RECALL: W.V. legislators block free speech to ensure total support of Israeli apartheid & war crimes
"The members of the WV legislature (...) are—at best—tone deaf to the conditions facing oppressed peoples around the world, but most likely are woefully ignorant of geopolitics and international law."
By DOUGLAS J HARDING
Local legislators seemed desperately confused when all but three of them voted in March to ensure that the state, by law, will stand wholeheartedly in support of Israeli apartheid, war crimes, illegal occupation and attempted genocide of the Palestinian people—even if doing so requires suppressing the free speech of West Virginians.
The American Civil Liberties Union of West Virginia has described House Bill 2933, the “Anti-Discrimination Against Israel Act,” as a “blatantly unconstitutional infringement on free speech.” The bill stipulates that the state of West Virginia cannot—excluding contracts of less than $100,000—contract with any business engaging in a boycott of the apartheid state of Israel and its illegal occupation of the Palestinian people.
“We’ll just put it in the contract: The company cannot engage in an active boycott of Israel,” explained the bill’s main sponsor, Del. Kayla Kessinger (R- Fayette, 32), on the House floor. “I think it’s important for West Virginia to do that because we, as a state and as a country, benefit greatly from our relationship and our alliance with the nation of Israel.”
Except for two Republican delegates marked as “absent” for the vote, Del. Barbara Fleischauer (D- Monongalia, 51) is the only state lawmaker who did not vote for the bill, choosing instead to vote against it. Every other delegate and senator in the state—of both parties—voted in favor of the bill.
Del. Kessinger said the bill aims to target companies involved in the Boycott, Divest, Sanctions (BDS) movement, which she repeatedly described as, “an organized movement whose sole purpose is to delegitimize, eliminate and destroy the nation of Israel—completely eliminate the nation of Israel today as we know it.”
The following is an exchange that occurred on the House floor between Del. Kessinger and Del. Daniel Linville (R- Cabell, 16):
- Del. Linville: “Would you say the intent of the bill here is to make sure that we are not investing in companies or doing business with companies that are engaging in BDS?”
- Del. Kessinger: “Yes.”
- Del. Linville: “And the underlying reason for that is that the BDS movement delegitimizes the nation-state of Israel?”
- Del. Kessinger: “And seeks to completely eliminate it, yes.”
- Del. Linville: “And if it seeks to completely eliminate a nation as recognized by international law—that would be international terrorism, right?”
- Del. Kessinger: “Yes.”
- Del. Linville: “So the intent of this bill is to say the state of West Virginia will not participate in international terrorism?”
- Del. Kessinger: “The point of this bill is to say that West Virginia will not be complicit with entities who seek to eliminate a nation for no other reason than their religion, ethnicity and national origin.”
- Del. Linville: “…And who are, therefore, engaging in international terrorism?”
- Del. Kessinger: “If that’s how you want to say it…”
- Del. Linville: “That seems pretty simple. I would urge passage of the bill, Mr. Speaker.”
The above exchange demonstrates a dangerous and grotesque misunderstanding of both the Israel-Palestine crisis and of the BDS movement. In fact, it is the state of Israel which routinely violates international law and commits war crimes—often purposefully murdering Palestinian children and occasionally bombing media headquarters—and it is the BDS movement which seeks to firmly oppose such acts of terrorism.
Following that exchange and another lengthy monologue, Del. Kessinger encouraged fellow legislators to do a Google search of the BDS movement, and Del. Fleischauer obliged. Groans and laughter from other legislators can be heard through the live stream of the House session as Del. Fleischauer continues to ask critical questions of Del. Kessinger and her legislation.
“I did do what [Del. Kessinger] suggested, and I just Googled ‘BDS’—It’s right in front of me—and what it says is, ‘BDS is a Palestinian-led movement for freedom, justice and equality. BDS upholds the simple principle that Palestinians are entitled to the same rights as the rest of humanity,’” Del. Fleischauer said. “I’ve looked a little bit through, and I’ve looked at the section that talks about the advisory opinions of the International Court of Justice, which found the Israeli occupation of Palestinian territory to be illegal—and there are many, many UN resolutions…”
Indeed, a simple Google search finds Del. Fleischauer’s assessment to be accurate.
The International Court of Justice, in 2004, issued an advisory opinion stating that, “[Israel’s] building of a barrier in the occupied Palestinian territory is illegal and said construction must stop immediately and Israel should make reparations for any damage caused.”
