Are state boycotts of the anti-Israel BDS movement constitutional?

New Jersey lawmakers are expected to join other states in prohibiting the state from investing in companies that are part of the 'boycott, divestment, and sanctions' movement against Israel.

Amr Nabil/AP
An Egyptian wears a T-shirt with the Boycott, Divestment, and Sanctions (BDS) logo in 2015. The state of New Jersey is expected to pass legislation Monday, which would boycott companies that support BDS.

The New Jersey state legislature is expected to pass legislation on Monday that will prevent the state from investing in companies that participate in the "boycott, divestment, and sanctions" movement against Israel, joining a growing number of states that already have similar regulations in place. 

Supporters say the bill will strengthen the state's relationship with Israel, while opponents of the bill say it – and similar legislation in other states – is unconstitutional and amounts to a restriction on free speech and the right to "peaceful political activity." 

The Boycott, Divestment, and Sanctions (BDS) movement was established by Palestinian civil society in 2005 and encourages a boycott of Israeli companies, divestments from organizations that support Israel and encouraging sanctions against Israel. The movement has seen support in Europe and in the United States, especially on college campuses, as The Christian Science Monitor reported last year. 

State lawmakers who are pushing for the bill say it will send a strong message to those who oppose Israel. 

"With the power of our pension funds, we're sending a statement that we will not stand for any global attempts to delegitimize our partner in democracy and freedom," Democratic assemblywoman Valerie Huttle said in a statement

The bill would stop investments from the state's $71-billion pension fund to organizations that support BDS, the Philly Inquirer reports. 

The move follows similar moves by other states, as the Monitor has previously reported. In May, Gov. Andrew Cuomo (D) of New York issued an executive order that required all state agencies to divest their investments from companies and institutions that support the BDS movement. 

Indiana and South Carolina were the first two states to pass anti-BDS legislation, as The New York Times reported, and at least five other states have followed, according to Palestine Legal, an organization that seeks to protect "the civil and constitutional rights of people in the US who speak out for Palestinian freedom." Legislation is pending in other states. 

Opponents of the bills say they are unconstitutional. The American Civil Liberties Union said in a statement that the New Jersey bill would raise "serious constitutional problems by harming free speech and using government resources to build political blacklists."

"This bill singles people out for punishment based on their political opinions and beliefs, and that raises significant First Amendment concerns," said Udi Ofer, the executive director of the ACLU of New Jersey. "New Jersey should stay out of the business of building political blacklists and punishing unpopular opinions, regardless of what the controversy of the day may be."

Civil rights lawyer Yolanda Rondon wrote for the Huffington Post that the legislation goes against the 1982 US Supreme Court's ruling in NAACP v. Claiborne Hardware, which rules the states have no right to prohibit peaceful political activity. 

"This bill clearly targets freedom of speech by imposing financial penalty for engaging in a non-violent political boycott, and demonstrates an attempt to censor speech," she wrote. "When the government begins to police thoughts, ideas, and beliefs, we get into dangerous territory."

Lawmakers, however, maintain that the legislation is necessary to protect an ally of New Jersey, Democratic assemblyman Raj Mukherji said in a statement. 

"The BDS movement has sought to vilify our multibillion dollar trade partner and fellow champion of democracy as some sort of Apartheid regime." Assemblyman Mukherji said. "I will not allow our sizable pension fund to reward anti-Semitic and anti-peace sentiment with its investments. Companies that try to take punitive measures against Israel will face the same treatment tenfold." 

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