma.cc/HGF2-23WQ]. New York has an executive order that condemns academic institutions that boycott, and the legislature continues to propose bills that target colleges and universities in the state. New York, Palestine Legal, https://legislation.palestinelegal.org/location/new-york/ [https://perma.cc/64NB-8LDT]. The executive order was enacted in 2016 and remains in effect, creating a blacklist of institutions (including academic) and prohibits state investments in any of these institutions. Id. ↩︎
  70. Types of Legislation, supra note 52. ↩︎
  71. Id. ↩︎
  72. Int’l Holocaust Remembrance All., https://www.holocaustremembrance.com/world-remembers-holocaust [https://perma.cc/A4PC-7RVV] (last visited Nov. 29, 2021). ↩︎
  73. Types of Legislation, supra note 52. ↩︎
  74. What Is Antisemitism?, Int’l Holocaust Remembrance All., https://www.holocaustremembrance.com/resources/working-definitions-charters/working-definition-antisemitism [https://perma.cc/294W-WPCT]. ↩︎
  75. Id ↩︎
  76. Palestinian Rights and the IHRA Definition of Antisemitism, Guardian (Nov. 29, 2020, 1:05 PM), https://www.theguardian.com/news/2020/nov/29/palestinian-rights-and-the-ihra-definition-of-antisemitism [https://perma.cc/3UBV-8W53]. ↩︎
  77. Types of Legislation, supra note 52. ↩︎
  78. Saadeh, supra note 22. ↩︎
  79. See Adam Reuter, Unpacking the Actual Impact of BDS on Israel’s Economy, Jerusalem Post (Oct. 10, 2018), https://www.jpost.com/opinion/unpacking-the-actual-impact-of-bds-on-israels-economy-569049 [https://perma.cc/V32Q-EPX3]. ↩︎
  80. Id. ↩︎
  81. ADL H.E.A.T. Map, supra note 26. ↩︎
  82. Id. ↩︎
  83. Id. ↩︎
  84. Id. ↩︎
  85. Id. ↩︎
  86. See House Research, H.F. 400, 90th Leg. (Minn. 2017), https://www.house.leg.state.mn.us/hrd/bs/90/HF0400.pdf [https://perma.cc/YWQ9-7JAS]. ↩︎
  87. US: States Use Anti-Boycott Laws to Punish Responsible Businesses, Hum. Rts. Watch (Apr. 23, 2019), https://www.hrw.org/news/2019/04/23/us-states-use-anti-boycott-laws-punish-responsible-businesses [https://perma.cc/JAB2-ULY9]. ↩︎
  88. Dara E. Purvis, Boycotts, Free Speech Ctr. (2009), https://www.mtsu.edu/first-amendment/article/987/boycotts [https://perma.cc/YS3M-7RU5]. ↩︎
  89. 458 U.S. 886 (1982). ↩︎
  90. E.g., Noah Feldman, Is the Anti-Boycott Bill Constitutional? Yes, But…, Minn. Law. (Feb. 7, 2019), https://minnlawyer.com/2019/02/07/is-the-anti-boycott-bill-constitutional-yes-but/ [https://perma.cc/K97F-3RR2]. ↩︎
  91. Businesses Have the Right to Protest and Boycott Israel, Am. Civ. Liberties Union: Minn. (Feb. 15, 2017), https://www.aclu-mn.org/en/news/businesses-have-right-protest-and-boycott-israel [https://perma.cc/L2RZ-X8A6] (referencing the U.S. Supreme Court’s decision in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932–33 (1982) and O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996)). ↩︎
  92. See Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 717 (W.D. Tex. 2019), vacated as moot by Amawi v. Paxton, 956 F.3d 816, 816 (5th Cir. 2020); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1016 (D. Ariz. 2018), vacated as moot by Jordahl v. Brnovich, 789 Fed. Appx. 589, 589 (9th Cir. 2020). ↩︎
  93. Houston Contractor Sues Texas Over State Ban of Israel Boycott, Al Jazeera (Nov. 2, 2021), https://www.aljazeera.com/economy/2021/11/2/houston-contractor-sues-in-texas-over-state-ban-of-israel-boycott [https://perma.cc/9HFF-N4MB]. ↩︎
  94. 373 F. Supp. 3d at 717. ↩︎