Both the BDS movement and the anti-BDS campaign have proven to be “successful” in very different ways. Their conceptualization and political actualization define “success” differently and thus, their respective methodologies, strategies, and institutional models serve as a portrait of two competing but very different movements with high stakes in a polarized political world.

This research examines these opposing and competing efforts. The BDS movement will be examined through the theoretical lens of propaganda movements and propaganda-war theory. It will be argued that the BDS movement is a contemporary propaganda movement that utilizes the traditional tools of previous and successful totalitarian propaganda wars in an effort to fundamentally challenge an existing global conversation and paradigm by slowly replacing it with a dangerous alternative that seeks the elimination of Israel.¹ Their objective cannot be realized without simultaneously targeting “the Jews” per se. Thus this research regards the BDS movement as an anti-Semitic effort and not as one that is merely anti-Israeli or anti-Zionist.²

Next this research examines the anti-BDS political campaign in the context of American politics. It surveys the role of anti-BDS/pro-Israeli activists mobilizing for legislative initiatives at the federal, state, local, and municipal levels. Particular attention will be paid to their building successful coalitions as well as bipartisan support, and to the role of governors and state legislatures in getting anti-BDS legislation passed. In all cases the resulting legislation aims at combating anti-Semitism in America, combating anti-Americanism on the left and the right of the political spectrum, as well as sustaining the well-being and legitimacy of Israel, a strong ally of the United States.

THE BDS MOVEMENT AND PROPAGANDA WARFARE

The BDS movement is generally viewed as a loose grouping of actors from various countries who advocate or engage in economic, political, and legal measures against Israel or Israel-related individuals or organizations. Although supporters generally express strong support for the Palestinian cause, the leadership of BDS makes it clear that they reject all suggestions of a two-state solution, they reject all forms of negotiations or compromise on their specific end goal—the dismantling of the state of Israel, nor do they expect their mobilization to affect Israeli policies.³

In July 2005 various Palestinian groups issued a “Call for BDS.”⁴ These groups compared their grievances against Israel to the struggle of South Africa against apartheid and sought international support against Israel. The “Call” asked all “people of conscience” to “impose broad boycotts and implement divestment initiatives against Israel similar to those imposed on South Africa in the apartheid era as well as pressure their states to impose embargoes and sanctions against Israel.” From its inception the Boycott, Divestment, and Sanctions (BDS) movement stated that it would not deliver tangible resources to the Palestinians but instead would create a political and economic environment that would promote the “liberation” of Palestine as defined in the “Call.”⁵

In order to successfully create this sympathetic global political, social, and economic environment for a new Palestinian state, the BDS movement developed a carefully crafted propaganda war against Israel, America, Zionism, Zionists, Jews, and the West. Its primary ammunition is language, rhetoric, and polemics all aimed at undermining and eventually annihilating any and all positive views of Israel resulting in an eventual global consensus calling for the termination of Israel and Zionism.⁶ Its targets are not limited to Israel, Israelis, Israel supporters, and America, which BDS views as a proxy for Israeli imperialism; they also include all of world Jewry. BDS acknowledges that this end goal will take many years to achieve; thus its short-term goal is to succeed in incrementally implanting anti-Israeli, anti-Semitic, anti-Zionist, and anti-American perceptions in the political, cultural, and economic realms of power in the hope of steadily moving toward isolating Israel as a pariah nation earning the contempt and hatred of the world.

There is nothing new in the content of BDS’s ideological polemical warfare. The precursors and earlier iterations of what would become the key messages of the BDS propaganda warfare were already to be found in The Protocols of the Elders of Zion (1905), Nazism, Leninism, Stalinism, Arab nationalism, varieties of Islamism, Soviet post-1967 anti-Zionist/anti-Israeli propaganda, Marxism, United Nations General Assembly resolutions in the 1970s as well as the 1975 World Conference on Women in Mexico City, and of course the 2001 Durban Conference.⁷ Works by Professors Herf, Hirsh, Fishman, Sternberg, Possony, and Heller and Nekrich offer excellent analyses of these earlier movements and ideologies with regard to the critical use of language as a tool of war.⁸ They agree that Lenin explained his use of language as a weapon in these terms: “The wording that is to reach the masses is calculated to provoke hatred, distrust, and contempt. The phrasing must be calculated not to convince but to destroy, not to correct the adversary’s mistake, but to annihilate his organization and wipe it off the face of the earth.”⁹

Stalin was a keen devotee of using language as a tool of social control. “Under Stalin, Soviet science devoted great attention to language conditioning…Stalin argued that it was essential for words to always act as signals that touch off responses appropriate with their meanings as defined by the government.” Stalin favored a link between semantics and politics resulting in a monopoly on the definition of words. This helps clarify the motives underlying Soviet anti-Zionist terminology and its impact on the international political stage.¹⁰

According to Possony and Heller and Nekrich, after the 1967 Six-Day War in which the Soviet Union along with its Arab allies were badly defeated by Israel, the Soviets embarked on a massive anti-Zionist campaign in which traditional anti-Semitic tropes aimed at Jews as individuals shifted toward and were replaced by a hate-filled campaign against Israel as a state and Zionism as its illegitimate ideology. With Zionism defined as dedicated to genocide, racism, treachery, imperialism, and aggression, both Zionism and Israel were depicted as a serious threat to the Soviet state in films, newspapers, periodicals, and textbooks. These polemical terms are among the key terms used by the BDS movement from its inception through the present.¹¹

Bernard Lewis observed that the exact same language used by the Soviets was also used in the 1975 “Declaration of the Equality of Women,” issued at the World Conference on Women in Mexico City. It stated that women were in a struggle against neocolonialism, foreign occupation, Zionism, racism, racial discrimination, and apartheid. Furthermore, on November 10, 1975, the United Nations General Assembly adopted Resolution 3379, orchestrated by the Soviets and their Arab allies, which declared that “Zionism is a form of racism and racial discrimination.” Historians agree that UNGA Resolution 3379 turned the perception of Zionism as equal to racism from a mere slogan to an established truth. By 2001 the Zionism-racism equivalency was further concretized at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, which also resolved that anti-Semitism and anti-Zionism did not constitute human rights issues.¹²

The ideology and political language of Hamas had a clear impact on the BDS playbook. Hamas ideology contains every anti-Semitic canard and stereotype of Jews based on The Protocols of the Elders of Zion, which is recirculated by the BDS movement. On August 18, 1988, Hamas issued the Covenant of the Islamic Resistance Movement, which historians and Middle East experts regard as a comprehensive manifesto of their goal to destroy Israel. Among its 36 articles, two are particularly pertinent to the BDS ideology and polemics. Article 22 states:

Jews have been scheming for a long time…and have accumulated huge and influential material wealth. With their money they took control of the world media…. With their money they stirred revolutions in various parts of the globe…. They stood behind the French Revolution, the Communist Revolution, and most of the revolutions we hear about…. With their money they formed the secret organizations such as the freemasons, Rotary Clubs, and the Lions—which are spreading around the world in order to destroy societies and carry out Zionist interests…. They stood behind WWI and formed the League of Nations through which they could rule the world…. They were behind WWII, through which they made huge financial gains…. There is no war going on anywhere without them having their finger in it.¹³

Second, Hamas adopts an earlier iteration of viewing Israel and the Jews as Nazis. Article 29 of their covenant describes the Jews as brutally behaving like Nazis toward women and children. Paul Berman and Jeffery Herf also note that the “Jews as Nazis” and “Israel as Nazis” tropes were embedded in Leninist conspiracy theories of world politics, Nazi and European fascist propaganda, and were absorbed into Islamist ideology during World War II when collaboration with the Nazis took place. Both the BDS movement and Students for Justice in Palestine, along with a plethora of their supporters, have integrated the labeling of “Jews as Nazis” and “Israel as Nazis” into their rallies and protests. This accusation succeeded in the past and it is once again widely employed.¹⁴

Third, one of the most significant tools that Hamas introduced and that was absorbed into the BDS movement is the prohibition against dialogues and cooperative meetings with pro-Israeli groups and supporters. BDS call this “antinormalization” or the total rejection of any and all forms of interaction with pro-Israeli groups, thus preventing any potential for the legitimization of Zionism or Israel. Antinormalization is employed on college campuses throughout the United States today, and it also serves as the basis for barring Jewish students from “progressive” college clubs if they support Israel or are suspected of supporting it.

The BDS movement’s most unique contribution is not its recirculation of anti-Semitic/anti-Zionist tropes and characterizations but rather its introduction of a set of linguistic techniques aimed at camouflaging the movement’s true intentions of denouncing, demonizing, and delegitimizing Israel and Zionism. The movement thereby strives to marginalize and eventually destroy Israel while stifling, isolating, and undermining the voices of its supporters. Eli Shott refers to these techniques as “terminological warfare.”¹⁵

BDS AND LINGUISTIC CAMOUFLAGING

In his many writings on anti-Semitism/anti-Zionism, David Hirsh uncovers five key linguistic techniques used by the BDS movement.¹⁶

First, “explanatory flattening” treats Zionism as a homogeneous phenomenon across time and across political divisions. This technique incorrectly assumes that there is one anti-Zionist project and misses critical distinctions over time.

Second, “methodological idealism,” also referred to as human rights or social justice models, frames the BDS narrative in righteous terms while framing the Israeli narrative in terms of immoral objectives including the continuation of so-called exclusionist racist policies. In using this linguistic technique the BDS movement argues that from its inception in the 19^th century, Zionism was exclusionary and racist and continues to be.

Third, in the “internationalist view of the world” global nation-states are divided into two groups: oppressed and oppressors. This simplistic binary division makes “anti-imperialism” an absolute principle by which to judge all nations. For the BDS movement and other major left-wing voices, anti-imperialism is no longer one among a litany of values including democracy, equality, sexual and gender liberation but is now declared to be the central value above all others. This construct enables the BDS movement to make the leap into arguing, erroneously, that Israel is the key site of the imperialist system. It casts Zionism as a human rights villain at the heart of all that is bad in the world.

The fourth technique is “criticism of Israel with the objective of demonizing it.” This technique is linked to the fifth technique, which Hirsh names the “Livingston Formulation” after former mayor of London Ken Livingston, who, Hirsh asserts, conflates anti-Semitism and anti-Zionism while insisting that this is mere criticism. Hirsh argues that the Livingston Formulation together with demonization not only foments hostility toward Israel but licenses anti-Semitic ways of thinking for general public consumption, opening the door to the exclusion and hatred of Jews.

Examining how so-called criticism, demonization, and the Livingston Formulation operate in tandem, Hirsh surveys early forms of anti-Semitism in terms of their rhetoric, themes, and images. On this basis he divides anti-Semitic themes into two groups. The first consists of blood-libel accusations, which charge Jews with murdering children for their own pleasure or for the requirements of their religious observance. Today the blood-libel accusation is used to claim that Zionists are wanton killers of children and also steal the organs of dead Palestinians so as to sell them on the global market. The second group of anti-Semitic themes comprises global conspiracy theories, which accuse Jews not only of controlling the world but also of causing others to suffer so that they themselves will benefit. Thus, according to Hirsh, references to the “Israel lobby” use the historical global-conspiracy theme to insist that Jews pervert U.S. foreign policy by promoting Israel’s interests above those of the United States. Jewish political power is seen as a perversion of the common good that promotes so-called parochial or identity politics.

Hirsh sounds the alarm about the true danger that these linguistic propaganda techniques pose:

What we are witnessing today is a different form of anti-Semitism. It is an anti-Zionism discourse that is shaping anti-Semitism and in no way is this anti-Semitism a mere criticism of Israel as the BDS and its supporters claim. This is a hostility toward Israel which constitutes something more threatening than criticism—it is the demonization which expresses opposition to Israel’s existence.

