To the shock of many Europeans, Americans are free to voice support for terrorism, direct racist and xenophobic insults at particular groups, and deny the Holocaust without fear of running afoul of the law.

This is due to America’s uniquely strong free speech tradition under the First Amendment, which holds that the government may not punish or suppress speech based on disapproval of the ideas or perspectives conveyed. Hence, viewpoint-based restrictions on speech, including the type of hate speech laws that are commonplace in Europe, are presumptively unconstitutional in the United States.  However, at present, Europe is protecting a certain type of expression to a much greater degree than the United States.  This role-reversal warrants our collective attention for what it suggests about the potential erosion of free speech protection in the United States, in particular, the protection of unpopular political speech.  The type of expression that the United States government is endeavouring to silence relates to criticism of Israel in the form of support for the Boycott, Divestment, Sanctions Movement (“BDS Movement”).

What is the BDS Movement and why is it drawing the ire of so many American politicians, including President Trump

The Movement calls on civil society organizations and individuals to use boycotts and divestment initiatives against Israel with the objective of exerting non-violent pressure on the Israeli government to comply with international law and end the occupation of Palestine.  In the United States, where support for Israeli policies and its Prime Minister, Benjamin Netanyahu, far exceeds that of other liberal democracies, legitimate criticism of Israel’s treatment of Palestinians is often improperly conflated with Anti-Semitism.  While criticism of Israel and anti-Semitism are not mutually exclusive, neither are they inextricably linked.  However, the contemporary discourse in the United States is so plagued by reductivism and hyperbole that any distinction between legitimate criticism and anti-Semitism is becoming increasingly blurred.  At the same time, government efforts to stifle legitimate criticism of Israel’s policies under the guise of combatting anti-Semitism are becoming increasingly popular at the state and federal levels.  Such efforts constitute a clear and serious threat to the protection of political speech in the United States.

The recent proliferation of anti-BDS measures at the state and federal levels in the United States

This piece does not take a position on debates concerning the BDS Movement or the Israel-Palestine conflict more broadly.  Rather, the focus here is on the free speech implications of the American government’s efforts to stifle criticism of Israel’s treatment of Palestinians and the violations of international law committed by the Israeli government as determined by the United Nations, the International Court of Justice, and others.  These efforts take the form of proposed anti-BDS legislation in the United States Congress and the passage of anti-BDS laws at the state level.

At present, twenty-seven states have adopted laws or policies that penalise businesses, organizations, or individuals that engage in or call for boycotts against Israel and/or Israeli settlements.  Often, such laws require state contractors, including teachers, lawyers, and newspapers, to officially certify that they are not participating in boycotts of Israel or companies that do business in Israel.  The American Civil Liberties Union has brought legal challenges to such laws, correctly arguing that they discriminate against disfavoured political expression in violation of the First Amendment.  They also fly in the face of the firmly entrenched principle that participating in politically motivated boycotts is constitutionally protected speech.

While federal courts in Texas, Arizona, and Kansas have recently blocked anti-BDS laws on First Amendment grounds, the most recent iteration of federal legislation was introduced in January of 2020.  According to the 2020 Bill’s sponsor, Americans ‘have witnessed the rise of anti-Semitism and anti-Israel hate throughout the world, in our nation, on college campuses and within the halls of Congress under the guise of the BDS movement, and whether this bigotry is brazen or it’s blatant anti-Semitism deceptively called “legitimate” we must crush it wherever it exists’.

Even if one agrees with this caustic rhetoric, supporters of such measures cannot escape the fact that government proscriptions that expressly target speech based on the views expressed, regardless of how those views are characterised, constitute flagrant violations of the First Amendment.  Indeed, while the United States Supreme Court acknowledges that political speech is powerful, with the ability to stir people to action and move them to tears of joy as well as sorrow, it firmly rejects the proposition that the government may react to such speech in a way that punishes the speaker for the message conveyed.  Instead, speech on public issues is protected so as to ensure that the government does not stifle public debate.  There is no exception to this general principle for speech critical of Israel that the government finds offensive.

The United States should follow the EU’s lead in protecting this form of expression

In an interesting role reversal, the EU, notwithstanding recent pressure from the United States, is holding firm in its position that BDS actions are a form of protected speech under the Charter of Fundamental Rights.  Additionally, the vice-chair of the European parliament’s delegation for relations with Palestine stated in 2016 that, while she did not support the BDS movement, ‘[t]here is an evident wish to silence BDS advocates in order to protect the illegal policies of annexation and dispossession of the Netanyahu government.  Criminalising and repressing the legitimate expression of free speech cannot be accepted in our societies.’  Thus, while the United States is rightly regarded as an outlier in providing expansive protections to unpopular expression, in the context of BDS-related activities, it lags well behind Europe.  The American government’s blatant disregard for firmly entrenched and longstanding free speech principles, and the pressure it is attempting to exert on Europe in this area, should alarm human rights defenders both in the United States and abroad.

Eliza Bechtold, Durham University Law School