Anti-BDS Laws And The Courts – With Joe Sabag: A streak of anti-Semitic rhetoric and anti-Israeli discriminatory activity has caused great concern among lawmakers who are responding with Anti-BDS laws. What are these Anti-BDS laws? What have the courts said about these laws and why does it matter? What will result from the court’s decision? Tune in to hear Joe Sabag form the Israeli-American Council for Action explain!
Air Date: 08/03/2022
Guest: Joe Sabag
On-air Personalities: David Barton, Rick Green, and Tim Barton
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Transcription note: Â As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.
Faith and the Culture
You found the intersection of faith and the culture. Thanks for joining us on WallBuilders Live today. We are taking a biblical, historical and constitutional perspective to everything happening in the culture. And this program is a way of applying that biblical, historical and constitutional perspective.
What I mean by that? I know I talk fast. I’m sorry. But listen, we have to know when we’re addressing an issue, whether it’s how we treat Israel, which is what we talking about a little bit today, a particular aspect of that or how we treat our neighbors, how we tax, how we do justice, what kind of due process do we have treating each other equally under the law.
All of those things, everything that we deal with, education, entertainment, you name it, all of it, there is a biblical perspective for how to do that the right way. And so we want to take that approach.
But then we also want to say, what can we learn from history? How do we look back in time and go, okay, did anybody ever try to do what this Congress is trying to do or this president is trying to do? And then we can learn from that history and say, well, wait a minute, that actually is a bad idea to do that.
For instance, dumping $10 trillion on the market, paying people to stay home, telling people they had to stay home even when they were healthy, and then paying them to stay home. So everybody’s still buying goods, but they’re not working, they’re not creating goods. There’s no supply chain and everybody’s got all this extra money to spend.
Well, all of that, everybody knew, anybody that knew anything about economics knew that is a formula for inflation. We were saying that from the very beginning, including when Trump was the one doing the initial COVID bailout package.
So, all of these things, there’s things in history that teach us the right and wrong way to go. And so if we have a historical perspective, it helps us so much. We always hear the expression, you know, if you ignore history or you don’t know your history, you’re doomed to repeat it. Well, that’s why, because there’s answers in history. We know there’s nothing new under the sun.
So you could take any policy being presented by any politician or by anyone just talk it around the dinner table. And there’s some point in time in history where the principle that’s been discussed has happened before. And then you can look at the results and what happened when people applied that.
That’s why we advocate for tax cuts, letting people keep more of their own money and then spending that in the marketplace, actually produces more revenue for government, because we’ve seen that happen every time it’s been tried. When Democrat John Kennedy did it in the early 60s, when Ronald Reagan did it as a Republican in the early 802, every time you do that, the economy does better and government actually gets more revenue, not less, even though the tax…
I’m just giving you some examples of why it’s important to study history. And of course, the Bible tells us to study history. We’re supposed to know our history. Remember the former days. So we want to know the biblical, the historical and the constitutional perspective on issues. That’s what we do here at WallBuilders Live. And we’re thrilled that you’re here with us.
My name, by the way, is Rick Green. I’m a former Texas legislator and America’s Constitution coach. And I am honored to be here with David and Tim Barton. They started WallBuilders years ago and they’ve been influencing the culture, well goodness, for three decades now in an incredible way. In fact, there’s things that David Barton was doing 30 years ago when he started WallBuilders that he was a voice in the wilderness and it is now understood by much of the culture to be true.
In other words, what he did from the beginning was listen to God and what God was telling him to do, and God rewarded that and gave David a voice that has now impacted the entire culture. So it truly is an honor to be here and work with the Barton family. David’s, of course, America’s premier historian and our founder at WallBuilders. Tim is of course a national speaker and pastor and president of WallBuilders. And you can learn more about all three of us at our website, wallbuilderslive.com.
Alright, David and, Tim, we’ve got Joe Sabag with us later in the program, going to be talking about their work on the Anti-BDS laws across the country. It’s the Israeli-American Council for Action. They are working on so many of these Anti-BDS laws, great success across the country. A lot of states that have adopted this now and now a good decision coming out from the eighth Circuit Court, so a lot of good news that we’re going to share on that. But speaking of the Israeli-American Council, David, you’re headed to Israel in just a few months in January, I guess it is.