Israel is the only nation on the planet that is experiencing an “onslaught” of this kind.

Joel Fishman demonstrates how demonization together with delegitimization on the international level aim to isolate an intended victim from the community of nations as a prelude to bringing about its downfall or even destruction. These processes deny the victims rights and prerogatives enjoyed by other members in good standing of the international community, particularly the right to make one’s voice heard. The BDS movement and other organizations supporting it obliterate the history, national identity, culture, and rights of the sovereign nation of Israel, especially its right of self-defense. The ultimate goal of delegitimization and demonization is never reconciliation. It is never grappling with the complex, essential road to a two-state solution. The ultimate goal of BDS is what Fishman calls “politicide.”¹⁷

The late Professor Ehud Sprinzak, a leading expert in genocide studies, agreed. He observed:

In social science terms, the basic paradigm of a nation that has been demonized and dehumanized results in them not only being perceived as irrelevant, but their thoughts and actions are considered defective and though they may have perfectly reasonable things to say no one will listen. At best they will be indulged as members of a sub-human race.¹⁸

Eyad Kishawi, a BDS activist and author of the paper “Divestment from Israel in Its Fifth Year: A History and Method for US and European Activists,” provides what he calls a “cookbook” of goals, methods, and strategies by which the movement can win the hearts and minds of the public. The paper underlines the importance of employing the techniques described above by Hirsh, Fishman, and Sprinzak.

Kishawi defines the struggle of BDS as directed at the apartheid state of Israel, which he sees as a proxy of U.S. imperialism. He repeatedly characterizes Israel as an exclusionary-racist state with exclusionary and racist structures. Israel, according to Kishawi, engages in the most brutal forms of modern-day torture while continuing to engage, from 1948 to the present, in an ethnic-cleansing campaign aimed at removing its indigenous inhabitants. He provides no data, historical context, or knowledge of Jewish history. Instead he directs activists to not engage when asked for factual information.¹⁹

In terms of strategy, Kishawi informs activists of the BDS strategy to fight this evil through specific activities within the United States:

The strategic goal of the US based movement is to peacefully disrupt the continuity and evolution of Zionist ideology and its aspiration to achieve regional and global dominance by shifting politics from the realm of discourse to the realm of material activism. The starting point is to mount material resistance to offset US governmental and corporate support through political isolation, divestiture, boycott and making the case for ending US aid to Israel. One need not engage in a deep discussion of the theoretical and historic framework from which Zionism emerged to recognize that Israel is racist and exclusionary. The policies of the state are self-evident, and are a natural outgrowth of its inherent character.²⁰ (emphasis added)

Kishawi informs activists that the goal of the BDS movement is a long-term one that will not be accomplished overnight, but that can be accomplished through incremental steps or what the expert strategic thinker Stefan Possony refers to as “phased stages” in revolutionary planning. According to Possony, phased stages are part of a larger effort that he calls the “people’s war paradigm.” This paradigm was adopted by Marxist-Leninists and utilized by China and Vietnam as a political warfare tool (as opposed to a military warfare tool), specifically designed and used to promote the delegitimization of one’s adversary.²¹

Thus Kishawi tells BDS activists:

We start from the assumption that victory is an accumulation of incremental successes and that a systematic approach is necessary to maintain a positive trend of accumulation. We assert a discourse that is consistent with the objective of dismantling the exclusionary-racist structures of Israel, and then we promote a sector-based approach to tactfully proliferate the discourse.

Destruction through incremental steps includes accusing Israel of being a racist and apartheid state, which, according to the BDS movement, makes Israel a criminal entity. This tactic is essential for the movement to pursue charges against Israel not only in the court of public opinion but in the UN international forums and at the International Criminal Court.

This tactic also brings the BDS movement on board with the “apartheid” campaign on display at the United Nations in 1975 with the passage of the “Zionism is racism” resolution, and at the 2001World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban. The “Israel = apartheid state” notion is used to assert that anti-Semitism is no longer a human rights issue; it was also used in 2004 at the International Court of Justice in The Hague when Israel’s security barrier to protect its citizens from terrorist attacks was declared illegal.²² The BDS campaign to paint Israel as an “apartheid state” has indeed succeeded in altering public opinion. The association of the concept of apartheid with the evil South African regime, linked to the notion that ending apartheid is a moral imperative and a critical social justice issue, has further eroded public support for Israel. Ben Cohen points out that this campaign, in addition to diminishing that support and gaining followers for the BDS narrative, has been a game changer in other ways. By shifting its message to a battle against Zionism, which was now defined as racist, imperialist, militarist, expansionist, and supportive of apartheid, BDS was able to maintain that one could be both anti-Zionist and anti-Israeli without necessarily being anti-Semitic.²³ Many scholars, however, argue that anti-Zionism can be viewed as anti-Semitic because it promotes the termination of a legal, sovereign, democratic Jewish nation by using standards applied to no other nation. This is a campaign of political warfare against Israel. Possony refers to this transfer of legitimacy from one group to another as the “replacement process.”²⁴

BDS TARGETS HIGHER EDUCATION

Although BDS directs its efforts at several major American institutions, among its key targets are university and college campuses. According to the movement, universities are critical to transforming American public opinion because they constitute the largest holders of corporate investments, Israel Bonds, and pension funds, all of which form the perfect setting for their campaign to divest from Israel, boycott Israeli products, and demand the end of foreign aid to Israel. In addition, the academic ethos of political activism along with social justice theories, which present complex global tensions in terms of binary power struggles between oppressor and oppressed, make it an easy task for BDS to build coalitions with diverse interests that have no connection to Israel nor any knowledge about it, but that nevertheless adopt the concept of the “intersectionality” of struggling groups who seek political, social, racial, and economic justice from oppressors. As Dominic Green notes,

BDS seeks to transform the atmosphere of university intellectual life. They seek to control the intellectual environment, to create a “safe space” for the indoctrination of biased and often false views of the Israeli-Palestinian conflict. Thus, the practice of BDS tends towards the abuse of freedom of speech as well as the undermining of intellectual discourse, diplomatic complexity, and life-long intellectual curiosity that is factual, objective, rational, and empirical.²⁵

Assisting the BDS advocates on university and college campuses is Students for Justice in Palestine (SJP), an organization established in 2001 that now has more than 120 chapters throughout the United States. According to the Anti-Defamation League, the SJP’s four main goals on college campuses are to:

1. educate the students about the conflict from an anti-Israel angle through film screenings, off-campus speakers, and teach-ins;
2. paint Israel as an “apartheid state” reminiscent of the regime of South Africa. This is achieved through mock “apartheid walls” and checkpoint displays on campus as well as weeklong Israeli Apartheid Week Programs;
3. initiate and implement BDS campaigns against Israel as a way to “dismantle” Israel just like the apartheid regime in South Africa was dismantled. This includes resolutions through student governments and classroom lectures aimed at boycotting Israeli products on campus;
4. protest pro-Israel campus events by disrupting and/or heckling at the event, press the cancellation of speakers that are pro-Israel, hand out flyers outside the event promoting BDS propaganda.²⁶

As hundreds of anti-Israeli rallies took place, the AMCHA Initiative watchdog group found a verifiable correlation between anti-Zionist activism and anti-Semitic outrages. AMCHA data reveals that “the more exposed a campus is to propaganda of anti-Zionism, the more likely it is that Jewish students will face harassment, and intimidation.” AMCHA’S findings reveal a correlation between violence and on-campus chapters of SJP groups.²⁷

In addition, the following factors helped to create a synergy between the campus environment and the one-sided nonfactual messages of BDS: the impact of postcolonialism paradigms informing much of social science research and classroom lectures; the impact of the works of Professor Edward Said on the framing of research and issues regarding Palestinian liberation, Israel, and Zionism; the limited knowledge among Jewish students and non-Jewish Israel supporters about the complex history of Zionism and Israel; the misreading and underestimation of the BDS movement’s potential ability to change public opinion toward Israel and Zionism; and the reshaping of the academic environment from objective research to the politicization of scholarship.²⁸

Dr. Larry Summers, former president of Harvard University, commented on the impact of this campus environment in his address at the Columbia Center for Law and Liberty on January 29, 2015:

In the fall of 2002 a petition that gained more than 500 signatures was circulated among the faculty and students of Harvard and MIT calling on the universities to divest stock in companies that did business in Israel to protest against Israel’s occupation of the Palestinian territories. At about the same time a clamor for an academic boycott of Israel arose in Europe and Israelis were forced off the editorial boards of a number of academic journals. At protest rallies of various kinds on and off campus student and faculty members were heard comparing Israeli policy to those of apartheid South Africa and comparing Israeli Prime Minister Sharon to Adolph [sic] Hitler. This was all happening in the broader context of what seemed to be a significant surge in anti-Semitic activity with Holocaust denying candidates reaching the runoffs for the leadership of several Western countries and a small epidemic of synagogue burnings.

While I believe that pressure from boycotts, divestment and sanctions declined for a few years in the middle of the decade, these pressures have grown sharply in recent years…. It is my impression that there are more grounds for concern today than at any point since WWII. It is a sad irony that Theodor Herzl, the founder of modern Zionism, hoped that the establishment of the state of Israel would bring an end to “anti-Semitism….” On college campuses in the U.S. vilification of Israel has never been so great as it is today…. Universities with increasing frequency find themselves unknowingly lending their name and sponsorship to conferences in which the legitimacy of Israel as a state is challenged. While anyone is free to hold any opinion they wish, no member of a university community has the right to arrogate the prestige of their institution behind their personal view…. If zealous minorities no matter how well intentioned are able to hijack the prestige and resources of the Academy in pursuit of objectives that are parochial and bigoted, why should the broader society refrain from seeking to set the Academy’s agenda. The right to say, advocate, or propose anything must always be protected. But it must come with others’ rights or even the obligation to call out words and deeds that threaten the community and the values or moral concerns and rational inquiry for which it stands.²⁹ (emphasis added)

From 2014 to 2015 there were more than 500 anti-Israeli programs on U.S. college campuses, an increase of 35 percent from the prior academic year.³⁰ Instances at the University of Minnesota Law School and at Harvard Law School demonstrate the extent to which anti-Israeli disruptions are occurring.

In November 2015 the renowned Israeli philosophy scholar Moshe Halbertal was shouted down and not permitted to give his lecture at the University of Minnesota Law School. According to Alden Pink at The Tower:

The protest was endorsed by the campus branch of SJP and was organized by the Minnesota Anti-War Committee, who tweeted before the event asking followers to “Help shut down” Halbertal’s lecture. An article by the Anti-War Committee in a local paper that had previously expressed support for the convicted Palestinian terrorist Rasmea Odeh, indicated that their intention was to prevent Halbertal from being heard…. Before the moderator got three words out, speakers rose from the audience, one after another, making it impossible for the Halbertal talk to proceed. The protestors systematically stood up one by one and yelled pro-Palestinian slogans, only for another to start up chanting again when someone was removed from the hall by university police. Protestors even interrupted law school staff explaining the rules of decorum for the event. The police were eventually forced to lock the doors to prevent more protestors from entering the hall. Three protestors were arrested on charges of disorderly conduct and trespassing before being released.³¹

As Professor Dale Carpenter of the University of Minnesota remarked to the Washington Post, the fact that “the freedom to present a lecture is threatened in this way at a public university is appalling, calling not only for the punishment of violations but for a clear statement by University officials defending the free exchange of ideas” (November 5, 2015).