“By a majority of 14 to 1, the judges found that the barrier's construction breaches international law, saying it violated principles outlined in the UN Charter and long-standing global conventions that prohibit the threat or use of force and the acquisition of territory that way, as well as principles upholding the right of peoples to self-determination,” the opinion states.
In 2016, the United Nations Security Council adopted a resolution calling Israel an “occupying power” and, “reaffirm[ing] that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace…”
Meanwhile, BDS describes itself as a “movement for freedom, justice and equality” organizing to ensure and to protect the human rights of Palestinians.
“Israel is occupying and colonizing Palestinian land, discriminating against Palestinian citizens of Israel and denying Palestinian refugees the right to return to their homes,” the BDS website states. “Inspired by the South African anti-apartheid movement, the BDS call urges action to pressure Israel to comply with international law (…) BDS is (…) effectively challenging international support for Israeli apartheid and settler-colonialism.”
Del. Fleischauer admitted she was not very familiar with the BDS movement, but said she could not vote for the bill because of her serious concerns about Israel’s treatment of the Palestinian people.
“I certainly support the state of Israel, especially with respect to being a safe haven for some religious minorities, but I’m not happy with what they’re doing to Palestinians,” Del. Fleischauer said on the House floor. “I have different feelings about the state of Israel. I have problems with their president who is being pursued for corruption, and I very much worry about the Palestinians and their rights. So, in addition to the issue of being a safe haven for Jews always, sometimes there’s a differentiation between other religious minorities that live in Israel—and who have lived in Israel for all their lives.”
Human rights groups around the world describe that “differentiation” between Israel’s treatment of religious minorities as an apartheid state engaged in settler-colonialism and attempting ethnic cleansing and genocide against Palestinians.
“In most aspects of life, Israeli authorities methodically privilege Jewish Israelis and discriminate against Palestinians,” a recent Human Rights Watch article explains. “Laws, policies and statements by leading Israeli officials make plain that the objective of maintaining Jewish Israeli control over demographics, political power and land has long guided government policy. In pursuit of this goal, authorities have dispossessed, confined, forcibly separated and subjugated Palestinians by virtue of their identity to varying degrees of intensity. In certain areas, as described in this report, these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution.”
Instead of considering the opinions of the international community, human rights groups around the world or the people of Palestine, Del. Kessinger admitted that her vision of the Israel-Palestine conflict comes from information given to her by Israeli government officials and military leaders.
“I introduced this legislation for the first time in 2018 after coming back from Israel,” Del. Kessinger said on the House floor. “While I was there, I had the opportunity to meet with members of their community, members of their Knesset even, and business leaders within the nation of Israel. Prior to going there—I’m going to be honest—I was completely ignorant to the existence of the BDS movement.”
Del. Kessinger continued, attempting to describe a mutually-beneficial relationship between the state of West Virginia and Israel, but could only vaguely claim that Israel has “led the way on finding innovative ways to help eliminate food and water insecurity,” without providing any evidence for that claim.
Instead, Del. Kessinger described a one-way relationship in which the United States and West Virginia uncritically and without reason provide Israel with hundreds of millions of dollars of military aid for little to nothing in return.
“This is a nation whose existence directly benefits the United States of America and, specifically, the state of West Virginia,” Del. Kessinger said. “We actually have, in 2017 alone, we had over $7 million in exports to Israel. Since 1996, we’ve had over $187 million in exports to Israel, and at least five West Virginia companies have done business with and engaged in cooperative projects with Israel, including Union Carbide, which I’m sure most of you are probably familiar with.”
An analysis by the U.S. Campaign for Palestinian Rights finds that the U.S. will provide around $40 billion of military aid to Israel over the course of a decade.
“U.S. taxpayers will give Israel a total of $38 billion of weapons over ten years ($3.8 billion each year from 2019 to 2028), according to a 2016 agreement between the two countries,” the analysis states. “The Israeli government uses these weapons, in violation of U.S. laws, to commit human rights abuses against Palestinians living under its brutal, 50+ year military occupation of the West Bank, including East Jerusalem, and the Gaza Strip. These include injuring and killing Palestinians, detaining and abusing children, demolishing homes, uprooting agriculture, and denying freedom of movement and expression.”
Further analysis shows the state of West Virginia, alone, provides more than $12 million worth of weapons annually to Israel.