We are in January. And we want to offer an invitation for some folks to go with us, particularly pastors. This is a trip for pastors. And I’ve got to say that when I went to Israel the first time, I felt like it’d be good to go, but I didn’t expect too much. I will tell you it was transformational. It absolutely changed what I know about the Bible and how I interpret the Bible. It was kind of like I’ve been watching TV in black and white for all these years, and I didn’t know it was black and white until I saw color TV.
A Transformational Trip
And then suddenly, I’m going, oh, my gosh, the difference between high RES digital color and black and white, it’s massive. That’s what a trip to Israel was like. It absolutely transformed the way I read the Bible, the way I understood the Bible. So many things came to life.
And so what we have is an opportunity for pastors to be able to go. And this is a trip that’s fairly inexpensive compared to most Israel trips, and that’s because the governments are helping underwrite this. They want pastors to get there, they want pastors to see what’s there, and they want pastors hopefully to fall in love with the Bible history that’s there and bring their own congregations to see that.
And so because of that, if you’re a pastor that has, let’s say, 500 people in your church or you have a digital footprint, a social media footprint of 2,500, those are the kind of folks that we’re inviting on this trip, and it’s a six day trip in Israel. And on the trip and by the way, it’s from January 15th-21st, and so that six day trip. You can go to the website, the link is there, you can see about the trip, you can see the cost. It’s about half the cost of a normal trip.
But as a pastor, if you’re a larger church or have this kind of influence, we want to invite you to come with us, it is a fantastic trip that we have there. And they want you hopefully to bring your church back at some point in the next 18 months, let your church members see that or people from your church. And so that’s part of the objective to be upfront, but it doesn’t matter. I will tell you, this is a transformational trip.
And just to clarify for everybody else. If there’s people thinking, now, wait a second, I’m not a pastor and or maybe you are a pastor and you don’t have maybe 500 people in your church or you don’t have a digital social media following, you have 2,500 people, there are other trips that we certainly will take in the future. And this is something that is not exclusive, that is the only trip we’re taking or we’re only taking certain pastors on this trip.
But it’s just this is the first trip, we’ll talk about more trips coming up there, very likely will be even more trips coming up in 2023. This is the first one on the schedule. Now that Israel has changed some of the mandate requirements where you don’t have to have a COVID vaccine, they’re loosening up on some of those restrictions, that is part of why we are now excited to be able to go back.
We were not going to take people when there were any kind of COVID restrictions and partly because we wouldn’t have made it in, even though pretty much all of us have had COVID. And it used to be the science said, if you have gotten that disease and you don’t need to get a vaccine for the disease that you’ve already had, nonetheless not to go down that rabbit trail, certainly, Israel is opening back up.
And this is something that every single Christian, if you are able to save the money, you need to save that money at some point, get over there and just see this history, it’s absolutely incredible. But that, as you mentioned, they definitely go on the website, find out more information and sign up for it. For pastors, if you can go, you want to be on this trip.
And part of the reason we go to Israel is we’re huge supporters of Israel. We believe what God says in Genesis 12, that the way you treat the Jewish people, that’s the way He’s going to treat you; and if you bless them, you’re going to be blessed. And so we support Israel. But there’s a lot of people in the world that don’t.
And part of the effort of trying to shut down Israel has been what they call BDS, which is Boycott, Divestment and Sanctions. And so a lot of leftist groups in the United States started doing things to boycott anything made in Israel, boycott Israel.
Thirty-Six States Have Passed….
We want to shut them down because we don’t like what they’re doing. And so as a result, we have now 36 states that have passed anti-BDS laws. These laws said, hey, we are friends of Israel, and if you’re trying to shut down Israel, this state is not going to do business with you.