The next year, on April 15, Ambassador Dennis Ross and former Israeli Foreign Minister Tzipi Livni were invited to speak and take questions on the Palestinian-Israeli conflict at Harvard Law School. The event was organized by the Harvard Jewish Law Students Association. According to Israel National News, the Boston Globe, and the Jerusalem Post, during a question-and-answer session a president of a student organization mocked the Israeli leader, asking her, “How is it that you are smelly?” Livni did not understand the question and the third-year law student repeated it, stating, “A question about Ms. Tzipi Livni, she’s very smelly, and I just was wondering.” According to the Harvard Law Record, “the insult was a clear reference to Livni’s ethnicity and nationality”; such comments “revived the antiquated and offensive notion of the ‘smelly Jew’—a term reeking of anti-Semitism—in order to insult.” The dean of Harvard Law School, Martha Minnow, decried the remark as a “violation of the trust and respect we expect in our community.” In an email to the faculty and students, she stated:

Discussion about Israel cannot devolve into ad hominem attacks against Jews. A quick internet search will show that the stereotype of “the Jew” as “smelly” or “dirty” has been around since at least the 1800’s. The Nazis promoted the idea that Jews “smell” to propagandize Jews as inferior people. The idea that Jews can be identified by a malodor is patently offensive and stereotypes Jews as an “other” which incites further acts of discrimination. The fact that such a hate filled and outdated stereotype re-emerged at Harvard Law School is nothing short of revolting.³²

Harassment, intimidation, discriminatory actions, and behaviors that can be categorized as violent have disrupted the lives of pro-Israeli Jewish students, faculty, and non-Jewish supporters of Israel. The following works extensively document this phenomenon: Anti-Zionism on Campus: The University, Free Speech, and BDS; Essential Israel: Essays for the 21^st Century; Dreams Deferred: A Concise Guide to the Israeli-Palestinian Conflict and the Movement to Boycott Israel; The Case against Academic Boycotts of Israel; The Flight of the Intellectuals; Countering the BDS Settler Narrative; Feminism and Zionism; Boycott, Divestment, and Sanctions (BDS) and Antisemitism.

The AMCHA Initiative’s 2018 statistical analysis³³ reflects the challenges and frightening attacks that Jewish students and supporters of Israel and Zionism now encounter on campus. The report’s data on various types of incidents and behaviors involving anti-Semitism and antipathy toward Israel and Zionism indicate that Jewish students now face an increasingly “hostile environment.” Using the Department of Education’s definition of a “hostile environment” as one that is “created when harassment is sufficiently serious to deny or limit a student’s ability to participate in or benefit from a school’s educational program,” the data suggest that behaviors that meet the criterion of harassment are those that are “intended to harm Jewish students and limit their ability to fully participate in campus life”; these are “more likely to contribute to a hostile environment than behaviors that do not show such intentionality.” Citing the 2003 Supreme Court case of Virginia v. Black, the AMCHA Initiative establishes a legal basis for its findings.³⁴ This case concerned a state’s right to ban the act of cross burning, a practice widely associated with racial hatred. The Supreme Court concluded that “cross burning done with clear evidence of an intent to threaten or intimidate an individual or group is not protected by the First Amendment and may be banned, but that in the absence of clear evidence of intended malice, cross burning is considered a form of expression protected by the First Amendment, and banning would be unconstitutional.” Significantly, the court affirmed that “expression intended to harm individuals or groups creates an objectively more threatening environment for its victims than expression with no clear intent to harm.”³⁵ This ruling is critically applicable to the situation of “hostile environments” for Jews and Israel supporters on today’s campuses.

AMCHA data reveal that anti-Israeli-related “incidents with the intention to harm Jewish and pro-Israel students are steadily increasing.”³⁶ The ostracizing or excluding of pro-Israeli students or groups has become more flagrant over time. Incidents including open calls for the boycott of pro-Israeli students or student groups or their total exclusion from campus life rose from three in 2015 to four in 2016, 14 in 2017, and 18 during the first half of 2018. Such incidents have occurred at the following higher-education institutions:

• At NYU, 53 student groups pledged to boycott NYU’s pro-Israel clubs and refused to sponsor events with them. The president of SJP at NYU was quoted in the school paper as saying, “Our point is to make being a Zionist uncomfortable on the NYU campus.”
• A San Francisco State University professor published on her program’s Facebook page, “that welcoming Zionists to campus is ‘a declaration of war against Arabs, Muslims, and Palestinians.’” Soon after flyers and posters showed up all over campus stating, “Zionists Are Not Welcome On This Campus.”
• The Black Student Union and various student organizations at California Polytechnic Institute issued a list of demands that included “an increase in ASI [Associated Students, Inc.] funding of ALL cultural clubs, with the exception of organizations that are aligned with Zionist ideology.”
• SJP at SUNY Stony Brook issued a statement saying “We will always stand against any Zionist group and to eradicate this practice…and fight against it.” An SJP member stated in the school paper, “We want Zionism off this campus, so we also want Hillel off this campus.”³⁷

AMCHA researchers conclude that “anti-Israel campus activists are not only intent on harming Israel, but increasingly, and alarmingly, they are intent on harming pro-Israel members of the campus community.”³⁸ Tammi Rossman-Benjamin, founder and director of AMCHA Initiative, states: “Despite the alarming increase in both quantity and severity of these acts, university administrators have on the whole been unresponsive, often chalking up Israel-related harassment to political free speech that does not warrant university intervention.”³⁹

For example, on September 27, 2018, a Jewish student leader at the University of Illinois at Urbana-Champaign, Hayley Nagelberg, spoke to the Board of Trustees about the anti-Semitism and anti-Zionism that Jewish and pro-Israeli students continue to face on campus. Her remarks clearly state the problem and underline the extent to which administrators who are responsible for students having a meaningful and productive educational experience continue to fail to respond to this urgent situation. Nagelberg, a senior majoring in animal sciences, said:

As a Jewish student at this university, I, and my peers have been subjected to extensive vicious harassment—online and in person—including threats of violence. I have been made to feel unsafe on campus and afraid to identify as Jewish. I have been targeted because of my religious faith and ethnic identity. The highest level university administrators have said for years that the university is working on this problem, but nothing of consequence has been done. As you can see in the extensive documentation before you, over the course of the last two and a half years, there have been at least 30 unique complaints of anti-Semitic discrimination brought to the attention of the University administration. These complaints include: my expulsion from a university committee because I am Jewish, swastikas being drawn and Israeli flags being burned; and university personnel acting in concert with anti-Semitic groups. Reports have been filed by undergraduate and graduate students, alumni, parents, faculty and other prominent state and national community leaders. These complaints have been brought to the bias team, senior administrators, the ODEA [Office of Diversity, Equity, and Access] and others who are entrusted with addressing such matters…. And yet, our claims have not been appropriately addressed as required by school policy; not within days, weeks, a year, or within my entire college tenure. This is an actionable violation of federal civil rights law…. The U.S. Department of Education has recently adopted the State Department’s definition of anti-Semitism. This is the definition that I ask you to adopt at our university. Illinois is not alone in these issues…. Many of the facts presented demonstrate that there is a particular dereliction of duty in handling claims pertaining to Jews…. The bias against Jews at this university is pervasive. It is unlawful and we call upon the Board of Trustees to remediate it at once.⁴⁰

The chancellor of the University of Illinois at Urbana-Champaign, Robert Jones, immediately responded by denouncing “anti-Semitic attacks under the guise of anti-Zionist rhetoric.”⁴¹ Meanwhile it was reported that only a few weeks before the Board of Trustees meeting, the university’s SJP chapter had held a rally during which Zionism was equated with white supremacy and fascism. According to Algemeiner, the SJP “threatened to use ‘any and all means necessary’ against the supporters of each ideology, including ‘full-scale armed conflict.’”⁴²

On September 5, 2018, a professor in the American Culture Department at the University of Michigan refused to write a letter of recommendation for a student who sought to study abroad at Tel Aviv University, as an expression of support for the academic boycott of Israel. As documented by the AMCHA Initiative:

The professor, John Cheney-Lippold, emailed a reply to the student requesting the letter of recommendation, stating, “I am very sorry, but I only scanned your first email a couple of weeks ago and missed out on a key detail. As you may know, many university departments have pledged an academic boycott against Israel in support of Palestinians living in Palestine. The boycott includes writing letters of recommendation for students planning to study there.”⁴³

As reported in Inside Higher Education, Cheney-Lippold stated: “I firmly stand by the decision because I stand against inequality, I stand against oppression and occupation, I stand against apartheid and I use that word very, very seriously.” He confirmed

that he sent the email but clarified that he made a mistake in saying that many university departments have supported the boycott against Israeli universities. What he should have said is that many individual professors do. He did state that it is “appropriate for professors’ ethical and political stances to inform their choices of whether and when to write letters on their students’ behalf…. I have extraordinary political and ethical conflict lending my name to helping that student go to that place.”⁴⁴

University of Michigan President Mark Schlissel responded to this incident very differently. Strongly emphasizing the university’s longstanding opposition to any boycott of Israeli higher-education institutions, he stated:

I want to take a moment to address the recent situation in which a faculty member refused to provide a previously promised letter of recommendation for a student because she was seeking to study abroad in Israel—and to reiterate that this view is not the position of the University of Michigan, nor does it reflect the position of any department or unit on our campus…. The academic aspirations of our students and their academic freedom—are fundamental to the University of Michigan, and our teaching and research as an institution…. The Regents, Executive Officers, and I have been deeply engaged in this matter. We will be taking appropriate steps to address the issue and the broader questions it has raised.⁴⁵

The stance of Cheney-Lippold, while not the stated position of the University of Michigan or President Schlissel, does square with the strategy and guidelines published by the Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI), an arm of the BDS movement. According to Cary Nelson, PACBI was launched in Ramallah on the West Bank in 2004 and joined BDS in 2005, with incarnations worldwide including the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI).⁴⁶ According to the research and analysis of Hirsh, Nelson, Andrew Pessin, and Doron Ben-Atar, and specifically of AMCHA founders Tammi Rossman-Benjamin and Leila Beckwith:

PACBI’s guidelines specify that American faculty “boycott and/or work towards the cancellation or annulment” of any school activity that involves Israeli academic institutions or their representatives. Faculty boycotts are encouraged and expected to shut down study abroad programs in Israel; refuse to write letters of recommendation for students wishing to go on a study abroad to Israel; scuttle American colleagues’ research projects with Israeli universities and scholars; and cancel events with Israeli leaders or scholars organized by US students or faculty.⁴⁷

On October 9, 2018, the Detroit News reported that Professor Cheney-Lippold had been sanctioned for refusing to write a letter of recommendation for a student to study in Israel because of his support for the BDS boycott against Israel. In a letter to the professor on October 3, 2018, Dr. Elizabeth Cole, interim dean of the university’s College of Literature, Science, and the Arts, informed Cheney-Lippold that he “will not get a merit raise during the 2018-19 academic year and will not be permitted to go on his scheduled sabbatical in January or any other sabbatical for two years.” Dean Cole wrote:

Your conduct has fallen far short of the University’s and College’s expectations for how LSA faculty interact with and treat students. This letter is a strong warning that your behavior in this circumstance was inappropriate and will not be tolerated…. In the future, a student’s merit should be your primary guide for determining how and whether to provide a letter of recommendation. You are not to use student requests for recommendations as a platform to discuss your personal political beliefs.

The letter went on to inform Cheney-Lippold that he “could also face additional discipline, up to and including dismissal, if a similar incident occurred in the future.”

It was also reported that “Cheney-Lippold wrote two letters for students who wanted to study in Israel before his tenure became official on September 1, 2018.”⁴⁸

News of the disciplinary action came the same day as a report that a second academic at the university, graduate instructor Lucy Peterson, had refused to write a letter of recommendation for a student upon learning that the student planned to study at Tel Aviv University.

