Why PEN America Will Not Defend You Against Anti-BDS Legislation

On July 6, two days before the publication of its report on the cultural boycott of Israel, PEN America made a subtle but important change to its position on boycotts. The organization had developed language almost twenty years earlier opposing the academic boycott of Israel, making PEN America the only PEN chapter to have a policy opposing a vital form of political expression. That position had remained unaltered for nineteen years, and the changes that day were presented as a clarification of a policy that was perhaps too vague and hard to define.

When asked about PEN America’s boycott policy, I had long claimed that while PEN America opposed boycotts, the organization defended the right to participate in them. As the new policy made clear though, that was not in fact the practice or position of the organization. The organization, at best, defended writers, in some circumstances, and only in some jurisdictions, from the right to protection from retaliation.

If the difference between these positions seems far too minor to quibble over, that is, in part, the point. Who can tell the difference between defending the right to boycott and defending someone from retaliation for participating in a boycott? Or better yet, who can tell the difference between “assiduously defending” someone and just defending someone, or defending someone from punishment for their choices and views or just defending them from punishment? A few more words here, a few fewer words there—at the end of the day, most people are probably too trusting or indifferent to note the difference.

That particular brand of pseudo-advocacy, hiding behind the muddled language of law, has been a PEN America staple for at least a decade now. Time and again the careful parsing of language has provided a veneer of cover that makes it hard for both its critics and supporters to discern the impact and meaning of its work. That kind of opacity would be a problem for almost any other organization with a similar mandate. For this version of PEN America, that indiscernibility is more than just an asset; it’s a necessity.

The chipping away of our free expression rights is made that much easier when an organization like PEN America offers its consent or in some cases its guidance.

One assumes, for example, that a free-speech organization would vigorously defend the right to boycott, given that boycotts are constitutionally protected speech. That assumption makes it that much easier to mask the organization’s hypocrisy and dishonesty, for PEN America to claim that it defends your rights, when in fact it doesn’t, and for those trying desperately to mask the organization’s bigotry to pretend as if it is, in fact, equitable.

For lawyers working to defend and expand anti-BDS legislation in court, PEN America’s new boycott position is clarifying. There is no right to protection from retaliation from private individuals or institutions. That right to protection extends only to the government, and since the 8th Circuit upheld Arkansas’s anti-BDS legislation as constitutional, PEN America has just enough coverage not to offer any defense to anyone.

The removal of even that minor possibility of defense from an organization with the size and stature of PEN America matters, of course. Our rights are chipped away slowly, with legislation and policies that at first glance appear radical and then, with time and practice, familiar and then perhaps not so disturbing once legal. PEN America knows that better than most.

The boycott policy had in fact made its first appearance one year earlier. That unofficial policy, however, included four critical words: “assiduously” and choices and views. In dropping them, what is left now is a policy that at its most generous could be described as possibly, maybe, willing to defend someone facing retaliation from the government for calling for a boycott, that is, as long as they don’t participate in it. If they do, well, tough luck.

The chipping away of our free expression rights is made that much easier when an organization like PEN America offers its consent or in some cases its guidance. While its new boycott policy is perhaps one of the clearest expressive demonstrations of its tolerance for restricting speech when it comes to Israel, there is also a decade of silence around anti-BDS legislation that the organization has tried repeatedly to defend through a similar twist of logic and language.

The report also continues PEN America’s work, begun in 2016, of conflating Zionism with Jewish identity, a critical argument in Title VI civil rights claims used to argue that BDS is harassment.

In 2017, when Congress proposed the Israel Anti-Boycott Act, PEN America’s statement opposing the bill wasn’t so much one of opposition as guidance. According to PEN America, the bill, which would have penalized individuals up to one million dollars for boycotting Israel, “if it is to be considered… must be revised.” The statement goes on to suggest that boycotts against Israel might not in fact be protected speech, and then explains the exact legal mechanism that the bill could change in order to still prevent the boycott of Israel without running afoul of the Supreme Court. The statement’s closing line, “many expect that this bill will be rewritten to address those concerns,” is closer to forecast than speculation. Senator Benjamin Cardin would in fact introduce the bill, revised as suggested. The director of PEN America’s DC office at the time would go on to become the Senator’s senior foreign policy advisor until his retirement.

All this of course is just backdrop to the central event, which is the report itself. Readers of the report may not be carefully attuned to the legal arguments used to justify anti-BDS legislation, but PEN America obviously is and so are the donors who support this work.

The narrative that is presented in this report is entirely controlled by the organization—it frames the experiences and curates the voices, and it is not particularly subtle in how it does that. Lawyers defending anti-BDS legislation have argued that BDS is not protected speech, but economic conduct that governments have the right to regulate. The title of the piece, “A Silent Moratorium,” is the first of many attempts to support that claim. BDS isn’t expressive speech trying to change policies, but rather a silent, and therefore non-expressive economic tool, one that is having an impact not just on US writers, but on writers in Israel, as evidenced by the numbers of books sold or translated, however poorly researched and argued those statements may be.

The report also continues PEN America’s work, begun in 2016, of conflating Zionism with Jewish identity, a critical argument in Title VI civil rights claims used to argue that BDS is harassment. The report acknowledges in one breath that no boycotts have targeted individuals and then proceeds in the following pages to argue against that fact, effectively canceling out the disclaimer. Disparate impact laws make clear that conduct that claims to be fair, but in practice discriminates, can still be illegal. An article on anti-BDS legislation from the Harvard Law Review points out that proving that disparity requires that, “A plaintiff must establish that the challenged practice caused a significant disparate effect on a particular group; statistical disparities alone cannot create liability.” Whether or not thirty interviews with Jewish and Israeli writers is enough to meet that threshold is unclear but it is undoubtedly a start.

PEN America and its defenders assume that the true intention of this report, like so much of its work over the past ten years, will go unchallenged. It is the most unethical kind of advocacy, indifferent to the damage inflicted on our free expression rights, and to the legacy and mission of PEN America. This report is just one part of that chain, and it will certainly not be the last.

There will be other statements, reports, blog posts that contain the same semi-coded acts employed to sustain rather than defend against a culture of suppression. PEN America and its most ardent supporters are betting that most won’t see how that advocacy works, or will remain silent out of convenience or fear. For years, writers with much to lose have risked their reputations and livelihoods in opposition to that work. Jewish and non-Jewish writers have been insulted and doxxed, have been called terrorists and antisemitic. They have persisted nonetheless because that is the least of what is required of us.

Toni Morrison of course put it better, placing that charge at the center of her Nobel speech: “Oppressive language does more than represent violence; it is violence; does more than represent the limits of knowledge; it limits knowledge. Whether it is obscuring state language or the faux-language of mindless media…whether it is the malign language of law-without-ethics, or language designed for the estrangement of minorities, hiding its racist plunder in its literary cheek – it must be rejected, altered and exposed.”