Now, you can imagine the Left doesn’t like those laws that don’t punish Israel and so they’ve taken those laws to court. And we have a substantive ruling from a court first in the United States on this anti-BDS stuff for the substance of what’s there and it’s a really good result. And it’s interesting to see what’s happening as a result of this court ruling. And so what we have is Joseph Sabag, who was part of that case, explaining to us what’s happened and the good news that comes as a result.
Well, stay with us, folks. Joe is going to be with us when we come back from the break. You’re listening to WallBuilders Live.
A Great Collection for Your Young Person
Hi, friends, this is Tim Barton of WallBuilders. This is a time when most Americans don’t know much about American history or even heroes of the faith. And I know oftentimes we, parents, we’re trying to find good content for our kids to read.
And if you remember back to the Bible, to the book of Hebrews, it has the faith Hall of Fame where they outline the leaders of faith that had gone before them. Well, this is something that as Americans, we really want to go back and outline some of these heroes, not just of American history, but heroes of Christianity in our faith as well.
I want to let you know about some biographical sketches we have available on our website. One is called The Courageous Leaders collection. And this collection includes people like Abigail Adams, Abraham Lincoln, Francis Scott Key, George Washington Carver, Susanna Wesley, even the Wright brothers. And there’s a second collection called Heroes of History.
In this collection, you’ll read about people like Benjamin Franklin or Christopher Columbus, Daniel Boone, George Washington, Harriet Tubman; friends, the list goes on and on. This is a great collection for your young person to have and read and it’s a providential view of American and Christian history. This is available at www.wallbuilders.com. That’s www.wallbuilders.com.
Welcome back to WallBuilders Live. Thanks for staying with us today. Joseph Sabag is with us from the Israeli-American Council for Action. Joe, thanks for some time today, man.
Hey, we’ve been following all of these anti-BDS laws and efforts and actually involved in helping to get some passed across the country. And it looks like some good victories continue to happen. So I wanted to get an update from you. Looks like even a victory at the Eighth Circuit. So talk to us, man, how’s the effort? I mean, now we’re over half of the states have passed these at this point?
Well, there’s a lot for the community to be happy about. We’re up to 36 states now.
36, oh, my goodness, I was behind. I thought it was like 27 or 26 or something.
Now, we’re two thirds of the American states now. So the vast majority of states that have any significant amount of exports to Israel or have large economies have all taken this kind of approach; they’re protecting exports and an employment interest in their home state.
They’re making sure that they’re reinforcing laws that regulate against discrimination by spending taxpayer money consistently. And they’re doing good by our wonderful ally and friend Israel and making sure that the trade connections between their states and a cutting edge economy are doing well and are not going to be tampered with by bad actors.
Challenges in the Courts
Oh, that’s huge. And you mentioned something there, I think we should point out because in my mind, every time I think about these, I think of the big funds that the states have for education and whatnot and making sure that they’re not investing in in companies that are part of the BDS crowd. But you mentioned something else, and that is even how they spend money and the companies that they spend money with contractors, and that sort of thing, that’s another area you guys are watching.
Correct. You have to remember that a lot of these states have not only regulated their large pension funds and made sure that they’re divesting from companies that would participate in the BDS movement, but they’re also regulating their contracting systems. And the way that they actually choose to procure goods and services is something that they’re paying careful attention to.
Very cool. Okay. So some have challenged these laws and so it’s made its way through several of our courts across the country. But the big victory out of, I guess, was the Arkansas statute that was challenged?
Yes. One thing I want to clarify for the audience is that this is the only case where we’ve seen the court actually issue a merit-based ruling. There have been other instances where the ACLU or some of the other counsel who were representing plaintiffs in those cases were able to obtain an injunction. But that’s not the same thing as having a merit-based ruling.
The Arkansas case, Arkansas Times versus Waldrip is the only case that’s actually gone through full judicial scrutiny. And the end result, of course, several weeks ago is that an en banc panel in the Eighth Circuit agreed that these laws are perfectly constitutional and do not violate the First Amendment. So, I’ll just briefly explain for the audience procedurally what happened.
At the lowest level, the District Court dismissed the suit and agreed that these laws did not have any First Amendment problems and were constitutional. It was then overturned at the appellate level by a three judge panel on a 2-1 basis. In that case, the judgment of the court tried to interpret a nonspecific part of Arkansas law out of the context of the more specific portion of that law.
