The American Civil Liberties Union has evolved into the most powerful legal advocate for the anti-Semitic Israel boycott movement in the United States, a move critics argue undercuts the organization's reputation as an advocate for minorities and other underrepresented groups.
Now, as it prepares to defend that movement before a panel of federal appellate judges next week in a lawsuit against the state of Arkansas, the ACLU is facing fresh scrutiny from state lawmakers and legal experts who argue that the organization sticks up for all sorts of embattled minorities but is now embracing anti-Semitism.
While the ACLU says its advocacy for the Boycott, Divestment, and Sanctions movement is driven by free speech concerns and it "takes no position" on the merits of Israel boycotts, some anti-BDS lawmakers question that motivation.
"The anti-Semitic BDS Hate Movement has no greater asset today than the sophisticated legal support it receives from the American Civil Liberties Union," said Arizona state senator Paul Boyer (R.), who sponsored anti-boycott legislation that was challenged by the ACLU, in a statement to the Washington Free Beacon. "The ACLU’s efforts in this matter showcase a stunning embrace of anti-Jewish bigotry and blatant hypocrisy that all civil libertarians should reject."
The ACLU in 2018 appeared to backtrack from its longtime stance as an unequivocal defender of free speech. The group said it would consider turning down cases that "undermine relationships with allies or coalition partners," "create distrust with particular communities," or "directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners."
These concerns have not deterred the ACLU from defending the BDS movement, which has been described as anti-Semitic by major Jewish organizations and the U.S. State Department. The organization has led legal challenges against anti-BDS laws in numerous states, including Arkansas, Arizona, Kansas, and Texas. The group has also registered to lobby against federal anti-BDS legislation from 2017 to 2020, according to lobbying disclosure records.
The ACLU did not respond to a request for comment.
The ACLU has "adopted a schizophrenic approach to anti-discrimination laws, challenging those laws meant to protect Jewish Americans" while "defending all other anti-discrimination laws, even those that compel speech that violates the religious beliefs of many Americans," said the Zachor Legal Institute’s Marc Greendorfer, whose group compiled a report outlining the advocacy efforts of the ACLU in recent years.
The Zachor Legal Institute report noted that the ACLU objected to people linking COVID-19 to China last year due to fears that anti-China commentary would lead to hate crimes against Asian Americans.
ACLU deputy legal director Cecillia Wang wrote last year that terms such as "Wuhan virus" could "lead to dangerous scapegoating and widespread ignorance, just when accurate public health information is critically needed" and encourage "racism and overt acts of harassment and violence against Asian Americans."
ACLU staffers have also spoken out in favor of BDS and partnered with BDS activist groups.
Jamil Dakwar, the director of the ACLU’s Human Rights Program, wrote that the boycott of Israel "is not only a constitutionally protected right, but also the right thing to do" in a 2019 Twitter post. He also co-wrote a pro-BDS op-ed for Haaretz in 2016, which argued "Only BDS Can Force Israel to Prove It's a Democracy for Its Arab Citizens Too."
ACLU senior staff attorney Brian Hauss, who has worked on BDS lawsuits for the group, has given speeches to multiple pro-BDS organizations, including a May 2019 event called "The Right to Boycott: BDS & Your Civil Liberties," according to the Zachor Legal Institute. The event was cosponsored by the Samidoun Palestinian Prisoner Solidarity Network, which was designated as a terrorist group by Israel last February, according to the report.
The ACLU also mounted legal challenges against anti-BDS laws in multiple states and drew criticism from lawmakers who support the anti-boycott legislation.
In 2018, the group filed a lawsuit on behalf of the Arkansas Times, challenging an Arkansas law that required government contractors to refrain from boycotts of Israel or face a financial penalty. The lawsuit was dismissed by the lower court, but an appeals court subsequently sided with the ACLU.
The state appealed the ruling, and the case is now scheduled for a hearing on Sept. 22 before the full panel of judges on the Eighth Circuit Court of Appeals—a rare occurrence that could set case law on the BDS movement for years to come, according to legal experts involved in the issue.
Joseph Sabag, executive director of the Israeli American Council’s IAC for Action and one of the architects of state-level anti-BDS laws, called the upcoming decision "the single most important ruling on the matter to date," noting that "this ruling is likely to stand as the highest-level ruling on this issue for some time to come."
Arkansas state representative Jim Dotson (R.) told the Free Beacon that the ACLU "is trying to tear down a law that passed overwhelmingly in Arkansas and most other states because [the laws] protect our economies and our citizens’ quality of life."
"Tolerating the boycott of business with Israel would not just be an economic blow to U.S. citizens, but also a material setback to their everyday wellbeing," Dotson said. "It is critical that trade with Israel be protected from commercial attacks, especially because of the vital economic sectors it covers, such as pharmaceuticals, water desalinization, agriculture, disaster relief, avionics, technology research and development, and all aspects of the health sciences."