Massachusetts Anti-BDS Bill is Confusing because it is Incoherent

Anti-BDS Bill Hearing, July 18, 2017
Anti-BDS Bill Hearing, July 18, 2017

Testimony presented at hearing on Anti-BDS Legislation, S.1689/H.1685, July 18, 2017

Susan NicholsonMy name is Susan Nicholson. I’m a retired attorney from Ropes & Gray in Boston, where I practiced in the health law group.

I heard a member of this Committee say the bill is “very complicated.” That’s true, it is complicated. But that’s because the bill is incoherent. 

Let me explain what I mean.

I heard Rep. Steven Howitt, one of the filers of the bill, testify today. He said – and I wrote this down – “This bill is not about Israel or BDS.”

But this is what Rep. Howitt said back in January, when the bill was filed: “This bill  clarifies to businesses that either support BDS or who boycott Israeli-owned business and products that the Commonwealth of Massachusetts will not do business with them.” (JCRC statement 1/20/17, quoting Rep. Howitt). Keep in mind this is what Rep. Howitt said about this bill, not the amendment filed last summer. 

Now either this bill is about BDS, or it isn’t.  It can’t be both.

The same incoherence shows up in what JCRC – the drafter of the bill – says about it. 

Just last Friday JCRC wrote that the bill does not restrict the right to freedom of expression, “including boycotting Israel.” But JCRC’s 1-page explanation of the bill says: “This bill would extend to the Boycott, Divestment and Sanctions (“BDS”) movement against Israel.”

These 2 statements are flat-out inconsistent.  They cannot both be true.

This bill is not ready for prime time, because its proponents can’t make up their minds what the bill is about.

Now it’s understandable why the bill’s proponents are reluctant to say this bill is about BDS.  If it is about BDS, they lose the argument. Any attempt to suppress BDS violates the First Amendment.  That’s indisputable. And let’s be clear.  It’s not just unconstitutional to prohibit BDS – it’s also unconstitutional to deny someone a state contract because they’re engaging in BDS.

Most recently, JCRC writes that the bill applies “when participation in a boycott crosses the line and starts targeting individuals based on who they are and what they cannot change.” Where is that line? I haven’t heard a clear explanation.  I have heard many people today testify that they are afraid of being discriminated against here in Massachusetts because they are Israeli. We are all against that kind of discrimination. But there are laws here in Massachusetts to prevent it. 

In conclusion, this bill is either unconstitutional, or it is unnecessary.  Either way, it should not be allowed to proceed.

Thank you.