This completely stepped away from normal canons of judicial interpretation. What I mean by that is that it was a clear cut sign of judicial activism. And on top of that, just given that ruling, there would have been no reliable way for lower courts to understand how to interpret statutory language that’s handed over from legislatures and there would have been no reliable way for the legislators themselves to figure out how to formulate language in a way that they could understand how it would be treated by the courts.
So we saw clear cut signs of judicial activism. And in this case, we have a really sharp attorney general, fabulous solicitor general there, Nick Brawny, and they decided that rather than appealing to the Supreme Court, that this case had enough technical difficulty to and created such complications that they were going to appeal to the entire panel of judges in the Eighth Circuit itself.
They did that, and in a very rare maneuver, the Judges of that Circuit decided to take up and to hear the case anew. And then they ended up three and a half weeks ago issuing a ruling on a 9-1 basis holding that the lower opinion of the three judge panel ought to be overturned and they clearly articulated that there were no First Amendment problems, which I’ll be happy to explain. I’m sure we’re going to get into that in a moment.
I love it, man. I mean, this is hopefully going to stop a lot of the other efforts and lawsuits across the country and also give you momentum in some of the states that have not yet adopted the statutes, right, I mean, and you probably already see some of that?
Yeah. There’s no doubt. I think that the overall meaning of this ruling is that it allows the paint to dry on this network of laws and it makes it clear that they’re here to stay. The other side is going to continue trying to tear them down. But I think that this goes a long way into establishing the permanence of these laws.
Yeah. Anyway, I should’ve done this at the beginning. I apologize. But just for our listeners that haven’t followed some of these efforts, just if you could back up and give us a couple of minutes on the history of the BDS movement, what they’re trying to do and why these anti-BDS statutes are so important.
I think this could most easily be understood as cancel culture that’s specifically being aimed at Israel. These are folks who want to use forms of economic terrorism and warfare to try and cancel out Israel’s economy and therefore reduce Israel’s viability overall. We understand that Israel has serious cutting edge technology. We’re not talking about lime of beans in this case.
Cancel Culture Aimed at Israel.
We’re talking about everything from pharmaceuticals, health sciences, national defense, water, I mean, disaster relief and every other type of innovation that really matters in today’s world. So if all of those items were to be canceled out and to be removed from the shelf like BDS activists would like to do, you would literally see people dying in the streets in certain instances.
We know that there’s a quality of life impact that relies upon trade with Israel because of the kind of innovation that it conducts. So, we saw a significant shift about 20 years ago at the UN Durban Conference, where boycotts of Israel transitioned from being largely state sponsored by countries themselves, and they were handed off to NGOs, which began to drive that process. So eventually there needed to be a significant update to the US laws to try and deal with this problem. That wasn’t going to happen at the congressional level for a variety of reasons.
So you had at the federal level laws that trace back to the 1970s that just weren’t ready to deal with NGO-driven boycotts. And so you saw the states themselves step in, in the face of inaction and dysfunction at the congressional level and begin to develop their own laws to protect their interests.
I was very fortunate to have a hand in that process. I helped along with my partner, Eugene Kontorovic write the first anti-BDS law in the state of South Carolina in the spring of 2015, which Governor Nikki Haley at the time then signed into law, and that triggered a process where many other states realized the merits of what was going on. That’s how we got to 36 states at this point.
ACLU and Their Friends
Eventually, the ACLU and other BDS proponents came along and decided that they wanted to test these laws and to challenge their validity. In this case, we’re really talking about the distinction between conduct and speech. But there were certain other implications to this as well; meaning the ACLU and their friends largely also wanted to be the deciphers of what type of speech ought to be legal and what the parameters of the First Amendment ought to be and what it ought not to be.
We know that just 10-15 years ago, the ACLU was traveling the country, suggesting that a Christian baker on the basis of his religious faith has no private First Amendment right to engage in commercial discrimination against a couple that might walk through the door, a homosexual couple and certainly, that the baker had no private First Amendment right to commercially discriminate.
