[Five years ago, the New Jersey State legislature enacted a measure punishing firms that boycotted Israel or Israeli companies. The bill, S1923, was vigorously opposed by Jewish Voice for Peace of Northern New Jersey, NJ Peace Action, and other organizations supporting Palestinian rights. The ACLU of NJ criticized the bill, a revised bill, and the final law for its infringement on constitutional rights, specifically for violating the First Amendment by punishing people for what they say and believe. The State’s largest newspaper, the Newark Star-Ledger, issued a stinging rebuke of the bill, commenting that “If it sounds more like the McCarthy hearings of the 1950’s than a message against ‘veiled discrimination,’ that’s because it is.”
In July 2021, Ben & Jerry’s announced (link not working as of May 2023) that it would no longer sell its ice cream in the Occupied Palestinian Territories: “We’re a values-led company with a long history of advocating for human rights, and economic and social justice. We believe it is inconsistent with our values for our product to be present within an internationally recognised illegal occupation.”
Supporters of Israeli oppression of Palestinians immediately rushed to condemn Ben Cohen and Jerry Greenfield for being antisemitic. And the State of New Jersey declared that in compliance with its law it would withdraw $182 million of state funds invested in Unilever, the parent company of Ben & Jerry’s.
Predictably, the Jewish Federations of New Jersey welcomed the State’s plan to divest from Unilever. Sadly, the original anti-boycott bill was championed by liberal icon Loretta Weinberg and passed overwhelmingly by New Jersey’s Democratic-controlled legislature.
Below we reprint from 2016 an op-ed written for The Record by Stephen Shalom, a member of JVP of Northern NJ, arguing against passage of the bill.]
Divestment measure: Against
S1923 violates the First Amendment, exacerbates intolerance and aligns itself against the cause of human rights.
A MEASURE prohibiting the investment of state pension funds in companies that boycott Israel or Israeli businesses was adopted by the state Senate 39-0 earlier this month. The bill, S1923, is an affront to human rights and to the First Amendment.
There are those who advocate boycotts, divestment and sanctions as a way to press for changes in Israeli government policies that they believe oppress Palestinians. People engage in all sorts of nonviolent activities designed to encourage or discourage
particular government policies — usually this is called civic responsibility. But in this instance such activity is to be penalized.
The bill states that boycotts “should be opposed as an impairment to the soundness of commercial contracting performance.” But such a view would have prohibited the boycott of South Africa during apartheid or of Sudan during the massacres in Darfur. Business interests should not be all that matters, especially when it comes to human rights issues.
S1923 prohibits investment in any company that “boycotts companies operating in Israel or Israeli-controlled territory.” Thus, the bill would penalize anyone who didn’t want to do business with Israeli companies operating in the Occupied Palestinian Territories. So a U.S. company that heeded the call of Human Rights Watch for corporations to cease their complicity in violations of international law in the occupied territories would be penalized.
When Human Rights Watch called on companies to stop supporting human rights violations by purchasing diamonds from Zimbabwe or oil products from Sudan, human rights defenders cheered. But when it makes similar recommendations regarding Israel, the authors of S1923 would punish any who wish to comply.
There are of course millions of companies that don’t do business with Israel. So how will it be determined which of these are boycotting Israel? The bill defines “boycott” as “engaging in actions that are politically motivated.” But this means that S1923 is denying benefits to some not based on their actions, but on their political motivations. For the government to penalize a person or company based on political motivation violates basic First Amendment rights.
Protected action
Imagine if a Republican Legislature passed a law saying that the state could only invest funds in companies whose officers agreed with the GOP platform. Clearly that would be improper. Moreover, the Supreme Court recognized boycotts as a First Amendment-protected form of political speech in NAACP v. Claiborne Hardware Co.
This bill will also contribute to anti-Arab and anti-Muslim bigotry. Not so long ago, some Jews chose not to buy Volkswagens because of past German crimes. They had every right to do this, and no one investigated them for it. But if Palestinian-American-owned companies feel uncomfortable buying from Israel because they believe it is engaging in the oppression of Palestinians, S1923 would authorize examining their motives and punishing them.
S1923 doesn’t just penalize those companies boycotting Israel, but those boycotting Israeli companies. So if a socially responsible investment firm chose not to invest in weapons manufacturers and some of the weapons manufacturers in which it chose not to invest were Israeli, then it would be subject to this bill.
Distinctions
Supporters of the bill might say, no, this socially responsible investment firm is not subject to S1923 since its refusal to invest in an Israeli arms manufacturer is not because the company is Israeli, but because it’s an arms manufacturer. But those who support boycotts of Israeli companies say the same thing: Their refusal to invest in Israeli companies is not because those companies are Israeli, but because they contribute in some way to violations of international law or human rights.
Presumably, the sponsors of this bill have no problem with investing so as to avoid tobacco, guns, hydrocarbons or blood diamonds — those are all fine. The only thing they won’t permit is screening investments so as to avoid supporting Israel’s continued oppression of Palestinians.
If having the state assess our political motivations isn’t problem enough, the bill provides that the state’s efforts to identify boycotters shall include “retaining an independent research firm to identify companies that boycott Israel.” Do we really want to start establishing databases of companies’ political views in order to blacklist them from public funds?
S1923 violates the First Amendment, exacerbates intolerance, and aligns itself against the cause of human rights. It is a bill that every New Jerseyan ought to oppose. And a bill the Assembly ought to decisively defeat.
Author Stephen R. Shalom is a member of Jewish Voice for Peace of Northern New Jersey and teaches political science at William Paterson University.