First Amendment gets frozen out as US politicians threaten to lick Ben & Jerry’s

Ben & Jerry's has taken a stand for Palestinian rights, but US politicians want to damage the company in response (Rafael Ben-Ari - Chameleons Eye)

Michael F. Brown

The Electronic Intifada  /  July 29, 2021 

Israeli Prime Minister Naftali Bennett quickly united Republicans and Democrats in the US last week when he said that Israel would “act aggressively” against Ben & Jerry’s.

Anti-Palestinian US politicians are now racing to punish an ice cream company for announcing it will stop selling its product in illegal Israeli settlements.

The First Amendment be damned.

Ben & Jerry’s may have to add to its much-loved free cone day with a free lesson on the First Amendment and how it works, perhaps teaming it with protected speech on the human rights abuses Israel carries out against Palestinians.

Oklahoma Senator James Lankford could receive the first lesson.

Lankford, a Republican, jumped to the front of the line with his call for shutting down sales of Ben & Jerry’s not just in state-operated facilities but in the entire state, a prime example of right wing cancel culture working against free speech and efforts to advance equal rights for Palestinians.

Lankford appears to view all of the occupied West Bank as part of Israel. That’s not, however, the position of the US government.

The American Civil Liberties Union responded to Lankford’s “half-baked” tweet by noting the senator could use a “First Amendment refresher.”

Apparently feeling pressure, Lankford did try to walk back the part of his statement about private sales in the state.

The ACLU tweet was retweeted by Anuradha Mittal, chair of the independent board of directors of Ben & Jerry’s. She did not respond to several questions from The Electronic Intifada, including one asking how confident she is that the company won’t back down as Airbnb did in 2019 following an initial decision to delist rental properties in illegal Israeli settlements.

There is a profound danger of a stand-down.

Newcomers to efforts to advance Palestinian rights too often are not prepared for how hard the punch back is likely to be, nor do they quickly learn to play offense by highlighting the profound anti-Palestinian racism of the groups and politicians – Republicans and Democrats alike – attacking them. New participants are vital, and increasingly contributing, but they should be forewarned that the going will be made difficult by Israel and allies.

Ben & Jerry’s with its longstanding commitment to social justice may prove to be different. Time and community support will tell.

While supporting Ben & Jerry’s decision, activist groups want the company to see the bigger picture that illegal settlements do not exist in a vacuum but are actively funded by the Israeli government. Consequently, Israel is responsible for the violation of international law, and divestment should not just be in the occupied West Bank, but from Israel itself for financing settlement activity.

Bennett Cohen and Jerry Greenfield, who founded the company together but “no longer have any operational control,” don’t seem inclined to grasp this broader point. In a guest essay on Wednesday in The New York Times that does raise important concerns about the Israeli occupation, they noted “the company drew a contrast between the democratic territory of Israel and the territories Israel occupies.”

This fails to recognize the undemocratic expulsion of hundreds of thousands of Palestinians over the decades and the fact that Israel’s apartheid policies in the occupied West Bank are fashioned in Israel by the country’s politicians and are viewed by human rights organizations as extending into Israel too.

Cohen and Greenfield’s position distinguishing the occupied territories from Israel, even as it’s braver than that of most US politicians, falls short. It’s akin to denouncing the apartheid South African government’s actions in the Bantustans while ignoring the rest of the discrimination and the fact that fault rests with the government.

Congresswoman Rashida Tlaib is one leader pushing for more to be done, pointing out recently that “organizations funding illegal Israeli settlements currently get tax exempt status, in clear violation of international law and US federal tax law.”

The Michigan congresswoman called on Treasury Secretary Janet Yellen “to enforce US law and end these organizations’ 501(c)(3) status.”

Such measures are long overdue. Repeated calls for action have, however, gone nowhere.

Tlaib’s involvement suggests the left may be getting more serious about going on the offensive to highlight the myriad ways that anti-Palestinian racism is tolerated and promoted in the US.

Defenders of the Israeli occupation, many of whom misleadingly claim to be two-state supporters, have been out in force vilifying the Ben & Jerry’s decision and definitely not saying a word about the boycott, divestment and sanctions movement’s promotion of equal rights for Palestinians.

Other states

Thomas DiNapoli, the state comptroller for New York, and Liz Gordon, the state’s executive director of corporate governance, also swung into action on Friday against Ben & Jerry’s.