Now, at same time, they’re arguing that if it was somebody who had served in the IDF walking through the door immediately afterwards, well, in that case, on the basis of that person’s national origin, it’s perfectly fine and that there is a private First Amendment free speech right on the basis of their political viewpoint to commercially discriminate against that person. So I know I just shared a mouthful…
No, it’s good. I mean, not that hypocrisy is new for them, but that’s such a good lay out of that’s exactly what their arguments were. I love it. Keep going.
These Laws Don’t Regulate Speech.
Yeah. As a policy fact, it was just simply through the roof. In this case, we didn’t have to get so far as into testing what the extent of First Amendment rights were and were not. We’re simply, in this case, just examining the fact that without speech, nobody has any idea why somebody might be choosing not to buy products from Israel. So the distinction between conduct and speech is what’s operative here.
Another example, why did I choose to join you today? Is it because I agree with the viewpoint of this show and I wanted to compliment? Or is it because I disagree with the viewpoints on this show and I wanted to come on and criticize? Nobody knows based on the fact of my conduct and the fact that I’m here.
Without me explaining exactly what my intent is, all we’re looking at is conduct which inherently in and of itself doesn’t express anything. And that’s just a great way of understanding the way the court chose to interpret these laws in explaining that BDS conduct meaning the commercial discrimination aspect of it doesn’t express anything in and of itself; inherently, it’s the speech alongside it. These laws don’t regulate speech.
If somebody hates Israel, if they want to boycott Israel, they can boycott Israel all day long. But the moment they start engaging in a commercial conduct, meaning they establish a policy of boycotting Israel, at that point they can’t say that they have any inherent right to an investment or a contract with the state. The state has the ability to choose its own contracting and investment partners, and on that basis, the states recognize the companies participating in BDS are just not desirable to do business.
A Very Important Distinction
Yes. So you’re drawing a very important distinction between an individual’s actions and they get to choose who they spend their money with. But a state actor, when you’re spending the taxpayers money, that’s a policy decision at that point. And if the policy in that state is that we’re not going to let you be a part of this movement that’s trying to destroy Israel in our state, we support Israel.
It becomes a policy decision and that doesn’t affect that individual’s ability to buy and sell with whoever they want to. That’s fine. That’s their decision.
But there’s a definite distinction there and I think you laid that out perfectly. And the thing is, it’s so important to recognize that, you know, the US is the £800 gorilla economically and so that’s why that battle had to be fought here. I do have to ask you before I let you go, though, what about other nations?
Are there efforts on the same front? I know they’re doing the BDS movement in other countries. I’m assuming it’s a lot harder to pass things like this and get anti-BDS legislation passed in other countries. But is that something that you guys are doing?
National Origin Discrimination
The answer is yes, in short. But we have to recognize that other countries recognize this issue also as a matter of national origin bias and discrimination. There are other communities, not just the Jewish community and the Israeli American community that are suffering from national origin bias. If we take a look at what’s going on right now among Asian-Americans and the way that they’re suffering because of national origin bias being projected against them.
I mean, when these laws came into the southwestern United States, it wasn’t hard to remind that there had been internment camps that had rounded up and in turn, Japanese-Americans on the basis of their national origin.
We see the Hindu American community right now also really struggling as a matter of national origin discrimination as well. And certainly, when we go into Latin America and other countries that have emerging ties with Israel, first of all, their expatriate communities, their diaspora communities also are relating to them what’s going on in terms of national origin discrimination.
And second of all, just like all these states, if they’re doing good business, if they have economic opportunity to help their people advance. They don’t want out bad actors stepping in to try and ruin that for them. So as a matter of, just good business as well, these are common sense laws that are being put into place. We saw something of this sort happened just a few months ago in a trade compact that was rolled out between Guatemala and Israel.
Common Sense is Prevailing
I think in this case common sense is prevailing, thankfully. We don’t always have a lot of good news hit us in the face when we open up the papers and read about Israel. But this is definitely a success story that the community ought to be feeling really, really great about. For those who love Israel, when it comes to dealing with these boycotts, we’re definitely on the winning side of things.