Professors at the University of Michigan are not alone in such conduct. Similar incidents in which faculty followed the boycott guidelines have taken place at the University of California, California State University, Cornell University, and Syracuse University, to name just a few.⁴⁹

In addition to the restriction of educational opportunities for pro-Israeli students and faculty, studies of anti-Semitic activity on campus have found a strong relationship (four to seven times more) between the numbers of proboycott faculty members and anti-Jewish acts on campus.⁵⁰

For many years assessments of the BDS movement’s influence by Jewish communal organizations failed to sufficiently grasp the danger the movement poses. More often than not, these organizations evaluated the strength of BDS in terms of the passage or failure of student-government referendums to divest from and boycott Israel. Although no university board of trustees has supported BDS boycotts where pro-BDS student referendums were passed, the BDS movement has nevertheless succeeded in moving the campus discourse and culture toward an anti-Zionist perspective.

What is taking place on college and university campuses is what a growing number of scholars and pro-Israeli students experience as a double standard toward pro-Israeli groups. On the one hand, there is, and should be, an immediate response and investigation when other student groups experience hate language, harassment, and discrimination. However, when it comes to the growing harassment of Jews, Zionists, and pro-Israeli groups, there is administrative ambivalence, a merely symbolic administrative response, or no response at all in the name of “freedom of speech” for BDS. Many top administrators have neglected to investigate the intent and proclivities of the BDS movement. Pro-Israeli students and faculty remain unprotected as harassment, traditional anti-Semitism, anti-Zionism, and anti-Israelism continue with minimal consequence.

Jewish and pro-Israeli groups have not remained silent. What follows is an analysis of the political activism of Jewish and pro-Israeli interest groups that have mobilized to educate the public as well as federal, state, local, and municipal political leaders about the activities and impact of the BDS propaganda war.

THE INITIAL FEDERAL RESPONSE TO THE BDS MOVEMENT

In 2005, the same year in which BDS launched its activities, Jewish communal leaders and Israel supporters began to discuss potential problems that the movement posed in the United States.

Among the first to raise concerns specifically about the BDS movement’s impact on Jews and Israel supporters on campus was Kenneth Marcus, who in 2005 was staff director at the U.S. Commission on Civil Rights. Speaking at a briefing held by the commission on November 18 that year, Marcus contended that BDS posed five critical concerns to both higher education and higher-education administration:

1. Many college campuses throughout the U.S. continue to experience incidents of anti-Semitism. This is a serious problem which warrants further attention. While incidents of threatened bodily injury, physical intimidation, or property damage are now rare, they have been alleged on some campuses. On other campuses students have alleged patterns of threatening or intimidating behavior, derogatory remarks, vandalism and use of swastikas and other symbols of hatred and bigotry. When severe, persistent or pervasive, this behavior may constitute a “hostile environment” for students in violation of Title VI of the Civil Rights Act of 1964.
2. On many college campuses, anti-Israeli and/or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. For example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of the Jewish slaughtering of children for ritual purposes, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israel or anti-Zionism.
3. Substantial evidence suggests that many university departments of Middle East studies provide one-sided highly polemical presentations and some may suppress legitimate debate concerning Israel in and outside the classroom. This would include any program in which a student is told that she may not speak in the discussion of Middle East politics on the ground that he or she has ethnic Jewish physical characteristics.
4. Many college students do not know what rights and protections they have against anti-Semitic behavior.
5. More data are required to determine the full extent of this problem. Federal government currently gathers data regarding hate crimes, including hate crimes perpetrated at educational institutions…. However, the data is insufficient insofar as educational institutions are not currently required to report categories such as vandalism that do not involve bodily injury.⁵¹ (emphasis added)

The complex question of when anti-Zionism can be correctly considered anti-Semitic became a subject of heated debate. It took more than 15 years for federal legislators to recognize how anti-Semitism takes different forms and to grasp the multiple manifestations of anti-Semitism in human behavior. Marcus tackles this thorny issue in his 2015 book The Definition of Anti-Semitism:

In today’s political context, the definition of anti-Semitism most frequently arises in disputes concerning whether certain hostilities toward Israel should be considered “anti-Semitic.” The best definitions emphasize that many criticisms of Israel are not anti-Semitic. At the same time, they recognize that animus toward Israel may be anti-Semitic in some circumstances…. More precisely hostility toward Israel may be considered anti-Semitic when any of the following four conditions are met. First, it may be associated with conscious anti-Semitism. In some cases it may be a pretext or ruse to conceal conscious animosity toward Jews. Second, it may arise from tacit or unconscious animosity toward Jews. Third, it may arise from and advance a climate of opinion that is hostile to Jews, regardless of the perpetrator’s own mental state. Fourth, it may irrationally discriminate against Jews based on a group trait that is deeply or immutably connected to Jewish history.⁵²

Having examined the contexts and complexity of this relationship, Marcus offers a definition of anti-Semitism that he finds “the least vulnerable to the various challenges that definitions of anti-Semitism have historically faced.” Namely: “Anti-Semitism is a set of negative attitudes, ideologies, and practices directed at Jews, as Jews, individually or collectively, based upon beliefs and assumptions that flow from the application of double standards toward Jews collectively, manifested culturally in myth, ideology, folklore, and imagery, and urging various forms of restrictions, exclusions, and suppression.”⁵³

While the issue of what constitutes anti-Semitism was being debated, anti-Semitism steadily increased both internationally and domestically. By 2012 there had been several attacks on European Jews, including one, in March that year, at a Jewish day school in Toulouse in which three children and a rabbi were killed. In May 2012 four people were fatally shot by a French gunman at the Jewish Museum in Brussels. In July 2012 an attempt was made to set fire to a synagogue in Wuppertal, Germany, that had been built on the site of a synagogue burned to the ground by the Nazis in 1938. In July 2015 an attack at a kosher supermarket in Paris just before the Jewish Sabbath killed four Jews. Thousands of French Jews, feeling unsafe in France, decided to move to Israel. In addition, a number of European institutions, intellectuals, and businesses boycotted Israel, and there were growing instances of demonstrators shouting “Gas the Jews.”

By 2014 it was apparent to members of the Obama administration as well as Congress that anti-Semitism was steadily increasing in Europe. Stephanie Power, then ambassador to the United Nations, stated at a meeting of the Organization for Security and Cooperation in Europe (OSCE), “The growing number of anti-Semitic acts are not only a threat to the Jewish community, they are a threat to the larger project of European liberalism and pluralism…. Rising anti-Semitism is rarely the lone or the last expression of intolerance in a society…it is the canary in the coal mine.”⁵⁴

By 2015 and 2016 the relationship between anti-Semitism and anti-Zionism was no longer a theoretical issue but had evolved into a major policy concern. In 2015 members of the House of Representatives stated that “our job is to confront this hatred, understand its scope and depth, and provide a thorough assessment outlining what the US and its partners are doing to meet this challenge. Anti-Semitism is as much an American concern as it’s a Jewish concern and a domestic concern as it is an international concern.”

As a result, on March 25, 2015, Congress launched the House of Representatives Bipartisan Task Force for Combating Anti-Semitism. Members included Representatives Nita Lowey (D-NY), Chris Smith (R-NJ), Elliot Engel (D-NY), Ilana Ros-Lehtinen (R-FL), Steve Israel (D-NY), Kay Granger (R-TX), Ted Deutch (D-FL), and Peter Roskam (R-IL).⁵⁵

CONGRESSSIONAL RESPONSE TO GROWING ANTI-SEMITISM

On September 28, 2016, the task force introduced the Combating European Anti-Semitism Act of 2016. Based on findings of Congress, the bill acknowledges that “the Jew” as a collective and Israel as a Jewish state are simultaneously being threatened, and notes a “steady increase of anti-Semitic incidents in Europe resulting in European Jewry being targeted for lethal attacks, verbal and physical abuse,” all of which have eroded the quality of Jewish life. The bill also observes that “anti-Zionism has at times devolved into anti-Semitic attacks.” This marks an important response to BDS propaganda, which repeatedly argues that the anti-Semitism charges are merely a means used by Israel supporters to shut down the movement’s criticism of Zionism and Israel as illegitimate, racist, colonialist, imperialist entities.

Of critical importance was the task force’s application of the definition of anti-Semitism adopted by the U.S. State Department in 2010, which was developed by the European Monitoring Centre on Racism and Xenophobia. This definition views anti-Semitism as:

aiding or justifying the killing or harming of Jews often in the name of radical ideology or an extremist view of religion; making demonizing, dehumanizing, or stereotypical allegations about Jews, especially but not exclusively, the myth about the world Jewish conspiracy or of Jews controlling the media, economy, government, or other social institutions; accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust; accusing Jewish citizens of dual loyalty and greater loyalty to Israel or Jewish concerns.⁵⁶

The task force made it clear that its legislative initiative was as much an American concern as it was a Jewish one, and as much a domestic concern as it was an international one. It made it clear that both “the Jew” as a collective and Israel as a Jewish state are under threat as anti-Zionism takes the form of anti-Semitism. This framing of the measure made it clear to the BDS movement that its actions can be accused of being, and potentially found to be, anti-Semitic.

In 2016 the task force was made aware of the alarming spike in anti-Semitism on college campuses. In the first half of the year the AMCHA Initiative published its findings on campus anti-Semitism, stating that “the boycott of Israel was transforming itself into boycotting Jewish students, ostracizing Jewish students, and trampling on their rights of academic freedom, civil rights, and security.”⁵⁷

The congressional task force acknowledged that the growing threat of campus anti-Semitism could be manifested not only by bigoted language and physical attacks but also by anti-Semitism masked as anti-Israeli and anti-Zionist positions. It recognized that the anti-Semitism of earlier decades differed in many ways from its present iteration. Not only had the manifestations of this bigotry changed over time but the policies for fighting it needed to be adjusted and administrators needed to learn to recognize new and evolving manifestations. However, the task force did not view the Department of Education and its Office for Civil Rights as having shown adaptability to this new reality of bigotry that was experienced not only by Jewish students but by Muslim and Sikh ones as well.

Hence on April 15, 2016, the task force wrote to the new secretary of education, John King, to call his attention urgently to the dangerous situation increasingly faced by Jewish students. The task force called for a sea change in policy:

An alarming rise of anti-Israel programs on American college campuses contribute to increasing harassment, intimidation, and discrimination against Jewish students. While we believe that students’ freedom of speech and assembly should be respected, there are increasing reports that activity advertised as anti-Israel and anti-Zionist is devolving into displays of subtle, but often outright anti-Semitism…. Attacks on students because of their actual or perceived religion, ancestry, or ethnicity, are unacceptable. We believe strongly that no student should ever face discrimination and that school activities must be structured in a respectful manner to ensure academic integrity and a nondiscriminatory environment throughout the entire campus. For these reasons, we ask the Department of Education (DOE) to assess its ability to monitor and respond to anti-Semitic incidents and to take additional steps to combat intimidation and harassment against minority students on college campuses…. The Department’s policies must continually evolve to meet the changing manifestations of certain biases to avoid new elements of prejudice. For example, anti-Semitic intimidation, harassment, and discrimination are manifested not only in easily recognizable anti-Semitic slurs, but also in anti-Semitism masked as anti-Israel and anti-Zionist sentiment. With this in mind, we would like to better understand how the DOE is implementing its anti-discrimination policy and training staff in its Office of Civil Rights (OCR) and regional enforcement offices to apply these protections on college campuses.⁵⁸

Going far beyond any previous policy initiative on religious bigotry, the task force framed its concerns in terms of policy development, implementation, and evaluation. The questions the DOE’s top executive was to respond to included:

How many cases of anti-Semitism on campus is OCR currently investigating? What instruction has been given to the OCR regional offices to learn how to detect cases of anti-Semitic bias and implement these protections on college campuses? Does the DOE track cases of ancestral or ethnic bias against members of groups who share a common faith (e.g. Jewish, Muslim, Sikh) on college campuses? Has the DOE provided policy guidance concerning anti-Semitism on campuses on examples of when actions and discourse nominally about Israeli policies devolve into hostile environments for some students, and are supported, permitted, discarded, or insufficiently addressed by school employees? Is the DOE providing technical assistance and public education on these issues? Does the DOE engage frequently with stakeholders that focus on these issues?⁵⁹

On June 7, 2018, the abovementioned Kenneth Marcus, who is a leading expert on higher education’s battle against new forms of racial, ethnic, and national bigotry, was confirmed by the Senate as head of the DOE’s Office for Civil Rights by a vote of 50-46. His appointment was delayed for months, however, because of staunch opposition by the American Civil Liberties Union, the Arab American Institute, Arab American communal organizations, LGBTQ organizations, and several groups representing the disabled. These stakeholders urged rejection of his nomination in light of his stance on issues of immediate concern to their interests and values. Marcus was supported, however, by more than 60 Jewish, Christian, educational, and civil rights organizations including Hillel International, the Jewish Federations of North America, the Anti-Defamation League, CUFI (Christians United for Israel), the American Jewish Committee, StandWithUS, the AMCHA Initiative, and the Endowment for Middle East Truth.

