As many Jewish groups jump on board a push for laws to penalize businesses and groups boycotting Israel, the Anti-Defamation League, long considered a pillar of the Jewish establishment, is not just standing back — it has been opposing the tide.
And now, it’s taking flack for this.
In a press release calling ADL’s opposition to such legislation “misguided,” the Zionist Organization of America is charging that the Jewish group “has repeatedly harmed anti-BDS efforts by publicly opposing and lobbying against needed anti-BDS laws.”
ADL declined to comment on the ZOA’s June 7 statement. But in its public stands against much of the legislation proposed or already passed into law, the group has cited constitutional concerns about freedom of speech in explaining its position.
“A decision by a private body to boycott Israel, as despicable as it may be, is protected by our Constitution,” declared ADL’s then-national director, Abraham Foxman in a May 2015 opinion piece published by JTA, the Jewish news agency. “Perhaps in Europe, where hate speech laws exist and are acceptable within their own legal frameworks, such bills could be sustained. But not here in America.”
In his opinion piece, Foxman dismissed proposals to enact sanctions against businesses and groups participating in the movement to boycott, divest from or sanction Israel—or BDS, as it is often called—as “a magic wand.”
“The appeal of such legislation is understandable,” Foxman wrote. “It lacks the wishy-washiness of education, lobbying or persuasion.”
But “magic wands,” he said, “are just that —magical…Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down.”
The ZOA recently blasted ADL in two statements, one on their site and one published in the Orthodox Jewish publication Algemeiner.
The ZOA also urged the ADL to revise “its constitutionality views on anti-BDS legislation.”
In the past year, anti-BDS laws have been enacted in nine states: Alabama, Arizona, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, and South Carolina. There have also been efforts to introduce such legislation in Congress.
Jewish groups supporting various of these efforts include the American Israel Public Affairs Committee, the American Jewish Committee, The Israel Project and many local Jewish community relations councils.
Among organizations belonging, like ADL, to the Conference of Presidents of Major American Jewish Organizations, the mainstream communal umbrella group, only one other group, the dovish Americans for Peace Now, has opposed anti-BDS laws.
“My impression is that it’s been pretty much a wall-to-wall consensus,” said Lara Friedman of Americans for Peace Now, referring to her Presidents Conference colleagues.
On June 5, New York Gov. Andrew Cuomo issued the nation’s first executive order against BDS. The order instructs all agencies, commissions, public corporations and funds under his control to divest their investment portfolios of entities deemed to be participating in “boycott, divestment or sanctions activity targeting Israel.”
The order defines participation in such activity to include those who “promote others to engage” in boycott activities—a definition that could encompass even institutions that have merely spoken out in support of boycotting Israel.
Still, ADL’s new national director, Jonathan Greenblatt, who succeeded Foxman last year, has praised Cuomo’s executive order, while continuing to withhold the group’s support from legislative efforts to battle BDS.
ADL has also declined to take a position on narrower economic boycotts, targeting companies operating in the Israeli-occupied West Bank, whose Jewish-only settlements are considered illegal by the international community.
In an interview with the Forward, ZOA national president Morton Klein said that ADL should fully support “Jews living in Judea and Samaria,” using biblical names for the occupied West Bank.
Across the country, as anti-BDS legislation has grown over the last year, ADL has regularly voiced its opposition to the legislative strategy.
In February 2014, ADL opposed a proposed measure to cut federal funding to any U.S. academic institution that endorses boycotts of Israel. “However well-intentioned, we are not sure that this bill would be the most effective means of recourse,” Foxman said at the time.
In March 2014, ADL lobbied against a state anti-BDS bill in Maryland, expressing concern that such anti-BDS measures would “interfere with academic freedom.”
In raising concerns about the constitutionality of anti-BDS legislation, the ADL is seeking to balance its own “twin identities,” said Dov Waxman, a Northeastern University professor and author of “Trouble in the Tribe,” which examines the politics of Israel in the Jewish community.
“The twin aspects of their identity — as a pro-Israel organization and a civil rights organization — sometimes work together in harmony,” Waxman said. “Sometimes there is this tension.”
While the ADL has come to be perceived as almost exclusively a pro-Israel group that battles anti-Semitism, “what we may be seeing is an effort to rebalance,” Waxman said.
The various legislative efforts to clamp down on BDS across the country have been also condemned by civil liberties advocates, along with pro-Palestinian groups.
The website for Palestine Legal, which defends Palestinian free speech rights on campus and elsewhere, has mapped more than 20 “bills aimed at punishing or suppressing” BDS that have been introduced in state legislatures. “These anti-BDS bills/laws are unconstitutional,” the group said.
The New York Civil Liberties Union, which has taken no position on BDS itself, condemned Cuomo’s executive order against the Israel boycott, saying that the order threatens to punish constitutionally protected political speech.
“As the Supreme Court made clear, government can’t penalize people or entities on the basis of their free expression, and political boycotts are a form of free expression,” the New York ACLU said in a statement.
Still, legislative anti-BDS efforts have their supporters.
Eugene Kontorovich, a law professor at Northwestern University’s Pritzker School of Law, who has advised many states on anti-BDS legislation, argues that there is no free speech problem.
“States have a right to refuse to spend their money on what they view as bigoted or improper conduct,” Kontorovich wrote in a Daily News op-ed. “The First Amendment protects speech, not conduct.”
Sam Kestenbaum is a contributing editor and former staff writer for the Forward. Before this, he worked for The New York Times and newsrooms in Sana, Ramallah and Beijing. Contact him at email@example.com and follow him on Twitter at @skestenbaum and on Instagram at @skestenbaum.