Del. Kessinger also attempted to describe a relationship between Israel’s military and U.S. law enforcement.
“I understand, on the basics, this doesn’t seem like something that would have a direct benefit to the state of West Virginia, but I want to explain to you how important the existence and security and strength of the nation of Israel is—not only to their protection but to the protection of the United States and to the protection of West Virginia,” she said. “The alliance between West Virginia and Israel—we share intelligence that helps us in counter-terrorism and in nuclear proliferation. They’ve actually provided us with a ton of technology when it comes to advancing the way that we protect ourselves at home and abroad. Their military has helped the United States in significant ways. When I was over there, I actually got to hear from some [Israeli] military leaders who talked about—They came to New York and helped train NYPD officers on counter-terrorism, on how to spot and identify counter-terrorism.”
Attempting—and succeeding—to persuade fellow legislators to vote for HB 2933, Del. Kessinger also made false claims about the founders of the BDS movement and other activists who support it.
“Again, the BDS movement (…) is an international organized movement whose sole purpose is to delegitimize, eliminate and destroy the only Jewish state in the world,” she said. “I would imagine if I polled everyone in this room, every single one of us would agree that the best solution in the Middle East is a two-state solution. This organization believes in a single-state solution in which a Jewish state does not exist. And if you don’t believe me, you don’t have to take my word for it, you can actually just do a quick Google search, but I’ll save you a little bit of time and just share with you a few quotes from the founding members of the BDS movement.”
Below are the quotations Del. Kessinger shared with fellow legislators on the House floor:
Omar Barghouti, co-founder of the BDS movement said: “Definitely—most definitely—we oppose the Jewish state in any part of Palestine.”
As'ad AbuKhalil, a Lebanese-American professor of political science at California State University—and not a co-founder of the BDS movement, as Del. Kessinger claimed—said: “The real aim of BDS is to bring down the state of Israel. That should be stated as an unambiguous goal. There should not be any equivocation on the subject.”
Anna Baltzer, an activist—also not a co-founder of the BDS movement, as Del. Kessinger claimed—said: “We need to wipe out Israel.”
The alleged quotation by Baltzer has been proven to be false. The bottom line of a Jewish Virtual Library webpage titled “BDS: In Their Own Words,” now states: “*An earlier version of this page incorrectly cited Anna Baltzer as saying, ‘We need to wipe out Israel.’”
Again, Del. Kessinger’s vision of the humanitarian crisis in Palestine holds up only as long as one fails to consider the opposing position, while also hearing constant lies about said position.
Below is a quotation by Israel Prime Minister Benjamin Netanyahu, attempting to justify Israel’s treatment of Palestinians as second-class citizens and threatening to, yes, “wipe out” Israel’s enemies with nukes:
“True peace can be achieved only if our hands strongly grasp defensive weaponry. In the Middle East, and in many parts of the world, there is a simple truth: There is no place for the weak. The weak crumble, are slaughtered and are erased from history while the strong, for good or for ill, survive. The strong are respected, and alliances are made with the strong, and in the end peace is made with the strong.”
Netanyahu also has gone so far as to blame Palestinians for the Holocaust, claiming that it was not Hitler who wanted to “exterminate the jews,” but Amin al-Husseini, Mufti of Jerusalem in the 1920s and 1930s:
Even the most basic attempts to see past Israeli propaganda on the Israeli-Palestine crisis reveal a deeply disturbing culture of apartheid and ethnic cleansing against Palestinians in the state of Israel.
Israeli officials and analysts refer to its military strategy of using wildly excessive force against vastly less powerful “enemies” as, “mowing the grass.”
“The phrase implies the Palestinian militants in the Gaza Strip and their supply of crude but effective homemade weapons are like weeds that need to be cut back,” a May 14 article in The Washington Post explains. “Such tactics have faced significant criticism from international human rights groups, often due to the disproportionate number of deaths caused by Israeli forces, compared to those caused by Palestinian militants during conflict.”
In a video from 2017, independent journalist Abby Martin walks around the streets of West Jerusalem interviewing Israeli citizens. Below are several of the fascistic, blatantly ahistorical perspectives some shared regarding their Palestinian neighbors:
“I think Israelis have to take over. They have to kick [Palestinians] away. It will be much better—not to kill them—just [force] them to go back to Arab countries.”
“We conquered this place rightfully. It’s ours.”