As director of the OCR, Marcus has adopted an official definition of anti-Semitism that gauges whether an incident or behavior will result in an investigation by his agency. According to Inside Higher Ed, Marcus had advocated this definition, which was formulated by the International Holocaust Remembrance Alliance, before joining the department. It includes opposing the existence of the Israeli state or applying standards to Israel “not expected or demanded of any other democratic nation” as examples of potential anti-Semitism, along with holding Jews collectively responsible for Israel’s actions. In addition, the term “Zionist,” which Marcus views as a political label denoting support for creation of the Jewish state, can be used as code for anti-Semitic discrimination.

Congressional legislative activities continued in response to the increasing evidence of anti-Semitism both domestically and internationally. On November 28, 2016, the Anti-Semitism Awareness Act was introduced by Senators Tim Scott (R-SC) and Bob Casey (D-PA). The bipartisan measure reflected the findings of the task force and aimed to ensure that the DOE had the necessary tools to investigate all anti-Jewish incidents as well as those targeting Muslims and Sikhs. This measure codified the abovementioned definition of anti-Semitism by the International Holocaust Remembrance Alliance, which was also adopted by the State Department’s Special Envoy to Monitor and Combat Anti-Semitism and considered for adoption by the OSCE.

The legislation’s main purpose was to describe anti-Semitism explicitly to enable examining violations of Title VI of the Civil Rights Act based on the victim’s actual or perceived Jewish ancestry or Jewish ethnic characteristics. According to this definition, examples of anti-Semitism include: calling for or aiding or justifying the killing or harming of Jews; accusing Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust; demonizing Israel by blaming it for all interreligious or political tensions; and as noted earlier, judging Israel by a double standard that would not apply to any other democratic nation. This act states that it is not intended to diminish or infringe upon First Amendment rights.⁶⁰

Unfortunately, the Anti-Semitism Awareness Act of 2016, which was unanimously endorsed by the Senate on December 1 of that year, did not make it out of the House Judiciary Committee one week later. The companion bill, introduced into the House by Reps. Peter Roskam (R-IL) and Ted Deutch (D-FL), was stymied in the committee for further discussion. The companion bill was strongly supported by pro-Israeli groups but strongly opposed by the ACLU, pro-Palestinian groups, a number of left-wing groups who argued that the measure opened the door to possible infringements of freedom of speech against individuals and groups critical of Israel, and by some who claimed that the bill did not address anti-Semitism led by the alt-Right.⁶¹

Although from 2016 to 2018 the bill was reintroduced several times, it remains stalled amid heated controversy. Among the arguments against it, Professor Cary Nelson, speaking on behalf of the Alliance for Academic Freedom, stated:

We the members of the Alliance do not believe that Congress should be in the business of setting forth official definitions of anti-Semitism. We do not think any definition of anti-Semitism including one originally drafted with the needs of European data collectors utmost in mind and then adopted with minor changes by the Department of Education for diplomatic purposes, has any legitimate application by Congress to contentious political speech on campus.⁶²

Anthony Romero, the ACLU’s executive director, said that the bill

risks chilling the free speech of students on college campuses and is unnecessary to enforce federal law’s prohibition on harassment in education…. It can lead to suppression, especially if the DOE launches investigations strongly because students have engaged in speech critical of Israel…. It is vital to distinguish First Amendment protected speech including disagreements and harsh criticism of the government of Israel from harassing, intimidating, and discriminatory anti-Semitism.⁶³

The Arab American Institute asserted:

The bill includes an overly broad political definition of anti-Semitism which includes criticism of the state of Israel. The bill should be opposed because it misappropriates a non-legally binding definition for the basis of legal prohibitions, does not combat anti-Semitism, constitutes discrimination, and is unconstitutional as being overly broad.⁶⁴

Supporting the measure were establishment Jewish organizations, Christian organizations, Israel supporters, and academics and legal scholars. One of the most insightful letters of support came from former U.S. Solicitor General Paul Clement, who argued:

Clarifying anti-Semitism is a unique contribution that this bill makes and it does not criminalize speech. It allows protected speech to be looked at when considering whether actions are motivated by hate and bias…. The bill would make a significant contribution toward the goals of an inclusive campus climate. The Israeli-Palestinian conflict is complex. In the heat of the debate and with passionate students, the conflict can escalate on campus and students can cross lines of inappropriate behavior, conflating and connecting Jewish students on campus with Israel. Most of the time, anti-Israel rhetoric and imagery is acceptable, but there are times that anti-Semitism does present itself in stereotypes and tropes that have been used against Jews throughout their history. To the extent that students are targeting Jewish students as Jews, who are held responsible for the actions of Israel, this is a factor in determining whether these actions constitute unlawful, discriminatory treatment of Jewish students that deprives them of equal education opportunity. This law provides the Department of Education with a tool to understand the concept that anti-Israel action on campuses can occasionally manifest in anti-Semitism [and] also provides guidance for those times when accusations of anti-Semitism are misidentified or exaggerated. This training tool will ultimately help keep balance and perspective.⁶⁵

What became clear by 2018 is the extent to which university authorities face a twofold dilemma of operating institutions that are committed to free speech while being obligated to investigate and address hostile-environment claims. Those who promote the effectiveness of student educational experiences must walk a tightrope of providing their charges with the means to discuss controversial issues while preventing debate from fostering a hostile environment, forms of harassment, and discrimination. Alexander Tsesis’s in-depth examination of this complex issue offers legal insight into First Amendment doctrine as it applies to higher-education administration. His detailed consideration of Supreme Court and lower-court decisions has light to shed for lawmakers, administrators, and stakeholders.⁶⁶

Although this bill still remains stuck in committee, the BDS opponents are making a positive contribution. The debate on the Anti-Semitism Awareness Act opened up a rich conversation about highly complex issues. What becomes apparent is the extent to which the definition and operationalization of anti-Semitism at the federal level of legislation are still being debated after more than 15 years. In addition, the debate over the point at which criticism of Israel moves into the realm of anti-Semitism remains a political bone of contention among lawmakers and stakeholders. At the same time, BDS opponents have lent historical context and conceptualization to the public debate during which multiple perspectives and interests have been expressed. Public hearings in the Senate and the House have clarified to the public the increasing anti-Semitism and its impact on the daily lives and educational opportunities of Jews and Israel supporters through open hearings as opposed to indoctrination, falsehoods, and propaganda. The BDS opponents’ efforts have provided lawmakers with legal, administrative, and pragmatic insights that the BDS opponents hope will eventually become codified into law. All of this has been done without demonizing, delegitimizing, or using vitriol against their opposition.

Anti-BDS Politics and Congressional Trade Legislation

In addition to the issue of anti-Semitism, congressional activity sought bipartisan support in fighting the BDS movement’s increased promotion of demonization and delegitimization of Israel through trade agreements at the national and international levels. Congressional legislation was specifically crafted to underline long-term U.S. opposition to boycott movements as well as the intersection of vital American interests with those of its ally Israel.

This section examines three congressional trade measures: the United States-Israel Trade and Commercial Enhancement Act (2015), the Protecting Israel Against Economic Discrimination Act (2016), and the Combating BDS Act (2016).

Over the past several years, growing contingents of countries across the globe, primarily in Europe, have sought to isolate and delegitimize Israel through BDS for political purposes. Legal experts have emphasized the efforts by the European Union to create a “legal ghetto” around Israel by attempting to “rewrite international trade laws that will only apply to Israel…. Such efforts violate existing multilateral and bilateral trade agreements.”⁶⁷ In 2015 Congressmen Peter Roskam (R-IL) and Juan Vargas (D-CA) cosponsored the United States-Israel Trade and Commercial Enhancement Act, which leverages ongoing trade negotiations to discourage U.S. trade partners from engaging in economic discrimination against Israel and establishes a clear U.S. policy opposing BDS as detrimental to global trade and regional peace and stability. While the act does not propose any authorization by the federal government to oppose domestic BDS initiatives, it aims to discourage foreign and international institutions from supporting such initiatives.⁶⁸

The act has two main sections. The first comprises strategies to combat efforts to limit commercial relations with Israel through BDS. The threefold strategies include:

1. Instructing the United States Trade Representative (USTR) to use free-trade negotiations to discourage potential trade partners from participating in or promoting politically motivated acts of BDS against Israel, and to seek the elimination of boycotts and barriers to trade where they exist;
2. Establishing U.S. policy to oppose politically motivated actions by states or international institutions that penalize or otherwise limit commercial relations specifically with Israel such as boycotts, divestment, or sanctions; and
3. Monitoring BDS-related activities by requiring foreign companies traded on U.S. stock exchanges to disclose whether they have participated in, or have faced pressure to participate in, acts of economic discrimination against Israel.

Second, the Roskam-Vargas bill provides strategies to strengthen the mutually beneficial U.S.-Israeli economic relationship by: (1) strengthening the mutual U.S.-Israeli economic and technical value of cooperation, including the benefit of cooperation with Israel for American companies; (2) reaffirming the strategic importance of trade and commercial relations to the pursuit of sustainable peace and regional stability; and (3) prohibiting American courts from recognizing or enforcing judgments made by foreign courts against business in Israel, and requiring the administration to provide Congress with regular reports on any such judgments and steps being taken by the U.S. government in order to discourage them.⁶⁹

Senators Ben Cardin (D-MD) and Rob Portman (R-OH) introduced a similar bill in the Senate (S.619). On April 23, 2015, the measure passed after unanimous adoption of measures to combat BDS by the House Ways and Means Committee and the Senate Finance Committee.⁷⁰ The Senate bill required that rejection of BDS be made a principal trade objective in the Transatlantic Trade Investment Partnership (TTIP) negotiations with the European Union.

Senator Cardin lauded the bipartisan effort by stating:

Israel is one of America’s closest allies and the only stable democracy in the Middle East. We may not agree with every policy, but we cannot allow political partners in the EU to fall prey to efforts that threaten Israel’s existence. Economic tools and trade agreements have been used throughout world history to move governments and change policy, but when these actions seek to delegitimize a country’s right to exist, we need to draw a line.⁷¹

Deep fissures and contentious debates emerged regarding the contents of the measure. The most critical disagreement over the BDS portion of the bill concerned the language employed about goods produced within Israel and those produced in the Israeli-controlled territories.