Florida Governor Ron DeSantis, a Republican, also jumped to the defense of Israel’s illegal settlements, saying in a letter his state “does not tolerate discrimination against … the Israeli people.” But many people in Israel, particularly Palestinian citizens of Israel, support the move by Ben & Jerry’s.

In his letter to Ash Williams, executive director of the State Board of Administration of Florida, DeSantis called for Ben & Jerry’s and parent company Unilever to be placed immediately on the “Continued Examination Companies that Boycott Israel List.”

He also initiated the process for placing Ben & Jerry’s and Unilever on the “Scrutinized Companies that Boycott Israel List.” The names of both lists obscure the underlying reality of denying support for freedom and equal rights to Palestinians. DeSantis urged this action to prevent the state’s acquisition of Unilever assets consistent, mind you, “with the law.”

In the southern US all sorts of state-sanctioned racist crimes have been carried out consistent with the law against people of color. Blocking efforts to advance Palestinian freedom would be just the latest, only this time it’s not just a southern phenomenon but a widely ranging one that includes Texas, New Jersey, Illinois and New York.

States are quite eager to line up to discriminate against Palestinians in what DeSantis refers to in his letter as “Judea and Samaria.” This sort of language gives his bigotry a false suggestion of religious authority.

But however he codes it, he’s still doing his utmost to deny Palestinians equal rights.

Washington complicit

The anti-Palestinian racism of the Biden administration also continues.

Last week, Ned Price, the State Department spokesperson, failed to stand up for Ben & Jerry’s during his press conference and in the face of overheated language from Israeli politicians.

Price claimed twice that the BDS movement “unfairly singles out Israel.”

He didn’t explain why dispossessed and occupied Palestinians should be required to focus their attention on North Korea or some other issue at the same time.

It’s an ignorant argument Price put forward. But it’s dredged up repeatedly to move the conversation away from the crux of the matter: Israel is flagrantly discriminating against Palestinians and receiving billions in US military aid every year while doing so.

Even now the debate is being turned to allegations of anti-Jewish animus motivating Ben & Jerry’s and its anti-racist board rather than to the reality of anti-Palestinian discrimination within occupied Palestinian territory and Israel.

Price also noted that the US would, “consistent with the First Amendment rights of the American people, always work to be a strong partner to Israel and work with Israel to counter efforts to delegitimize it around the world.”

Meera Shah, senior staff attorney at Palestine Legal, pushed back on the free speech claim. “Price’s statement serves only to trample on the First Amendment rights he claims to uphold – just like the unconstitutional anti-boycott laws adopted by many states.”

She added, “It’s disturbing to have Israeli and US officials join forces to crack down on the time-honored tactic of boycotting for justice. This is both a dangerous and distracting effort to suppress growing dissent against Israel’s violations of Palestinian rights.”

And, as Glenn Greenwald tweeted, “All federal courts to rule on these anti-BDS laws have ruled them unconstitutional because the state can’t punish individuals or corporations for their speech or activism in protest of Israel.”

Greenwald also commented on the fact that a few years ago New York Governor Andrew Cuomo, a Democrat, “ordered a boycott of both Indiana and North Carolina – two American states.”

Cuomo, it is worth noting, took this action against Indiana and North Carolina when they were violating equal rights for the LGBTQ communities in those states. Yet in this instance, with Israel, his state is preparing to take action precisely to prevent equal rights for Palestinians.

In other words, if New York goes through with divesting itself of holdings related to Ben & Jerry’s, Cuomo will have helped set up a system in which he’s for equal rights some of the time so long as it doesn’t require Israel to extend such rights. By now, however, this shouldn’t be surprising as Cuomo has enthusiastically embraced anti-BDS efforts since at least 2016.

Shah also pointed out to The Electronic Intifada that unlike contract prohibitions which have been found unconstitutional by federal courts, the investment prohibitions that states such as New York and Florida are pursuing “encourage McCarthyite blacklists based on political positions. While these types of anti-boycott laws haven’t been tested in court, they raise constitutional concerns in that they are similarly intended to punish and chill protected expression in support of Palestinian rights.”

There is also an important distinction, she says, between calls to divest in support of justice and equal rights and fundamentally different calls to divest or take other coercive state action in order to silence calls for justice.

Right now, having learned very little from the civil rights movement and anti-apartheid campaigns, American officials are using their clout to impede efforts to secure vital rights for Palestinians.

Nevertheless, the Biden administration would rather stand with Israel than a Vermont-founded company beloved by millions of ice cream eaters and, I suspect, particularly appreciated by the left wing of the Democratic Party.

