Anti-BDS Bill Is Harmonious with First Amendment

The idea that governments can and should divest from companies that engage in behavior that is morally repugnant or that is otherwise determined to be contrary to the public interest is not controversial. Here in Maryland, this concept formed the basis for laws that in the 1980s divested the state from companies doing business in South Africa, and that more recently divested the state from companies operating in Sudan and Iran.

Despite this well-established history of divestment, a “boycott bill controversy” is now brewing over the anti-BDS bill being considered by the Maryland General Assembly. The legislation will require the state pension fund to divest from companies participating in the international movement to boycott, divest from, and sanction the State of Israel, and bar such companies from obtaining state contracts.

What makes the controversy striking is the focus of the opposition. For the most part, opponents do not argue that the BDS movement’s economic attack on Israel is a just and noble cause. Instead, critics of the bill claim that it should be rejected because it is an attempt to stymie political dissent that violates the First Amendment of the Constitution.

The First Amendment argument is striking. If the proposed anti-BDS law illegally and improperly deprives companies of public benefits based upon their political viewpoint, the same criticism should have been raised to discredit the disinvestment campaign against South Africa. The fact that individuals and organizations who supported the disinvestment campaign against South Africa now claim that the proposed anti-BDS law violates the First Amendment is intellectually dishonest and reflects the double-standard that is all too often applied to Israel by its critics.

In point of fact, neither the prior laws targeting South Africa nor Maryland’s pending anti-BDS law implicate or violate the First Amendment. As noted by Eugene Kontorovich of the Northwestern University School of Law, while it would be unlawful for a state to try to ban the BDS movement or to make the movement liable for damages for boycotts they endorse, “that does not mean that a company’s categorical decision to not do business with certain other businesses for political, rather than business reasons, cannot be taken account of by the state when choosing whether to contract or invest with it.”

To date, 13 states have passed bills combating the BDS movement. This legislative session, it is proper for the General Assembly to add Maryland’s name to list, and passing the proposed anti-BDS bill.

Jay Bernstein is a Baltimore Zionist District board member.


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