The ACLU’s shameful role in promoting antisemitism

There is perhaps no more guilty party in the current wave of antisemitic attacks on pro-Israel Americans than the American Civil Liberties Union.

By falsely portraying state anti-BDS laws as requiring "loyalty oaths," the ACLU is appealing to latent and blatant antisemitism.

To understand why, one first has to understand that the essence of modern antisemitism is not so much hostility to Jews as individuals, but a conspiracy theory in which Jews, collectively, exercise hidden power over events for the benefit of Jews at the expense of everyone else.

Given this essence of antisemitism, people and organizations who make false or wildly exaggerated statements about the doings of the "Israel Lobby" are contributing to antisemitism, regardless of whether they have any personal animus toward Jews. Consider, for example, those who have made the not-just-wrong-but-utterly-wacky claim that the lobby (a) somehow managed to persuade George Bush, Dick Cheney, 3/4 of the Senate, most of the House of Representatives, and so on, against their better judgement that going to war with Iraq was a good idea, and (b) that the lobby did so on behalf of Israel's interests. These folks are giving aid and comfort to antisemites, regardless of their feelings about Jews. Indeed, but for the latent idea that Jews are disloyal to the U.S. and have special power to pervert national agendas to their own agenda, no one would take this conspiracy theory seriously.

Let's turn to the ACLU. Various states have passed legislation that bans their state governments from contracting with businesses that refuse to do business with Israeli-affiliated institutions and individuals. This could be anyone from the Israeli government itself to American students who study in Israel, and everything in between. These laws are controversial as many people think that political boycotts of this sort shouldn't be penalized in any way by the government. The other side argues that first of all it's quite rich for boycotters to complain about being boycotted, and second that the boycott movement against Israel is both in its origins and in its practical effects antisemitic, making them in effect an adjunct of antidiscrimination laws. We need not resolve that debate here, but simply to note that the ACLU takes the side of the laws' opponents, and has launched both a litigation and public relations campaign against the laws. (I've explained why the ACLU's legal arguments are wrong here.)

There's nothing inherently wrong with that, but there is something wrong with the ACLU publicly arguing that when states require contractors to sign a certification that they do not boycott Israel-related entities, that the contractors are being forced to sign a "loyalty oath" to Israel.

Here are just a few examples:

ACLU political director Faiz Shakir: "And if a state is going to say that we're not going to do business with an American citizen because they refuse to take a loyalty oath, for example, the courts have struck that down."

The ACLU blog reprinting an article stating that the law requires "a loyalty oath to the state of Israel before he can be paid."

An ACLU blog entry: "That means [the government] cannot impose ideological litmus tests or loyalty oaths as a condition on hiring or contracting. This principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other "subversive groups" in order to keep their jobs. The ACLU successfully challenged many of those laws on constitutional grounds, and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same rule applies when the government asks someone to certify that they are not engaged in a boycott of Israel."

ACLU brief in Koontz v. Waston: "There is no plausible justification for ... the loyalty oath."

This is complete nonsense. Contractors certifying that their businesses don't boycott Israel-related entities is no more a "loyalty oath" to Israel than certifying that they don't refuse to deal with black or gay or women-owned business, or or that they will deal only with unionized businesses, is a "loyalty oath" to blacks, gays, women, or unions. Contractors who sign anti-boycott certifications are free to boycott Israel and related entities in their personal lives, and they and their businesses are free to donate to anti-Israel candidates and causes, and even to publicly advocate for BDS.

To further illustrate, let's compare a typical McCarthy-era loyalty oath to the certification contractors are being asked to sign.

Here's California 1950s loyalty oath for state employees:

I further swear (or affirm) that I do not advise, advocate or teach, and have not within the period beginning five (5) years prior to the effective date of the ordinance requiring the making of this oath or affirmation, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California and that I am not now and have not, within said period, been or become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches, or has, within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means of the Government of the United States of America, or of the State of California. I further swear (or affirm) that I will not, while I am in the service of the City of Los Angeles, advise, advocate or teach, or be or become a member of or affiliated with any group, association, society, organization or party which advises, advocates or teaches, or has within said period, advised, advocated or taught, the overthrow by force, violence or other unlawful means, of the Government of the United States of America or of the State of California . . .

This is nothing like merely signing a certification that your business does not boycott those doing business with or in Israel. It's also worth noting that while the anti-boycott legislation applies only to businesses contracting with the state, "loyalty oaths" were imposed on individual employees.

By spreading the false meme that no-boycott certifications amount to not just loyalty oaths, but loyalty oaths to a foreign government the ACLU has spread the canard that the pro-Israel (read, overwhelmingly Jewish) organizations and their members want to use the force of the state to require everyone to be "loyal" to Israel.

And this has indeed fueled antisemitic fires, and given credence to antisemitic statements like those Rep. Ilhan Omar regarding how Congress has been bought off to be loyal to Israel. I can't tell you how many times I've read in response to criticism of Omar's claim that American Jews are buying the government's loyalty to Israel, "she's right, what about the anti-BDS loyalty oaths?" For example, here is Paul Waldman in the Washington Post arguing that Omar has been "unfairly smeared," and pointing to imaginary state laws that "literally" require contractors to "pledge [their] loyalty to Israel."

Some commentators, meanwhile, have taken the ACLU's exaggerations and upped the ante. Andrew Sullivan, for example, recently portrayed a federal bill permitting states to refuse to deal with contractors who boycott those doing business with or in Israel entities as a bill that would have "made it illegal for any American to boycott goods from the West Bank, without suffering real economic consequences from their own government."

I understand that ACLU lawyers have a responsibility to their clients to win the p.r. war to help with its legal battle, but the organization has disgraced itself by using the "loyalty oath" canard that it had to know would play on latent and blatant antisemitic sentiment. The real shame is that I don't think that the poobahs at the ACLU care.

David Bernstein is a professor at the George Mason University School of Law. He is the author of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press) and Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press).