Palestine and the First Amendment in the US: A Victory for the Boycott, Divestment and Sanctions in Arizona

On Friday, March 17, I reached an agreement with the Arizona State University (ASU), the Arizona Board of Regents, and Arizona Attorney General that will allow a speaking event focusing on BDS to take place on April 3, 2018 on campus. The agreement is a victory for “the Boycott, Divestment, and Sanctions (BDS) movement since the speaking contract previously included an unconstitutional anti-BDS clause” that prohibited me from speaking on a boycott of Israel during my ASU’s campus visit.

The agreement with the Arizona State University is a victory for the First Amendment and the rights of free speech. Again, the pro-Israel forces worked hard to silence the voices of justice and human rights but hard work and dedication made the difference. This is a victory for the BDS movement and a victory for Palestine’s voice in the US. I am deeply indebted to CAIR’s hard work that will make it possible for me to exercise the rights enshrined in the First Amendment, the right to speak at the Arizona State University on BDS and to oppose the Israeli Apartheid! This success was made possible through the hard work of CAIR Arizona, CAIR National and AMP’s team on this important legal challenge.

Last month, I received an invitation from the Muslim Student Association to deliver a lecture on Palestine, the current crisis resulting from U.S. decision to move the embassy to Jerusalem, and the effectiveness of the BDS movement at the Arizona State University. As per the regular procedure for such an engagement, the students sent me ASU’s contract detailing all the conditions that must be fulfilled as well as the costs associated with travel, accommodations, and honorarium.

I read the contract and started filling the needed information but stopped as soon as I got down to item 20 on the list of the contractual conditions. Surprisingly, ASU’s contract included the following text for item number 20: “No Boycott of Israel. As required by the Arizona Revised Statutes § 35-393.01, Entity certifies it is not currently engaged in a boycott of Israel and will not engage in a boycott of Israel during the term of this Contract”. This text was added to all ASU and other Arizona State public agencies contracts to adhere to the new law, which, at the root, seeks to protect Israel from the BDS movement.

I stopped filling the contract on a matter of principle. I cannot and will not sign this contract in full conscious being one of the key BDS organizers in the U.S., an academic who writes on BDS, and an activist on Palestine that holds the strategy to be a non-violent human rights’ focused movement to address Israel’s continued violations of the international law. The contractual condition creates an ethical dilemma since it stipulates on individuals to sign a certification that he/she “is not currently engaged in a boycott of Israel and will not engage in a boycott of Israel during the term of this Contract”, something that I cannot do as a pre-condition to being able to speak at a public university on the subject of BDS.

This contractual condition boils down to the ASU and Arizona setting up a prior restraint on speech. “In the First Amendment law, a prior restraint is government action that prohibits speech or another expression before it can take place.”  The government or any power has “two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional”.  Here, the Arizona State University contract included a language that clearly sets-up a prior restraint on my ability to speak about the BDS during my upcoming visit to the campus.

Consequently, and with the help of the Council on American Islamic Relations office in Arizona, I had to challenge the law so as to not accept the prior restraint imposed by the Israel lobby, AIPAC, through its work in the US political system and prevent those points of view that are critical of the ongoing Israeli occupation. I believe that this Arizona regulation and others like it are an attempt by AIPAC, other major Zionist organizations, and Israeli government itself to win an unwinnable cause, to maintain support for an Apartheid State that is constantly violating international laws. The law attempts to defend the indefensible by restricting freedom of speech and academic freedom so as to rescue and protect Israel, and its continued Apartheid and occupation. More critically, the condition and the Arizona Law treats Israel as an exception to the norm. The law restricts free speech that is foundational to the First Amendment and a constitutionally protected right, the ability to ask for public adherence to a call for BDS of a foreign country.

On a national level, the Israel lobby, AIPAC, and all the major mainstream and established Zionist organizations, the JCRC, ADL, ZOA, and AJC, are engaged in a full campaign to restrict free speech on BDS, and curtail criticism of Israel and its continued human rights violations. The attempts at legislation supported by all the major mainstream Zionist organizations is intended to shield Israel from serious criticism and possibly cause the American public to abandon Israel as it did in the past when it chose to divest from South Africa. Here, a heavily Israeli funded and full national campaign is underway to counter the BDS movement. This campaign attempts to use national and state-level legislation, targeting individuals, structured and systematic defamation, as well as working to recruit voices that normalize Zionism among segments of the Arab and Muslim communities through the Shalom Hartman Institute Muslim Leadership Initiative and fictitious interfaith projects that are focused on silencing Palestine.

Israel’s supporters have been the leading agents on restricting free speech and academic freedom on many college campuses by advocating a whole host of civility codes and conflating anti-Semitism with anti-Zionism and criticism of Israel while using the university administrations and administrative regulations to limit the free expression of solidarity with the Palestinians. The cases of San Francisco State University with Professor Rabab Abdulhadi AMED’s program and UC Berkeley in relations to the Palestine course is a case in point where the university administration became part of the strategy to limit pro-Palestine free speech and academic freedom while coordinating these strategies with the local Zionist leadership and, at times, with the SF Israeli consulate, the representative of a foreign state given access and solicited for ideas on how to limit the constitutional rights of American students and professors.

The Israel lobby, AIPAC, and many of its regional affiliates have been doing overtime to push for legislation across the US to restrict free speech on BDS and in some cases to criminalize advocacy for Palestinian human rights. The victory in Arizona is very important and serves as a model to challenge legislation that seeks to protect Israel at the expense of constitutional rights, the right of free speech and freedom of association since considerable demonization and criminalization efforts on college campuses are directed at Students for Justice in Palestine. Israel and its supporters should not have a veto power over the First Amendment and legal challenges should be mounted to expose the efforts of a foreign government and its agents to undermine the rights of citizens to critique a country that is addicted to human rights violations and U.S. foreign aid.  The BDS is out of the bottle and attacking the First Amendment is a battle Israel and its supporters will certainly lose!