On July 6, two days before its publication Report on the cultural boycott of IsraelPEN America made a subtle but important change in its position on the boycott. The organization developed language opposing the academic boycott of Israel nearly twenty years ago, making PEN America the only PEN chapter to have a policy opposing a significant form of political expression. That position had remained unchanged for nineteen years, and the changes of that day were presented as clarifications of a policy that was perhaps too vague and difficult to define.
When asked about PEN America’s boycott policy, I have long claimed that while PEN America opposed boycotts, the organization defended the right to participate in them. However, as the new policy made clear, this was not actually the organization’s practice or position. The organization, at best, protected authors with the right to protection from retaliation in some circumstances, and only in some jurisdictions.
If the difference between these situations seems so minor that it cannot be debated, that is partly the point. Who can tell the difference between protecting the right to boycott and protecting someone from retaliation for participating in a boycott? Or even better, who can tell the difference between “diligently defending” someone and simply defending someone, or protecting someone from punishment for their choices and ideas, or just protecting them from punishment? A few more words here, a few less words there – at the end of the day, most people are probably too trusting or indifferent to notice the difference.
That particular brand of pseudo-advocacy, hidden behind the disorganized language of law, has been a staple of PEN America for at least a decade. Time and again, careful analysis of language has provided a veil that has made it difficult for both its critics and supporters to understand the impact and meaning of its work. This kind of opaqueness would be a problem for almost any other organization with a similar mandate. For this edition of PEN America, that indiscretion is more than just an asset; It is a necessity.
When an organization like PEN America offers its consent or in some cases its guidance, it becomes too easy to take away our free speech rights.
For example, one would assume that a free-speech organization would vigorously defend the right to boycott, given that boycotting is constitutionally protected speech. This perception makes it very easy to hide the hypocrisy and dishonesty of the organization, for PEN America to claim that it protects your rights when it actually does not, and for those trying desperately to hide the organization’s bigotry to pretend that it is actually just.
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. The right to protections extends only to the government, and since the 8th Circuit upheld Arkansas’s anti-BDS law as constitutional, PEN America has enough coverage to provide no defense to anyone.
Removing even that slim possibility of protection from an organization of the size and stature of PEN America certainly makes sense. Our rights are gradually taken away with laws and policies that seem radical at first glance and then, with time and practice, become familiar and then perhaps not so troubling once they become legal. PEN America knows this better than anyone.
The boycott policy actually first surfaced a year ago. However, that informal policy included four important words: “diligently” and options and considerations. In removing them, what is now left is a policy that could be described in its most liberal form, presumably, prepared to defend anyone facing retribution from the government for calling for a boycott, that is, as long as they do not participate in it. If they do, well, tough luck.
When an organization like PEN America offers its consent or in some cases its guidance, it becomes too easy to take away our free speech rights. While its new boycott policy is perhaps one of the most clearly expressive displays 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 repeatedly tried to defend through similar turns of logic and language.
The report also continues PEN America’s work started in 2016 on linking Zionism to Jewish identity, a key argument used in Title VI civil rights claims to argue that BDS is persecution.
In 2017, when Congress proposed the Anti-Israel Boycott Act, PEN America’s statement opposing the bill was one of guidance, not opposition. According to PEN America, the bill, which would fine individuals up to one million dollars for boycotting Israel, “must be amended … if it is to be considered.” The statement goes on to suggest that boycotts against Israel may not actually be protected speech, and then explains the exact legal mechanisms that the bill could change to prevent boycotts of Israel without a detour to the Supreme Court. The statement’s concluding line, “Many expect this bill to be rewritten to address those concerns,” is closer to prediction than speculation. Senator Benjamin Cardin will actually introduce an amended bill as suggested. The director of PEN America’s DC office at that time will remain the senator’s senior foreign policy advisor until his retirement.
Of course, all this is background to the central event, which is the report itself. Readers of the report may not be closely familiar with the legal arguments used to justify anti-BDS legislation, but PEN America clearly is, and so are the donors who support this work.
The narrative presented in this report is completely controlled by the organization – it frames experiences and controls voices, and it is not particularly subtle in how it does so. Lawyers defending anti-BDS legislation have argued that BDS is not protected speech, but rather economic conduct that governments have the right to regulate. The article’s title, “A Silent Moratorium”, is the first of several attempts to support that claim. BDS is not expressive speech trying to change policies, but rather a silent, and therefore non-expressive, economic tool that is having an impact not just on American writers, but on writers in Israel, as evidenced by the number of books sold or translated, no matter how poorly researched and argued those statements are.
The report also continues PEN America’s work started in 2016 on linking Zionism to Jewish identity, a key argument used in Title VI civil rights claims to argue that BDS is persecution. The report acknowledges in one breath that no boycotts have targeted individuals and then proceeds to argue against that fact in the following pages, effectively nullifying the disclaimer. Disparate impact laws make clear that conduct that claims to be fair, but discriminates in practice, may still be illegal. An article on anti-BDS legislation Harvard Law Review Explains that proving disparity requires that, “a plaintiff must establish that the challenged practice Reason a significant disproportionate impact on a particular group; Statistical disparities alone cannot give rise to liability.” Whether thirty interviews with Jewish and Israeli writers are enough to meet that threshold is unclear, but it is certainly a start.
PEN America and its defenders believe that the true intent of this report, like much of its work over the past ten years, will remain unchallenged. This is the most unethical kind of advocacy, indifferent to our free speech rights and the damage it does to PEN America’s legacy and mission. This report is just one part of that series, and it certainly won’t be the last.
There will be other statements, reports, blog posts that contain similar semi-coded actions to perpetuate a culture of oppression rather than escape from it. PEN America and its most ardent supporters are betting that most won’t see how advocacy works, or will remain silent out of convenience or fear. Over the years, writers with much to lose have risked their reputations and livelihoods in protest of that work. Jewish and non-Jewish writers have been insulted and denigrated, labeled terrorists and anti-Semites. Yet they persist because what is expected of us is the least.
Of course Toni Morrison put it best, placing that charge at the center of her Nobel speech: “Oppressive language does more than represent violence; it is violence; it does more than represent the limits of knowledge; it limits knowledge. Whether it’s vague state language or the fake language of mindless media… whether it’s the lethal language of law without morality, or language designed for the alienation of minorities, hiding its racist spoils in its literary cheeks – reject it.” Must be known, changed and exposed.”