“The Jews came here and took this land, so this is our land now. I don’t think there should be [any] Arabs. We give the Arabs Gaza, and they should go live there quietly. Go back to Iraq…”
“I think we need to kick out all the Arabs. The Arabs do terrorist attacks, and we need to kill Arabs.”
“The only answer is to carpet bomb [the Palestinians]. It’s the only way to deal with them. The Jews have a right to hate [Palestinians]. I don’t trust any of them.”
Del. Kessinger said she would like the state of West Virginia to compile a list of all companies engaged in boycotting the state of Israel—so as to avoid working with and supporting those companies—which would ensure wholehearted, uncritical support of such crimes against humanity committed against Palestinians.
Before voting in favor of the bill, Del. Moore Capito (R- Kanawha, 35) agreed with Del. Kessinger that supporting the BDS movement—a movement aimed at ending apartheid, ethnic cleansing and crimes against humanity—amounts to, “engaging in hateful activity.”
Del. Mike Pushkin (D- Kanawha, 37) questioned whether the legislation might be a violation of the First Amendment of the U.S. Constitution, which states that, “Congress shall make no law (…) abridging the freedom of speech.”
“Have other states passed similar legislation?” Del. Pushkin asked Del. Kessinger on the House floor. “Have any of those been challenged in court over First Amendment violations?”
“Not over First Amendment violations—One of them was challenged in court, but then the state legislature went back in and put the cap of $100,000, and the lawsuit went away, which is why I included the cap in this piece of legislation,” Del. Kessinger explained.
However, a May 9, 2019 ACLU article explains:
“Congress just got yet another reminder that the First Amendment right to political boycotts is alive and well in the United States, and any legislative attempt to infringe on that right puts them squarely against the Constitution.
Last week a federal district court in Texas blocked as unconstitutional a state law that required government contractors to certify that they did not boycott Israel and would not do so over the course of their contract. With courts in Arizona and Kansas issuing similar rulings last year, that’s now three federal courts that have protected the right to engage in First Amendment-protected political boycotts—including boycotts of Israel and Israeli settlements.
The continued reminders by the courts that the right to boycott is protected under the First Amendment is a stinging rebuke of state legislators and members of Congress who have repeatedly attempted to strip the American people of that very right.”
Last year, a Texas appeals court did, indeed, toss a lawsuit challenging the state’s new legislation, which lawmakers amended just twelve days after the prior decision so that it, “no longer applied to the five people who sued.”
“[The] change meant the Texas law no longer included individuals who supported the BDS movement in an effort to pressure Israel to change its policies toward Palestinians. Today, the law applies only to businesses with 10 or more full-time employees that have a value of at least $100,000,” an article in the Austin-American Statesman explains.
Notably, though, the appeals court declined to weigh the merits of the statute.
Senior staff attorney for the ACLU of Texas, Edgar Saldivar said, regarding the decision: “The 5th Circuit ruling today simply affirms that the Legislature’s retreat means Texans whose livelihood is dependent on government contracts cannot be forced to disavow their First Amendment right to boycott. The government cannot impose ideological litmus tests or tell Texans what issues they may or may not support as a condition of hiring.”
The ACLU has said that lawmakers in Texas, Kansas and Arizona are “running scared” by amending legislation to add technicalities such as “10 or more full-time employees” and including only contracts with a “value of at least $100,000.”
“It’s easy to understand why legislators are afraid to stand by their laws in court,” ACLU attorney Brian Hauss writes. “These anti-boycott laws are obviously unconstitutional. The Supreme Court has unanimously recognized that the First Amendment protects the right to boycott. Anti-boycott laws have a terrible track record in court. And several of the country’s most prominent First Amendment scholars have declared twice now that these laws are ‘plainly unconstitutional’ because they are ‘clearly directed at the suppression of speech with which the state disagrees.’”
Additionally, just today (Monday), a federal judge in Georgia issued a 29-page decision that Georgia’s anti-BDS law violates the First Amendment after it was used to revoke journalist Abby Martin’s invitation to speak at Georgia Southern University when she refused to say she does not support BDS.
District Court Judge Mark Cohen writes that the law, “prohibits inherently expressive conduct protected by the First Amendment, burdens Martin's right to free speech, and is not narrowly tailored to further a substantial state interest (…) Even assuming that Georgia's interest in furthering foreign policy goals regarding relations with Israel is a substantial state interest, Defendants fail to explain how Martin's advocacy of a boycott of Israel has any bearing on Georgia's ability to advance foreign policy goals with Israel.”
