The Folly of Anti-Boycott Laws

Using the power of the purse to punish a point of view

I have trouble shaking annoying partisan jargon from my memory, so when I see the initials "BDS" the first phrase that jumps to my mind is still "Bush Derangement Syndrome." But these days the abbreviation stands for "Boycott, Divestment and Sanctions," a movement to compel Israel, through those forms of economic pressure, into ending the occupations and recognizing a Palestinian right of return. Last year the American Studies Association (ASA) adopted a resolution to join the boycott—or, more exactly, a watered-down version of the boycott that in the words of one BDS opponent is "unlikely to affect almost anyone."

Now a bill has passed the New York state Senate, and has a good chance of passing the House, that is explicitly intended to punish the ASA for that resolution. To quote the legislation, the measure

would prohibit any college from using state aid to fund an academic entity, to provide funds for membership in an academic entity, or fund travel or lodging for any employee to attend any meeting of such academic entity if that academic entity has undertaken an official action boycotting certain countries or their higher education institutions.

The full text includes some exceptions to the ban (*), but that's the basic outline. (Libertarians should note that this is not going to reduce government outlays: the idea isn't to spend less money, it's to use the threat of cutting off funds to bring the boycotters into line. At most you'll see universities distributing their dollars differently.) A similar bill has been proposed in Maryland, and more may be on the way in other states.

The ASA's resolution is the sort of puffed-up symbolic politics that makes me roll my eyes. But these proposed laws are worse, because they use the state's power of the purse to penalize people for their political stances, a clear First Amendment no-no. An academic association has the right to take whatever positions it pleases; its members and others who interact with it are free then either to join in, to withdraw their support, or to hold their nose and carry on as before. What the critics shouldn't do is ask the government to put its thumb on the scales.

(* The exceptions permit funds to flow to a group if its boycott is "connected with a labor dispute," if the boycott involves a college in "a foreign country that is a state sponsor of terrorism," or if the boycott is "for the purpose of protesting unlawful discriminatory practices as determined by the laws, rules or regulations of this state." The way that last clause was worded prompted a blogger at the Albany Times Union to ask: "Does Israel's treatment of Palestinians comport with New York State law? To be sure, it would make an interesting lawsuit.")