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Academics and commentators—including Crooked Timber bloggers—disagree over the American Studies Association’s decision to endorse an academic boycott of Israel. There should be far less disagreement over two bills recently proposed in New York’s and Maryland’s state legislatures. These bills prohibit colleges and universities from using state monies to fund faculty membership in—or travel to—academic organizations that boycott the institutions of another country. Designed to punish the ASA for taking the stance it has, these bills threaten the ability of scholars and scholarly associations to say controversial things in public debate. Because they sanction some speech on the basis of the content of that speech, they run afoul of the US First Amendment.

We write as two academics who disagree on the question of the ASA boycott. One of us is a firm supporter of the boycott who believes that, as part of the larger BDS movement, it has put the Israel-Palestine conflict back on the front burner, offering much needed strategic leverage to those who want to see the conflict justly settled. The other is highly skeptical that the ASA boycott is meaningful or effective, and views it as a tactically foolish and entirely symbolic gesture of questionable strategic and moral value.

This disagreement is real, but is not the issue that faces us today. The fundamental question we confront is whether legislatures should punish academic organizations for taking politically unpopular stands. The answer is no. The rights of academics to partake of and participate in public debate are well established. Boycotts are a long recognized and legally protected mode of political speech. The purpose of these bills, as some of their drafters admit, is to prevent organizations like the ASA from engaging in this kind of speech and to punish those organizations if they do—merely because the state disapproves of the content of that speech. For these and other reasons, the Center for Constitutional Rights and the New York Civil Liberties Union have declared their opposition to these bills.

The bills affect both of us directly as taxpayers (one of us lives in New York State, the other in Maryland) and as working academics. But they also potentially have much broader consequences. One hundred and thirty-four members of Congress have signed a letter condemning the ASA, and it is very likely that other state legislatures will take up similar bills, unless there is a public outcry.

We thus write not only to express our joint opposition to these bills but also to invite others who share our opposition to express it by signing below (those who want to debate the underlying questions rather than sign should not do so here, but in this separate discussion post). We encourage you to share this statement with colleagues in your departments and professional associations, to urge them to adopt it or their own statements, and to take the necessary actions to oppose this type of legislation wherever it may arise.

More immediately, we encourage readers who live in New York State or Maryland to contact their state representatives, and if necessary, governors. Contact information for New York can be found here and here; for Maryland, here. While initial reports from New York this afternoon are positive—due to a flood of phone calls, a key committee chair in the Assembly has temporarily pulled the legislation for reconsideration—the bill’s backers in the Assembly intend to pursue some version of it. It has already passed the State Senate. Hence the need for continued and consistent pressure in both states.

Update (February 6)

The Washington Free Beacon is reporting that a bill has been introduced into the US House of Representatives that would cut off federal funding to any academic institution that boycotts the State of Israel. Though this bill does not immediately affect the ASA, which relies on no federal funding, it goes significantly beyond the legislation introduced in Maryland and New York. And may well have repercussions for the ASA insofar as it defines an institution’s participation in the boycott to mean, among other things, that “any significant part of the institution” —perhaps an academic department that voted with the ASA?—is boycotting the State of Israel.

According to The Forward, leaders in the New York State Assembly are retooling the bill and planning on introducing it at some point in the future.

Second Update (February 7)

The bill’s sponsor, Peter Roskam, makes it emphatically clear that the legislation is not intended to prevent academics from engaging on boycotts in general, but instead to punish them for boycotting some states rather than others. From his statement:

bq. It is ludicrous for critics to go after our democratic friend and ally Israel when they should be focusing on the evils perpetrated by repressive, authoritarian regimes like Iran and North Korea.