On July 6, just before PEN America published its report addressing the cultural boycott of Israel, the organization made a small yet meaningful adjustment to its stance on boycotts. Nearly two decades earlier, PEN America had crafted language opposing the academic boycott of Israel, making it unique among PEN chapters in taking a policy against a significant form of political expression. That stance stood unmoved for nineteen years, and the shift announced that day was framed as a clarification of a policy that may have been too vague or difficult to define.
When I inquired about PEN America’s boycott policy, I had long maintained that while the group opposed boycotts, it nonetheless defended the right to participate in them. The updated policy reveals, however, that this was not truly the organization’s practice or stance. At best, the organization defended writers in certain circumstances, and only within certain jurisdictions, from retaliation rather than from harm.
If the difference between these stances seems minor enough to argue about, that is part of the point. Who can reliably distinguish between defending the right to boycott and defending someone from retaliation for taking part in a boycott? Or between “assiduously defending” someone and simply defending them, or protecting them from punishment for their choices and beliefs—or defending them from punishment altogether? A few extra words here, a few fewer there—and at bottom, most people are probably too trusting or indifferent to notice the distinction.
That particular breed of pseudo-advocacy, cloaked in ambiguous legal phrasing, has been a PEN America hallmark for over a decade. The careful parsing of language has repeatedly produced a veneer that makes its impact and meaning hard for critics and supporters alike to discern. That kind of opacity would be problematic for nearly any organization with a similar remit. For this version of PEN America, that ambiguity is more than a mere trait; 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 might assume, for instance, that a free-speech group would vigorously defend the right to boycott, given that boycotts are protected speech under the First Amendment. That assumption in turn makes it easier to mask the organization’s alleged hypocrisy and dishonesty—PEN America claiming to defend your rights while, in practice, not doing so—and to permit those who wish to cloak the organization’s bigotry to pretend it is equitable.
For lawyers working to defend and expand anti-BDS legislation in the courts, PEN America’s updated stance on boycotts is clarifying. There is no right to protection from retaliation by private individuals or institutions; such protection extends only to the government. Since the Eighth Circuit upheld Arkansas’s anti-BDS law as constitutional, PEN America now has just enough cover not to provide a defense to anyone.
The removal of even that minimal option for defense, given the stature of an organization like PEN America, matters. Our rights erode slowly, through laws and policies that initially appear radical, later become familiar, and, with time, may no longer seem as troubling once legally absorbed. PEN America understands this process perhaps better than most.
The boycott policy first surfaced in an unofficial form a year earlier. That informal stance, however, carried four crucial words: “assiduously” and “choices and views.” By dropping them, the current policy can at best be described as possibly—maybe—even willing to defend someone facing government retaliation for advocating a boycott, so long as they do not participate. If they participate, the outcome is, in effect, unfavorable.
The erosion of free expression rights becomes easier when an organization like PEN America lends its consent or guidance. While the new boycott policy may be one of the clearest signs of PEN America’s tolerance for curbing speech on matters involving Israel, there is also a decade of silence around anti-BDS legislation—silence that the organization has repeatedly tried to defend through a similar exercise in language and reasoning.
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 against the bill was less one of opposition than guidance. The organization suggested that the measure—which could levy up to a million dollars in penalties on individuals who boycott Israel—“if it is to be considered… must be revised.” The statement further hinted that boycotts against Israel might not be protected speech and then explained the precise legal mechanism the bill could alter to prevent the boycott without violating the Supreme Court. The closing line—“many expect that this bill will be rewritten to address those concerns”—read as a forecast more than a caveat. Senator Benjamin Cardin subsequently introduced the revised version. The director of PEN America’s Washington, D.C. office at that time later became the senator’s senior foreign policy adviser until retirement.
All of this, of course, serves as backdrop to the central event: the report itself. Readers might not be particularly attuned to the legal arguments used to justify anti-BDS legislation, but PEN America and its donors certainly are.
The narrative presented in the report is entirely controlled by the organization—it frames experiences and curates voices, and it is not notably 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 may regulate. The piece’s title, “A Silent Moratorium,” is the opening salvo in support of that claim. BDS is framed not as expressive speech aimed at policy change but as a passive, non-expressive economic instrument that affects writers here and in Israel, as evidenced by sales or translations, however weak the data and reasoning behind those claims may be.
The report also continues PEN America’s ongoing effort, begun in 2016, to equate Zionism with Jewish identity—an argument central to Title VI civil rights claims that portray BDS as harassment. The document concedes that no boycotts have targeted individuals, yet proceeds in later sections to argue against that concession, effectively canceling it out. Disparate-impact laws make clear that conduct presented as fair but that actually discriminates can still be unlawful. An article on anti-BDS legislation from the Harvard Law Review notes that proving a substantial disparate effect requires demonstration of causation, not merely statistical disparity. Whether thirty interviews with Jewish and Israeli writers suffice to meet that threshold remains unclear, though it is a beginning.
PEN America and its defenders presume that the true intent of this report—and much of its work over the past decade—will escape scrutiny. This represents a morally questionable form of advocacy, indifferent to the harm done to free expression and to the legacy and mission of PEN America. The report is but one piece of a broader chain, and it will almost certainly not be the last.
More statements, reports, and blog posts will follow, employing the same semi-covert tactics designed to sustain a culture of suppression rather than to defend against it. PEN America and its most devoted backers gamble that most people won’t notice how this advocacy operates, or will stay silent out of convenience or fear. For years, writers with much to lose have risked reputations and livelihoods to oppose this work. Jewish and non-Jewish authors alike have faced insults, doxxing, and accusations of terrorism or antisemitism. Yet they have persisted, because that is the bare minimum required of us.
Toni Morrison, in fact, captured this idea more forcefully than most, placing the issue at the heart of her Nobel lecture: “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…
