Introduced in response to the “BDS Movement,” a growing international campaign of intolerance and bigotry operating under the guise of human rights advocacy, AB 2844 is an important and needed law that will help to protect many Californians from discrimination. AB 2844 would, in essence, prohibit the state from contracting with entities that engage in discriminatory activity, including, but not limited to, discriminatory activity targeting Jews and those of Israeli origin.
Many other states have adopted similar laws and with the thoughtful revisions to AB 2844 that were made through the legislative process, there is no question that AB 2844 passes constitutional muster while also protecting a minority group in California that is under concerted attack.
I have written extensively on the BDS Movement generally and the constitutionality of restrictions on BDS Movement activity in the United States specifically. My most recent paper, “The Inapplicability of First Amendment Protections to BDS Movement Boycotts” was published in the Cardozo Law Review de novo and is available here. This paper demonstrates the constitutionality of AB 2844, especially with regard to First Amendment concerns.
Some of those who oppose anti-BDS laws, and AB 2844 in particular, have argued that BDS activity is subject to the same type of constitutional protections that civil rights boycotts enjoy. Indeed, the initial legal analysis prepared by the legislature for AB 2844 contained this deeply flawed position. However, after a number of constitutional scholars, including my legal foundation, informed the state of its erroneous legal conclusion, the record was corrected and the legislature resumed consideration of AB 2844.
As a legal matter, there is no question that AB 2844 is a common sense, reasonable and permissible state action to combat discrimination, no different from other actions against discriminatory conduct, such as bans on state and local employee travel to states with anti-LGBTQ policies. As a policy matter, there is great urgency in having the State of California take a stand against the increasingly hateful targeting of Jews and Californians of Israeli-descent, and their businesses.
While those who support the BDS Movement claim that it is a rights movement, the truth is that it is nothing more than a revival of the old Arab League boycott against Israel, reinvigorated with a savvy public relations arm and backed by designated terror organizations and sponsors of international hate. The BDS Movement came to life at the behest of, among other state actors, Iran, in a conference that former California Congressman Tom Lantos described as “an anti-American, anti-Israel circus…a transparent attempt to de-legitimize the moral argument for Israel’s existence as a haven for Jews.”