For example, the State Department expressed “official discomfort with language that ‘conflated Israel and Israeli-controlled territories.’” Department spokesman John Kirby asserted:

The conflation of Israel and Israeli-controlled territories is not supported by this administration. Every U.S. administration since 1967, Democratic and Republican, has opposed Israeli settlement activity beyond the 1967 lines…this administration is no different. The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.⁷²

President Obama shared Kirby’s view and expressed his disagreement in his signing statement for the bill. Obama said he would not enforce parts of the law that he viewed as unconstitutional:

Consistent with longstanding constitutional practice, my Administration will interpret and implement the provisions in the Act that purport to direct the Executive to seek to negotiate and enter into particular international agreements…or to take certain positions in international negotiations with respect to international agreements with foreign countries not qualifying for trade authorities procedures…in a manner that does not interfere with my constitutional authority to conduct diplomacy.⁷³

Professor Eugene Kontorovich of Northwestern University, a legal expert on international trade, constitutional law, and the Israeli-Palestinian conflict, disagreed with both Kirby’s and Obama’s assertions. In his testimony to the U.S. House Committee on Oversight and Government Reform (July 28, 2015), he focused on the legal, political, and economic implications of BDS’s economic and legal warfare against Israel. Kontorovich noted that “the U.S. has a long-standing policy of extending Israeli national treatment to Israeli products in disputed territories while not recognizing Israeli claims of sovereignty over these areas.” He stated:

The U.S.-Israeli Free Trade Area Implementation Act of 2005 accords the same treatment to products from all areas under Israeli jurisdiction including those areas beyond the so-called “Green Line”—colloquially called “settlements.” The U.S. approach is in keeping with practices it has with allies and trade partners. For example, the Canada-Israel Free Trade Agreement of 1997 specifically applies “with respect to the Israeli territory where its custom laws are applied,” thus incorporating the territories. Furthermore, there is no basis for thinking U.S. laws, and protections for trade partners, need to be any more limited.⁷⁴

Kontorovich further substantiated his position by pointing to President Clinton’s proclamation in 1996 that the United States treats Israeli products from the West bank as “articles of Israel.”⁷⁵

Regarding the legal implications of President Obama’s signing statement, Kontorovich states:

The actual effect of the signing statement however, is, nil…. Indeed, the hollow signing statement is more a venting of pique—that the Israel provisions were put into a bill too big to veto—than constitutional principle….While the president indeed has a major role in foreign affairs, legislating on issues of “foreign commerce” is a sole power of Congress. All trade laws have significant foreign policy and diplomatic consequences. Where trade and diplomacy conflict, Congress’s specific Foreign Commerce power trumps any vague presidential “diplomacy” power.⁷⁶

Furthermore, Kontorovich asserts, “there is no such principle that Congress cannot legislate with respect to territory under the de facto control of military occupation of another country.” Citing the example of U.S. policy toward Morocco, he correctly notes, “The U.S. authorized foreign aid to Morocco which can be spent in its occupied territory of Western Sahara…. While the policy of the U.S. does not recognize Moroccan sovereignty over West Sahara, no one has suggested it undermines the policy or ‘conflates’ Moroccan settlements with the territory itself.”⁷⁷

The BDS movement’s unrelenting push to delegitimize and demonize Israel continued in 2016, this time involving international governmental agencies. The United Nations Human Rights Council (UNHRC) singled Israel out, demanding the commercial boycott and divestment of companies that conduct business with Israeli entities. The UNHRC’s adopted resolution of March 24, 2016, called for the creation of a database or blacklist of such businesses.⁷⁸

In response to this resolution and in recognition of the broad bipartisan support in both the House and the Senate for fighting a movement seeking to target and harm only Israel, Representatives Roskam and Vargas introduced the Protecting Israel Against Economic Discrimination Act on November 14, 2016. This is a companion bill to Senate legislation (S.3465) introduced by Senators Cardin and Portman on September 29, 2016. Senate 3465 clearly states that

the recent action of UNHRC is reminiscent of a “blacklist” and promoted a primary, as well as a secondary and tertiary boycott against Israel, targeting U.S. and other companies that trade or invest with or in Israel, and is designed to harm Israel, any business operating in, or doing business, with Israel or companies that do business with companies operating in Israel.⁷⁹

In an interview with Algemeiner, Roskam stated:

We were successful [in 2015] in amending the US trade statute to make it a stated trading objective of the United States to push back against BDS. But now some of the activity has moved to these international governmental organizations, and this bill is basically a technical fix to address where the debate has shifted to…. It more broadly defines what boycott, divestment and sanctions against Israel means, to include international governmental organizations that fall out of the typical categories.⁸⁰

The proposed measure aimed to expand the protections of the Export Administration Act, which prohibits U.S. companies from participating in boycotts against Israel called for by foreign states, to boycotts called for by international governmental organizations. In addition, the proposed act amended the Export-Import Bank Act of 1945 to prohibit the bank from using dollars to finance companies engaged in politically motivated boycotts. Specifically, the bank would be prohibited from providing financing to entities attempting to penalize or restrict commercial activity with Israel.

Roskam and Vargas emphasized that “U.S. taxpayer-backed financing should not be available to those who choose to conduct economic warfare against Israel.” Tyler Stapleton, deputy director of the Foundation for the Defense of Democracies, noted that “these measures do not directly impede NGOs from engaging in BDS, but they do begin to form a protective shield for the U.S. and its allies against politically-motivated boycotts. In countering economic warfare against Washington and its allies, they are a step in the right direction.”⁸¹

The Combating BDS Act of 2016, the third congressional effort, also clearly specifies the danger of BDS and growing anti-Semitism while paving the way for legally protecting state and local governments, which are increasingly active in promoting anti-BDS policies, resolutions, laws, and executive orders. This act proved critical in providing governors and state legislators with the legal protection and authority to support anti-BDS legislation at the state, local, and municipal levels.

Introduced by Senator Mark Kirk (R-IL) and Congressman Robert Dold (D-IL) and cosponsored by Senator Joe Manchin (D-WV) and Congressman Vargas, the bill authorized state and local governments in the United States to combat economic warfare against Israel by adopting and enforcing measures to divest their assets from, or prohibit investment of their assets in any entity that “engages in a commerce or investment-related boycott, divestment, or sanctions activity targeting Israel.”

Kirk and Dold argue that “opponents of Israel are increasingly using BDS as a hateful weapon to delegitimize the Jewish state and those who stand with Israel.”⁸² Similar to previous state-based efforts to divest from companies doing business with Iran, the bill aims to strengthen the role of state and local governments in fighting BDS and offers them legal and financial protection when they do.

The bill encourages state and local opposition to BDS by protecting state and local governments from lawsuits alleging that they are unreasonably burdening or discriminating against interstate foreign commerce. The measure requires all state and local actions to be based on “credible information available to the public.” The bill further assists the growing number of states developing anti-BDS measures through the doctrine of no preemption. Thus the Combating BDS Act provides federal protection to prevent a possible conflict of interest over what constitutes federal versus state legislative authority. This measure provides no-preemption safe-harbor status for asset managers, giving states an offensive capability against entities seeking to economically damage Israel.

Once again there was significant pushback against this legislation. Senator Kirk attempted to introduce the measure in June 2016 but was met with resistance by Senators Leahy (D-VT) and Brown (D-OH), both of whom rejected the measure based on its definition of “Israel-occupied territories” as part of Israel. Leahy continued to oppose the measure after Brown ceased his opposition, even though he had approved such language in previous votes. He was accompanied by Senators Diane Feinstein (CA), Dick Durbin (IL), Jack Reed (RI), Tom Udall (NM), Jeanne Shaneen (NH), Jeff Merkley (OR), Brian Schatz (HI), and Tammy Baldwin (WI).⁸³

The clear division among Democrats on this measure suggests less than optimal “bipartisan” support for it. Amnon Cavari and Elon Nyer examine this division of support for Israel.⁸⁴ They find that “while the unique bipartisan support for Israel continues in Congress, there is at the same time a lack of cooperation between the parties and within the Democratic party in expressing this support,” a development they call “congressional dysergia.” Thus, while both parties agree on American support for Israel, Cavari and Nyer found more partisan resolutions in which Republicans demonstrated a hawkish approach toward the region, underlining Israel’s right to defend its sovereignty and citizens and to use all means necessary to confront and eliminate nuclear threats posed by the Islamic Republic of Iran, while Democrats emphasized the need to resume peace talks and protect human and civil rights. The authors conclude that Israel is becoming a central issue in congressional debates and that conventional divisions are starting to affect support for Israel. They suggest that the parties’ divergence in their actions toward Israel could generate tensions between the branches of government over U.S. policy toward Israel in the future. Further studies of congressional bipartisan voting in support of Israel are needed for a better understanding of political fissures in the pro-Israeli congressional community.

THE ROLE OF GOVERNORS AND STATE LEGISLATURES IN THE ANTI-BDS CAMPAIGN

State, local, and municipal governmental anti-BDS activity shows a high level of success with more than 50 percent of state governments passing some form of anti-BDS legislation.⁸⁵ State governmental anti-BDS legislation and legislation against anti-Semitism has not only proved to be a successful effort but suggests that there are specific political, economic, social, and religious variables at work at the state level that make the state arena more effective than the federal one with regard to this issue. These factors include:

1. Intense political polarization in federal politics impedes compromise as well as slows down the passage of a bill. In contrast, at the state level anti-BDS legislation and cooperation with Israel are widely supported and bipartisan support by state legislators is the norm.
2. State anti-BDS legislation most often is triggered by a specific BDS or anti-Semitic incident that receives significant state and local news coverage over an extended time. These “real-time” trigger incidents (e.g., anti-Israeli and anti-Zionist rallies on state university campuses that go far beyond criticism of policies; desecration of synagogues, cemeteries, and other religious institutions; bomb scares at Jewish community centers) have an immediate impact on home-state politics and are regularly covered on the local nightly news and in local newspapers. News coverage of trigger incidents most often expresses moral outrage and a call for unity in addition to providing information. This contrasts with the more global and esoteric legal debates in Congress over BDS and/or anti-Semitism, which for the most part do not receive national news coverage.
3. Community responses to such trigger incidents are less partisan at the state level; local communities view such incidents as an issue of hate and discrimination rather than a Democratic versus Republican issue. The immediacy with which these incidents are experienced by voters in neighborhoods large and small fosters the feeling that hate and discrimination undermine everyone’s security as well as the fabric of daily life. This response helps promote bipartisan cooperation among politicians and a sense of neighborly solidarity among residents.
4. Governors and state legislators have developed deep and long-term relationships with Israel and its supporters within states. Anti-BDS legislation reflects this relationship in detailed expressions of shared values of pluralism, tolerance, liberty, and individualism.
5. Strong state and local faith-based communal relations remain consistently active and mobilized over time as opposed to short-term lobbying of Congress with regard to one or two specific legislative actions.
6. Judeo-Christian cultural values tend to positively affect state and local politics with regard to Israel or anti-Semitism even in states with small or minuscule Jewish populations.
7. Individual state governments have developed extensive partnerships and cooperative relations between their state and Israel in areas having nothing to do with BDS or anti-Semitism. These areas of cooperation include trade and commerce, climate, higher-education partnerships, information technology, medical innovation, national security, counterterrorism, and water policies.
8. The Jewish communal organizational framework and networks throughout the United States serve not only Jews and Jewish interests but those of all faiths and ethnic groups in an effort to promote the public good. Services provided include daily soup kitchens, medical and legal services, family assistance, special-needs educational services, and the distribution of furniture and household goods. In terms of political issues, Jewish communal organizations are committed to advocating on behalf of the public good as well as the specific needs of the Jewish community. These issues include their support for health care, employment concerns, transportation, education, eldercare, advocating for families and children, reducing gun violence, combating domestic violence and sexual harassment, supporting antiracism legislation, promoting environmental concerns, supporting LGBTQ legislation, and reducing income inequality. The skill sets of Jewish organizations in state legislative matters are of the highest caliber as are their political networking abilities. Because Jewish communal organizations are pluralistic and committed to inclusion they serve as excellent allies for many non-Jewish interests, demonstrating a sustained capacity to mobilize supporters outside the Jewish religious and ethnic community when it comes to supporting Israel and fighting bigotry.
9. Governors, state legislatures, municipal leaders, business leaders, academic, medical, and scientific leaders have personally traveled to Israel to better understand this country first-hand as well as to develop partnerships in their respective areas of expertise.