Continued Democratic Party support for Israeli apartheid threatens to rip the party apart. A political party can’t credibly claim to be against racism but then fund anti-Palestinian racism while conservatives in the party accuse those demanding action of anti-Jewish bigotry.

Unsurprisingly, organizations such as the Anti-Defamation League, known for decades for anti-Palestinian activities that cut against civil rights protections, are also supporting the Biden administration’s stance.

Jonathan Greenblatt, the ADL’s CEO, tweeted on Tuesday his satisfaction that “Unilever unambiguously rejected BDS,” again establishing that the ADL doesn’t support Palestinian-led efforts to end the Israeli occupation and secure equal rights. It’s also striking to see in the Unilever letter cited by Greenblatt how the company falsely gives the impression that the BDS movement promotes anti-Jewish activity while making no acknowledgment of the discrimination Palestinians face.

The progressive wing of the Democrats, however, understands the grassroots energy and excitement around the Ben & Jerry’s decision and isn’t backing down.

What’s fascinating, however, is the emptiness of some of the pushback. This is the first response I saw to Congresswomen Rashida Tlaib and Cori Bush:

It’s precisely the same argument I recall being made against pushing for divestment from apartheid South Africa in the 1980s.

Fortunately, writer and artist Eli Valley points to the conservative Heritage Foundation making a similar argument in 1986 claiming that President Ronald Reagan was right that sanctions wouldn’t work in apartheid South Africa and would most hurt the very people they were designed to help. The Heritage Foundation, much like the appease-Israeli-apartheid crowd today, insisted that “Blacks would suffer most” due to sanctions.

That line of thought didn’t work out well for the Heritage Foundation.

Certainly nobody looks forward to Palestinians possibly losing jobs, but the reality is that such measures put economic pressure on Israel to at long last extend equal rights to Palestinians and end the occupation. The economic prospects of Palestinians would be advanced if they weren’t forced to live with inferior rights and subjected to loss of land and homes due to discriminatory Israeli laws.

Ben & Jerry’s, if more widely joined, could put tremendous pressure on Israeli leaders and make there be a price for apartheid policies.

It’s that fear of a growing BDS movement that is leading Israeli leaders and their US allies to mount such a strident response.

The Conference of Presidents of Major American Jewish Organizations along with Christians United for Israel, led by the anti-Palestinian and anti-Jewish John Hagee, wrote Texas Governor Greg Abbott with their concerns about Ben & Jerry’s. Suggesting that they were speaking on behalf of Conference members such as Americans for Peace Now, the letter writers urged the state to consider divesting from Unilever while asserting that the BDS movement’s “ultimate goal” is “to end Israel’s existence as a Jewish state.”

BDS seeks an end to the Israeli occupation, equal rights for Palestinian citizens of Israel, and the right of return for Palestinian refugees. These goals can be accomplished via one state or two.

It is true that BDS activists do not believe Israel should be a Jewish state in which by definition Jews have superior rights to Palestinians. But this is akin to saying that racial justice advocates do not believe the US should be a white Christian state in which white Christians hold superior rights.

Urging equal rights is very different from urging support for an ethno-nationalist state.

Media coverage

Media covering the Ben & Jerry’s story have focused very heavily on the anger of Israeli leaders rather than giving space for Palestinians to express their views.

I never did hear back from The New York Times when I wrote to the paper regarding anti-Palestinian bias in its Ben & Jerry’s article – and about the correction needed to the claim that the wall separates “Israel from much of the West Bank.” In fact, the barrier largely runs inside the West Bank and not on the armistice line.

Not a single Palestinian was named and quoted in the article. Bennett and Member of Knesset Benjamin Netanyahu, however, were both quoted.

Bennett called Ben & Jerry’s the “anti-Israeli ice cream” with no mention from The New York Times of the large Palestinian population within Israel and their views on the decision.

The Ben & Jerry’s Israel vendor was quoted by the newspaper as stating: “We will continue to sell all over Israel!” No clarification was provided that the use of “all over Israel” means that the expansionist vendor regards the occupied West Bank as part of Israel.

The right wing Washington Free Beacon misrepresented basic geography in describing Ben & Jerry’s decision. The Beacon claimed that the ice cream firm had opted to boycott “Israel’s West Bank and East Jerusalem.” In fact, these are occupied territories.

Tellingly, these are the allies that reactionary Democrats are making in their fight against Ben & Jerry’s and equal rights for Palestinians.

Michael F. Brown is an independent journalist