Berkshires debate: Does anti-discrimination bill violate freedom of speech?

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A proposed law in the Statehouse is generating controversy in the Berkshires.

The bill would require any entity that wishes to enter into a contract of over $10,000 with the Commonwealth of Massachusetts to sign a certification that says it complies with a number of Massachusetts anti-discrimination laws.

Opponents of the legislation in the Berkshires and in Boston told The Eagle that the freedom to engage in the Boycott, Divestment, Sanctions movement, or BDS, is threatened by the bill.

The BDS movement is described by its members as an attempt to pressure Israel, through economic means, to change its policies toward the Palestinian people. Many activists and supporters of the movement say that Israel routinely violates the human rights of Palestinians.

Critics of BDS claim it unfairly targets Israel and is part of a broader attempt to delegitimize that nation. And there are those who agree that Israel violates the human rights of Palestinians but do not support the specific methods of the BDS movement.

The bill moving through the Statehouse, "an Act prohibiting discrimination in state contracts," or H.1685, is sponsored by state Rep. Paul McMurtry, D-Dedham, and state Rep. Steven Howitt, R-Seekonk. A similar bill was introduced in the state Senate by state Sen. Cynthia Creem, D-Brookline.

"If it passes, the legislation will infringe on the freedom of speech," said Amy Alpert.

Alpert, who lives in Becket, is one of three Berkshire residents who will give testimony at a public hearing on Tuesday, July 18, for the Joint Committee on State Administration and Regulatory Oversight.

Alpert will be joined in opposition to the bill by Monterey residents Pat Solomon and Julio Rodriguez.

LEGAL CONCERNS

"The reason we oppose [this bill] is because some sponsors say clearly that it's aimed at stopping state contracting with anyone supportive of the BDS movement," said Sarah Wunsch.

Wunsch is the deputy legal director of the American Civil Liberties Union of Massachusetts.

She told The Eagle that the provisions of the bill amount to an unconstitutional condition. By holding back a benefit from the state — in this case, the right to contract with Massachusetts — the bill is imposing conditions on contractors in a manner that could violate the right to protest.

"We don't take a position on BDS or calls to boycott," said Wunsch. "We do have a position on protecting First Amendment rights."

Aaron Agulnek, the director of government affairs at the Boston-based Jewish Community Relations Council, told The Eagle that Massachusetts is within its rights to make certain conditions on contracts.

"The state has a right as market participant to express its views," Agulnek said.

A QUESTION OF INTENT

Public statements from Howitt make clear that the bill is designed more to take aim at the boycott and less for its broader anti-discrimination stated purpose, said Wunsch.

"This bill clarifies to businesses that either support BDS or who boycott Israeli-owned businesses and products that the Commonwealth of Massachusetts will not engage in commerce with them," Howitt said in January.

Statements like that raise red flags about the actual purpose of the bill, said Wunsch.

"Intent is a factor in deciding what a law means," Wunsch explained, "and the intent to stop the BDS movement."

Howitt told The Eagle that the boycott movement was not the only target of the law.

"I think it does address the BDS movement," said Howitt, "though it also addresses other aspects."

Wunsch said that the law's focus on the boycott, and Howitt's public comments to that effect, amount to an intended violation of the Constitutional right to free speech by targeting the BDS movement.

Agulnek downplayed Howitt's comments.

"I think it's pretty clear when you read the bill what the intent is," he told The Eagle. "It's an anti-discrimination bill."

The broader implications of the anti-discrimination legislation are what Dara Kaufman, the executive director of the Jewish Federation of the Berkshires, concentrated on in an interview with The Eagle. Kaufman will submit testimony in favor of the law for Tuesday's hearing, she said, though she will not attend in person.

"I think there are lots of ways that businesses can discriminate" that are stopped by the bill, Kaufman said.

Rabbi Jodie Gordon of the Great Barrington synagogue Hevreh agreed.

"The law would prevent discriminating all over the place," she said.

SUPPORT WITHDRAWN

State Rep. William "Smitty" Pignatelli, D-Lenox, who serves on the committee, was a cosponsor of the House bill. but pulled his name from the legislation in May. Pignatelli told The Eagle that the intent behind the law was unclear when it was first presented to the committee. He signed on because of his commitment to social justice and civil rights, he said, but withdrew his name after being uncomfortable with the law

"The bill was a little misleading when presented to us," Pignatelli said.

Pignatelli added that he has not yet decided on how he will vote on the bill.

LOCAL DISAGREEMENTS OVER BDS

The BDS movement is a lightning rod for controversy. Opponents of the boycott describe it as counterproductive.

"I don't think it accomplishes what it advocates for," said Kaufman.

And there are accusations of a prejudicial edge to the movement.

"I think there's thinly veiled anti-Semitism in the boycott," Gordon said.

But Solomon and Alpert, who are both Jewish, contest that reading of their activism.

"Jews are prominent in BDS," said Solomon. "We feel a responsibility."

Alpert told The Eagle that the boycott is about the state of Israel, not the Jewish people.

"It's not aimed at the Jewish people," she said.

For Solomon, the behavior of Israel toward the Palestinians makes nonviolent protest a moral imperative — and that includes the boycott.

"As a Jew, it is absolutely my responsibility to object to Israeli policies that are inhumane and discriminatory," Solomon said. "If I'm not doing it, who else would?"

Reach staff writer Eoin Higgins at 413-464-4872 or @BE_EoinHiggins.


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