Developments in anti-BDS legislation at the state level reveal the impact of these variables; 26 states have adopted anti-BDS legislation with additional states considering adoption in the future.

The American Jewish Committee, one of many Jewish national defense organizations, has kick-started state governments’ energetic participation in countering BDS propaganda and economic warfare. In 2015 the AJ Committee played a critical role by initiating a nationwide campaign of state governors to take a stand against BDS. Dubbed Governors United Against BDS, the campaign, which was widely publicized, succeeded to enlist the support of all 50 governors and the mayor of the District of Columbia in condemning the BDS movement and affirming that Israel remains a vital U.S. ally and economic partner. In addition, all 50 governors acknowledged that the BDS movement makes a two-state solution more difficult by demonizing, delegitimizing, and isolating Israel, a robust, pluralistic democracy that has extensive commercial ties with the United States. From all parts of America, governors came to stand united in supporting Israel and publicly rejecting the anti-Israeli boycott.

In October 2015 the AJ Committee launched a similar campaign of Mayors United Against Anti-Semitism, inviting U.S. mayors and municipal leaders to sign a statement calling on their European counterparts to publicly address and take action against anti-Semitism in their communities and asserting that anti-Semitism is incompatible with fundamental democratic values. The AJ Committee went on to launch a similar initiative in Europe to garner the support of mayors and municipal leaders. More than 350 U.S. mayors and municipal leaders from all 50 states and the District of Columbia, representing nearly 86 million people, signed the statement along with nearly 200 European mayors from 31 countries representing more than 70 million people.⁸⁶

In 2015 global leaders made clear statements about the dangers of the BDS movement. On November 7, 2015, the Court of Cassation—France’s highest court—outlawed the BDS movement for inciting hatred and discrimination.⁸⁷ Then-Prime Minister Manuel Valls said the fight against anti-Semitism was critical and declared, “The choice was made by the French Revolution in 1789 to recognize Jews as full citizens. If 100,000 Jews leave, France will no longer be France. The French Republic will be judged a failure.” At that time thousands of Jews had begun leaving France for Israel in the wake of terror attacks against the community.

German Chancellor Angela Merkel declared, “Anyone who hits someone wearing skullcaps is hitting us all. Anyone who damages a Jewish gravestone is disgracing our culture. Anyone who attacks synagogues is attacking the foundations of our free society.”

President Obama, speaking at a synagogue in Washington, warned, “In recent years we have seen a deeply disturbing rise in anti-Semitism in parts of the world where it would have seemed unthinkable just a few years ago or decades ago. This is not some passing fad; these are not isolated incidents. And we know from our history they cannot be ignored. When we allow anti-Semitism to take root then our souls are destroyed, and it will spread.”⁸⁸

The AJ Committee’s call to action among governors, mayors, and world leaders helped legitimize the anti-BDS issue globally and set the stage for intense state legislative activity. Citizen groups from all backgrounds were mobilized, and governors and state legislators were keenly aware that a boycott at the state level of companies doing business with Israel would have devastating impacts on a state’s GDP as would divestment of Israeli financial tools from state pension plans, government contracts, and all tax-supported monies related to Israel. State lawmakers understood that doing business with Israel is beneficial to state governments, steady-employment trends, and business interests as well as to Israel. The BDS call for a boycott of these economic interests would result in multiple downturns in a state’s export capacity.

For example, Israel now ranks as Illinois’s eighth leading trade partner. In 2012 Illinois exported over $267,654,091 worth of manufacturing goods to Israel. From 1996 to 2012 Illinois’s exports to Israel totaled more than $3,834,918,432. In July 2011 Assistant Majority Leader of the Illinois House, Jeff Schoenberg, State Senator Ira Silverstein, and Congressmen Jesse Jackson, Jr., and Peter Roskam accompanied then-Governor Pat Quinn to Israel on a goodwill and trade-cooperation mission. The trip resulted in a trade-agreement project between Illinois companies and Israeli companies. Five years later Silverstein and Roskam proved instrumental in developing anti-BDS state and federal legislation.⁸⁹ On May 18, 2015, Illinois’s became the first state legislature to unanimously adopt the landmark anti-BDS legislation utilizing its state retirement-pensions system. New Jersey and Colorado passed similar legislation with swift support from their state legislatures and governors (the bill will be discussed below). Governor Rauner of Illinois became the first state leader to sign the measure on July 23, 2015. In November 2017 he made his first official visit to Israel as governor, meeting with Prime Minister Netanyahu to discuss future economic and cybersecurity cooperation between Illinois and Israel. Illinois’s major universities have similarly entered into cooperative arrangements with Israeli universities on innovation in science, information technology, agriculture, and medicine.

As the BDS movement was gaining a following among students, trade unions, and social justice groups, mainstream Jewish and pro-Israeli groups operationalized their activities with regard to five pragmatic political questions that a successful campaign needs to consider as it organizes for increased effectiveness in state and local politics:

1. Is your political goal to preserve or to overturn the status quo? Preserving the status quo is far easier if supporters of a political goal prevail at every step. Overturning the status quo is much more difficult. In the case of Jewish and pro-Israeli interest-group articulation, the anti-BDS forces sought to maintain the status quo as well as share a common political culture with states and localities. Governors of all 50 states emphasized the extent to which the values of America and their states coincide with the anti-BDS effort whereas they view the BDS principles as antithetical to the values of pluralism, tolerance, and individual liberty. Governors and state legislatures view the BDS movement as promoting anti-Semitism, the delegitimization of Israel, and as undermining the prospects for a two-state solution. American states and their leadership have deep and long-standing relationships with Israel and view BDS as a political voice aiming to overturn the status quo.

2. Do you have powerful interests supporting or opposing your group’s aim? The Jewish and pro-Israeli forces have established strong support networks over many years through communal, faith-based, Zionist, and Jewish-defense organizations including the American Jewish Committee, the Jewish Federations of North America, the Anti-Defamation League, AIPAC, state and regional Jewish Community Relations Councils, Hillel, Chabad, the Israel Project, the Israel Alliance, StandWithUs, and the Academic Engagement Network, which have mobilized in various ways resulting in 25 states adopting some form of anti-BDS legislation.

   Essential to the passing of state anti-BDS legislation is the strong support from the pro-Israeli Christian-community groups including CUFI (Christians United for Israel) with 2.8 million supporters, Proclaiming Justice to the Nations (PTJN), United with Israel with three million supporters, the Christian Allies Conference, the Christian Empowerment Council, and the Church4Israel organization in Alabama. These well-established organizations have helped clarify issues, educate communities, and have worked directly with state legislators in the writing of legislation; mobilized public support; and lobbied in their state capitals on behalf of Israel and security for Jews worldwide.

   At the same time, BDS activists also have support from well-established organizations including the American Civil Liberties Union (ACLU), the Center for Constitutional Rights, the National Lawyers Guild, Students for Justice in Palestine (SJP), state and local pro-BDS chapters, as well as progressive grassroots BDS supporters such as Jewish Voice for Peace, the Council on American-Islamic Relations (CAIR), several state employee unions, and the Muslim Public Affairs Council. In other words, anti-BDS legislative efforts have faced both strong supporting interests and strong opposition.

3. Do you have expert legal advisers assisting you at the state level? The answer for the anti-BDS endeavor is a resounding yes.

   Legal expertise from all segments of the pro-Israeli legal community is essential to the passage of state and federal anti-BDS legislation. Experts assist in writing and researching legislation as well as providing the legal response to BDS efforts aimed at blocking legislation. Legal expertise in promoting congressional and state legislation has been provided by Kenneth Marcus, former president of the Louis D. Brandeis Center for Human Rights Under Law; Professor Alan Dershowitz of Harvard University Law School; Professor Eugene Kontorovich of Northwestern University’s Pritzker School of Law; Professor Steven Resnikoff of the DePaul University Law School Center for Jewish Law and Judaic Studies; the International Legal Forum; the Lawfare Project; StandWithUs; the American Center for Law and Justice; and the Zionist Organization of America. Chief Counsel of the American Center for Law and Justice, Jay Sekulow, presented the case for defeating BDS propaganda at the United Nations in May 2016 to an audience of more than 2,000 attendees. It is worth working with the American Legislative Exchange Council (ALEC), an organization of almost 2,000 members of state legislatures representing all 50 states; they are attempting to create a national model for state legislation that they will introduce in all state capitals. On the local level the American Center for Law and Justice (ACLJ) has worked to gain the support of the town of Hempstead, Long Island, for passing anti-BDS legislation (discussed below).

4. Does your interest group understand how events abroad rapidly affect political advocacy and most often require adjustments or alterations of strategies and tactics to fit evolving political circumstances? Both Jewish communal groups and Israel supporters are able to adjust to evolving political circumstances. Perhaps their most successful strategic approach involves having several clear models for anti-BDS legislation whereas the BDS movement has a “one size fits all” template. This permits the anti-BDS activists to use different negotiating skills to fit the type of legislation state lawmakers advocate in each state. In contrast, the BDS supporters seek one outcome: to challenge anti-BDS legislation on the ground that it violates the First Amendment guarantee of free speech as well as the right to boycott, which, they argue, is essential to the right of free speech. This approach limits their capacity to respond to changing circumstances.
5. Is your interest group capable of responding to demographic changes that can have either positive or negative effects on political advocacy? The answer to this pragmatic question may be “perhaps,” but the Jewish and pro-Israeli community will face real challenges, as they openly recognize. The American Jewish community is very small and likely to decrease further by 2050. It currently constitutes about 2 percent of the American population. It is aging, and except for parts of the Orthodox community, its members are marrying later in life and having fewer children. The issue of Israel is not as deeply shared among American Jews as it was in previous generations. There are general differences as well as significant political cleavages within the community concerning both Israeli religious and political issues. At the same time, Israel is no longer the same nascent nation of 70 years ago. It has evolved into a major player in global economics and politics; a leader in information technology, intelligence, science, medicine, pharmacology, water resources, and military expertise.

Irrespective of efforts by the BDS movement to isolate Israel from trade, commerce, and cultural exchanges, Israel is becoming a significant actor outside of the Middle East. Educating the American Jewish community about these new political partnerships is critical for our future advocacy in state and national politics. In their latest report to the Jewish People Policy Institute, presented to the Israeli cabinet on June 28, 2015, Stuart Eizenstat and Dennis Ross discussed Israel’s important and creative relations with China and India, which are home to 40 percent of humankind. They noted that neither country has any history of anti-Semitism. China views Israel as a high-tech mecca and its trade relations and investments in Israel are growing rapidly.

Relations between Israel and India are likewise expanding steadily, particularly since the election of Prime Minister Narendra Modi. In November 2016 Israeli President Reuven Rivlin traveled to India with a large delegation of businessmen and academics aiming to strengthen bilateral ties. Israel is developing its relationship with Africa as well. Largely in light of the increasing threat from radical Islamist terror groups in Nigeria, Cameroon, Niger, and Chad, Israel is being called upon for its counterterror expertise and to assist with intelligence and technology. Guinea has recently reestablished diplomatic ties with Israel, and Chad is moving in the same direction.

As American Jewish demography changes, maintaining strong alliances with present allies must be accompanied by the development of new interest-group allies such as the Chinese American, Indian American, and African American communities. It will also require established Jewish organizations to develop new outreach programs and expand their knowledge base about the changing geopolitics that affect Israel. If American Jewry can adapt to the demographic projections for the near future, the Jewish and pro-Israeli interest groups will be able to sustain their role in political advocacy.