Georgia lawmakers also introduced last year HB 1058, which uses the same language as Del. Kessinger’s legislation in West Virginia, and would “amend Georgia’s 2016 anti-boycott law (Act 378) to exclude individuals and contracts less than $100,000 from the prohibition on state contracts with entities that engage in boycotts of Israel or territories controlled by Israel.”
Below is Martin’s statement from Monday regarding the court’s recent decision, in which she states the time “has never been more urgent to advance the BDS movement against the Israeli regime”:
After being misinformed by Del. Kessinger, Del. Pushkin also voted in favor of the bill and said that he firmly opposes the BDS movement and “love[s]” the state of Israel.
“When this bill came up in committee, I actually opposed the bill, and I’ve looked at it with an open mind and actually did some research, and it’s held up in other states,” Del. Pushkin said. “I also vehemently disagree with the BDS movement. Their stated mission is the elimination of the state of Israel, and I couldn’t disagree with that more. I love the state of Israel. I love it because it has been a safe haven for people who have been persecuted because of their religion, so I’m going to support the bill. But I also feel that we should support the idea behind the state of Israel, which is protecting religious minorities. I am against discrimination of all kinds.”
Del. Chris Pritt (R- Kanawha, 36) is one of two Republican delegates who chose not to vote either for or against the legislation. On the House floor, Del. Pritt stated his concerns that the bill is a blatant violation of the First Amendment.
“There have been court cases that I’ve researched that have said political boycotts are a form of political speech,” Del. Pritt said. “If you go back into our history, there have been political boycotts in the south against segregation that have been found to be protected speech. So, let’s say we had the state of California say that if you do business with Chick-Fil-A, then you can’t do business with California—or let’s say you have a bill that says that if you do business with people who refuse to make a cake for a gay wedding, then you can’t do business with the state of California—All of those sorts of things would run afoul of the Constitution.”
Del. Pritt clarified that he does not oppose the state of Israel and suggested that lawmakers pass legislation honoring former President Donald Trump for his work with Israel.
“I’m a big supporter of Israel—I do not support the movement to boycott them—but I think this bill is misplaced. I think it’s well-intentioned, but misplaced,” Del. Pritt said. “I actually think we should pass a resolution that says, ‘Donald Trump is the greatest hero to Israel in the history of the world.’ We should pass a resolution along these lines talking about all the great things Donald Trump has done for the state of Israel. But I think this bill is a violation of the First Amendment.”
A recent article by West Virginia Mountain Party Communications Director Robert Smith states that the near-unanimous passage of the “Anti-Discrimination Against Israel Act” is representative of a larger political dynamic in West Virginia.
“Disappointingly but not surprisingly, only one Democrat Delegate opposed HB 2933, which was never drafted with the intention to combat discrimination. Replicated in over 30 U.S. states, the objective was always to squelch dissent and uphold Israel’s apartheid policies,” the article states. “HB 2933’s passage in the House with only one ‘Nay’ vote and unanimous support in the Senate is a blatant reminder that the [Democratic] Party, once again, fails to serve as effective opposition to assaults on constitutional freedoms and human rights. The members of the West Virginia legislature at the present time are—at best—tone deaf to the conditions facing oppressed peoples around the world, but most likely are woefully ignorant of geopolitics and International law.”
On the House floor, Del. Kessinger stated: “Hopefully this can be a conversation starter for the future. I would like to make sure that state-sponsored terrorists and other organizations who have no desire to benefit America—but instead to slaughter their own people—cannot do business with the state of West Virginia.”
Below is a link to a list of organizations working to ensure the human rights of Palestinians:
https://muftah.org/organizations-working-in-palestine-that-need-your-support/#.YKwSl2ZKhZ3
A link to “Palestine 101,” a 6-part introduction to Palestinian history:
https://decolonizepalestine.com/introduction-to-palestine/
A link to “BDS 101”:
https://decolonizepalestine.com/intro/bds-101/
A link to “5 Actions you can take to support Palestinians”:
https://bdsmovement.net/news/outraged-Israels-crimes-against-palestinians-5-actions
The West Virginia Holler is an affiliate of The Tennessee Holler and is powered, in part, by West Virginia Can’t Wait.
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