Great news, man. Alright, iacforaction.org is the website and you can sign up there for emails and follow along with some of these battles across the country in these individual states and support Israeli-American Council for Action. Joe, God bless you, man. Thank you so much for your time today. Appreciate you keeping us informed on this.
My pleasure. I look forward to joining you again in the future.
Back with David and Tim now. Guys, of course, we talked about going over to Israel with you guys, but some people probably listening say, well, I can’t go, but how can I support Israel? Well, here’s a great way to support Israel, is encourage your legislators. If they have not already passed an anti-BDS law, they need to do that and make sure that the states money is not going into companies that are trying to destroy Israel’s economy.
Trying to Punish Israel
You know, it’s interesting. Part of Israel is and the Bible, we know what Judea and Samaria is. That’s where Jesus spent a lot of time, a lot of ministry there. And it’s interesting, the Left now with his BDS laws, they’re saying, well, you know what, Judea and Samaria is not part of Israel.
So you can go ahead and hit Israel for what they’re doing in Judea and Samaria. This is part of Israel. So it’s interesting to see them still trying to get around this law. But this law has great effect.
Like in Texas, Texas passed an anti-BDS law said you can’t punish Israel. And if you try to punish Israel economically, we’re not going to let the state do business with you. Well, guess what? One of the really popular ice cream sides at the University of Texas in Austin was Ben and Jerry’s ice cream.
But Ben and Jerry’s ice cream is far left and they don’t like Israel and so they were boycotting Israel. And so the University of Texas does not serve Ben and Jerry’s ice cream anymore because our state law says we’re not going to reward people who are trying to punish Israel. And so that’s just one example of how this really does have a substantive impact.
This Isn’t Taking AwayPrivate Rights
Well, and to make the point as well, Rick, you do this in the interview, but I think it’s worth people noting this is not suggesting that Ben and Jerry’s can’t hold that position. They totally can hold that position. This is just suggesting that we are not going to take taxpayer dollars and state money or on state universities. We’re not going to contribute to the profit of an organization who is saying we want to destroy the Jewish people in Israel. Those are not people we are going to give our business to.
And this again, as a state, as individuals, college kids could totally go to the grocery store and buy a gallon of Ben and Jerry’s or half gallon, however much they’re going to consume, they can go do that. But it’s recognizing and again, Rick, you guys pointed this out, you and Joe talked about this, this is not taking away the ability of individuals on a private capacity to do things. This is just recognizing that as a state, we’re not going to do this. And there’s lots of reasons we would not want to see the destruction of Israel. Not the least of those is a biblical perspective.
And not to go down that, not really rabbit hole, if the Bible talks about it, it’s kind of an important not to go down that main road about Israel, but as a side note and this it’s also worth noting that when we look at trade partners, when we look at stability in the Middle East or the region that right now especially after Joe Biden pulled out of Afghanistan gave the old military bases over to Afghanistan or China or whoever happens to be in charge on whatever the day or the month might be, we don’t have places to operate at the same level anymore.
Anti-BDS Laws And The Courts – With Joe Sabag
It becomes even more important and vital that you have a nation like Israel, who has these same basic values, the same basic freedom mindset, and who is a good player, a good trade partner with America, helping bring stability to the region. So there’s lots of reasons just strategically. Again, in addition to the Bible, there’s a lot of strategic reasons why as Americans, this makes common sense, even if you’re not a Christian, however, if you are a Christian, we really could just point to the Bible and say this is really enough.
And this notion that maybe that the Jews were replaced by Christians, this is what the Apostle Paul said and Romans is don’t be confused on this. Even though there might be a different covenant now, remember the tree you were grafted into and you don’t curse the tree that you were grafted into. You thank, God, for the tree you were grafted into.
And so old covenant, new covenant, that neither really is replacing one or the other. The reality of the foundation of Christianity is Judaism. And this is a biblical perspective, not to mention their incredible trade partners and bring stability to the region.
That’s it, folks, out of time for today. Check us out at wallbuilderslive.com. Thanks so much for listening to WallBuilders Live.