Turning to the 26 states that have already adopted anti-BDS legislation, we can see the impact of the answers to these five pragmatic questions.

As of November 2018, the following states had adopted anti-BDS legislation:⁹⁰

Tennessee (2015)

South Carolina (2015)

Illinois (2015)

Alabama (2016)

Colorado (2016)

Indiana (2016)

Florida (2016)

Virginia (2016)

Arizona (2016)

Georgia (2016)

Iowa (2016)

New York (2016)

New Jersey (2016)

California (2016)

Pennsylvania (2016)

Ohio (2016)

Michigan (2017)

Texas (2017)

Minnesota (2017)

Nevada (2017)

Kansas (2017)

North Carolina (2017)

Maryland (2017)

Wisconsin (2017)

Louisiana (2018)

Kentucky (2018)

Presently there are two models of state anti-BDS legislation. The first was developed by the Jewish People Policy Institute in 2017, the second by the Congressional Research Service also in that year.

According to the Jewish People Policy Institute’s model, there are four categories of state anti-BDS legislation:

1. Binding and punitive legislation prohibits the state from entering into contracts with companies that boycott Israel or divest from it. States adopting this category include Illinois, Colorado, Indiana, Florida, Arizona, Georgia, Iowa, New York, California, Pennsylvania, Ohio, Texas, Minnesota, Kansas, North Carolina, Maryland, Wisconsin, and Louisiana.
2. Another kind of binding and punitive legislation divests state pension funds from companies that divest from Israel. States adopting this category include Illinois, Colorado, and New Jersey.
3. Generic binding and punitive legislation does not mention Israel specifically. It is antidiscrimination legislation aimed at those who boycott American allies and trade partners by barring the state from entering into contracts with any entity that boycotts “based on race, color, religion, gender, or national origin.” States adopting this category include South Carolina and Alabama.
4. Nonbinding and declarative legislation refers to anti-BDS resolutions that express support for Israel and condemn the BDS movement without taking concrete action. States adopting this model include Virginia and Tennessee.

The model developed by the Congressional Research Service includes three categories of anti-BDS legislation:⁹¹

1. Investment-focused legislation comprises laws that appear to require state investment vehicles to divest from or avoid investing in companies that—as specified variously in each state’s legislation—are characterized as engaging in, potentially engaging in, or advocating economic measures antithetical to Israel. States adopting this category include Illinois, Florida, Indiana, Iowa, Arizona, New York, Minnesota, and Nevada.
2. Contracting-focused legislation refers to laws that appear to prohibit entities from transacting business with entities that—as specified variously in each state’s legislation—are characterized as engaging in, potentially engaging in, or advocating economic measures antithetical to Israel. States adopting this category include Illinois, Colorado, Arizona, Florida, New York, Nevada, New Jersey, California, Pennsylvania, Ohio, Texas, Nevada, Kansas, North Carolina, Maryland, Wisconsin, and Louisiana.
3. Differentiation legislation. Differentiation refers to legislative measures that differentiate between Israel in general and entities linked with Israeli developed areas and settlements (whose legality is questioned in some international legal circles). Debates are ongoing in United States and in the European Union as to whether items produced outside of Israel proper should be labeled as such on their packaging. The European Union asserts that it does not support the boycott of Israeli goods but supports labeling or “differentiating” items produced within Israel from those produced in the settlements, which it considers illegal. According to this stance, the consumer can make a clear choice based on identifiable labeling in the marketplace. This has fueled debate about whether the EU’s guidelines may constitute, encourage, or foreshadow punitive economic measures against Israel.

In addition to state anti-BDS legislation, several municipalities and cities have also adopted their own anti-BDS legislation. At this level of government, municipal and city officials have played a strong and effective role in counteracting the BDS propaganda war. In some cases this level of government has been more effective than the federal government because of the extent to which trigger incidents and the political culture of local government lead to pragmatic solutions that address the concerns of a community.

Town Supervisor Anthony Santino announced that the town of Hempstead, Long Island, would be among the first municipalities in New York to consider and support legislation that would prohibit town governments from doing business with individuals and companies that openly boycott the United States, Israel, and other allies. Joined by the Five Towns business owners, local rabbis, and other religious leaders, Santino referred to the BDS movement “as an ugly term for anti-Semitism…. Our free market is the foundation of a strong democratic society, but we cannot in good conscience stand with businesses that are hostile to America and Israel as well as other allies…. Standing against the BDS movement is a key step in the fight against bigotry, anti-Semitism and acts of hatred.” The measure passed by unanimous vote.⁹²

In 2015 the City of Chicago as well as the Cook County Board of Commissioners unanimously adopted resolutions urging the Municipal Employees’ Annuity and Benefit Fund of Chicago to divest from foreign companies seeking to economically and politically harm Israel. These resolutions were modeled after the state of Illinois’s anti-BDS legislation. The Jewish Federation of Metro Chicago’s Office of Government Affairs was instrumental in working on these resolutions with Mayor Rahm Emanuel and in developing fact sheets for supporters.⁹³

The municipality of Bal Harbour Village in Florida also unanimously adopted an anti-BDS ordinance stating that “the BDS movement is a global propaganda campaign against Israel that serves as a thin cover for anti-Semitism—the levels of which have not been seen for over 60 years.” The ordinance required any entity that entered into a contract with Bal Harbour to certify that they were not boycotting and would not boycott or divest from a legitimate, recognized U.S. trade partner. Bal Harbour seeks to protect the economic and social interests of the citizens who reside there and who reject discriminatory business practices, especially when they are funded in any way by taxpayer money.⁹⁴

In December 2017 the mayor of Bal Harbour, Gabriel Groisman, wrote and steered the passage of the Anti-Semitism Definition Act, making Bal Harbour the first city government in the United States to codify a uniform definition of anti-Semitism. This act not only helps fight hatred and discrimination against Jews but specifically permits law enforcement to consider anti-Semitism as a motivation for criminal offenses, thereby ensuring the safety and well-being of the local Jewish community. Mayor Groisman stated that what inspired him to promote this new act was an anti-Semitic incident in Miami. This event, he said,

opened my eyes to the difficulty of American enforcement in identifying and intervening against this type of hatred. Police had no idea what BDS was nor of anti-Semitism crimes involving business activities and connections with Israel. How could law enforcement intervene without any precise definition of this crime of hatred? So I realized that we would have to define the crime of anti-Semitism and provide the police with an executive tool to fight it directly. In 2016 the federal government tried to pass a similar law but without success. However, the state of South Carolina did pass an act defining the crime of anti-Semitism. I based my actions on the South Carolina definition and converted it into a good city ordinance.⁹⁵

On May 22, 2016, the City of Beverly Hills, California, officially endorsed the California anti-BDS legislation. The mayor together with the Israeli-American Nexus (IAX) worked with the town to put it on record that the IAX was continuing to work with state and local officials in California to pass the country’s most effective anti-BDS legislation and forge strategic partnerships with Israel.⁹⁶

On June 2, 2017, the Town of Oyster Bay, Long Island, adopted anti-BDS legislation. Under the leadership of Town Supervisor Joseph Saladino, the town board unanimously approved legislation requiring individuals or companies seeking to do business with the town to submit a certification that they did not engage in boycotts of the United States and its allies, which include Israel, NATO-member nations, signatories of the Southeast Asia Treaty Organization, signatories of the Rio Treaty of 1947 (excluding Venezuela), Ireland, Japan, and the Republic of Korea. Individuals and companies must pledge not to engage in a boycott for the duration of the contract, and any such violations of this law can result in the town rescinding a contract and seeking reliance damages based on the signed certification not being honored. Support for this legislation was triggered by incidents targeting the Jewish population of Plainview, a hamlet within Oyster Bay. Organized supporters of the measure included Jewish faith-based community leaders as well as the Korean American Public Affairs Committee.⁹⁷

CONCLUSION

This research has examined both the BDS movement and the anti-BDS campaign, arguing that both efforts have achieved “success” in very different ways. Their conceptualizations and political actualizations define “success” differently, and thus their respective methodologies, strategies, and institutional models served as a portrait of two competing movements with high stakes in a polarized political world.

For almost 20 years the BDS movement has succeeded in its propaganda war using techniques that successfully demonized, delegitimized, and denounced Israel, Zionism, world Jewry, and America. The BDS movement has been able to penetrate global political conversations, which, while not resulting in the creation of a Palestinian state or the delivery of tangible improvements to suffering civilians, has successfully painted a portrait of Israel and its supporters as deserving delegitimization and isolation on the world stage. Specifically helpful to its campaign is its use of social justice models and simplistic binary concepts that divide the world into oppressors and oppressed people and nations, and into moral and immoral actors. BDS models and conceptualizations facilitate grassroots mobilization and “intersectionality” while discouraging opposing viewpoints, historical context, and factual information. Whatever this movement’s intent, this research has clarified the extent to which its tactics have increased dangerous attacks, intimidation, and harassment of Jews and Israel supporters particularly on college and university campuses.

The anti-BDS campaign in American politics, which began 15 years ago, has been successful at the federal level and extremely successful at the state, local, and municipal levels of government. With Governor Matt Bevin of Kentucky signing the latest state anti-BDS legislation making it the 26^th state to do so, more than 50 percent of state governments have taken an official stand against the BDS movement; against anti-Semitism; against a politics of hatred, fear, and intimidation; and for continued support of Israel and its right to self-defense. The anti-BDS effort is active for the long term and additional states can be expected to support it over time. Each state’s anti-BDS legislation, irrespective of the form it has taken, has expressed its rejection of the BDS movement for its opposition to the state’s democratic, pluralistic, and inclusionary political values. Several of the state anti-BDS laws specifically employ a definition of anti-Semitism that can give law enforcement professionals the tools to arrest and prosecute offenders as well as ensure the safety of the targeted population. Similarly, with anti-Semitic incidents increasing on college and university campuses, a growing number of state anti-BDS laws employ the Department of Education’s definition of “hostile environment” as an “environment created when harassment is sufficiently serious to deny or limit a student’s ability to participate in or benefit from a school’s education program.” Thus the anti-BDS legislative campaign has resulted in specific legislation as well as movement toward policy development, policy implementation, and policy evaluation with regard to the latest iterations of anti-Semitism.

Supporters of BDS are shocked and displeased at the growth of legislation directed at their movement, arguing that such legislation is a violation of their First Amendment rights and an overreaction to what they claim is mere “criticism” of Israel and Zionism. While the BDS movement continues to invest huge resources and energy in ensuring that dialogue and cooperation with pro-Israeli groups is prohibited, they simultaneously continue to make legal arguments that their freedom and rights are being violated. Thus we can expect ongoing heated debates and legal challenges regarding what does or does not constitute anti-Semitism in a given context as well as what rights are and are not covered by the First Amendment. Lawmakers, politicians, legal experts, and academics will be involved in both short- and long-term efforts to deal with these challenges.

The BDS movement is in it for the long haul, and college and university campuses will remain key targets for their rallies, boycotts, and student-government referendums. Nevertheless, all levels of higher-education personnel, student-life personnel, and professors remain unprepared to respond meaningfully to incidents or to accusations of anti-Semitism/anti-Zionism, to the fears of Jewish and pro-Israeli students on campus, or to claims about a hostile environment being fomented. Based on the recent developments at the University of Michigan and the University of Illinois, it is clear that “no response,” “symbolic response,” and lightweight responses will no longer suffice. Just as institutions have provided learning modules to teach what constitutes sexual harassment, racism, and homophobia, higher-education institutions must provide learning modules on what constitutes anti-Semitism in speech, written work, and behavior. No student in the United States, irrespective of background, should fear harassment, intimidation, exclusion, or marginalization at a college or university.

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Notes