The First Amendment Protects the Right to Boycott Israel

Earlier this week, the ACLU sent a letter to members of Congress opposing the Israel Anti-Boycott Act. The bill would amend existing law to prohibit people in the United States from supporting boycotts targeting Israel — making it a felony to choose not to engage in commerce with companies doing business in Israel and its settlements in the occupied Palestinian territories. Violations would be punishable by a civil penalty that could reach $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

The bill is aimed at advocates of boycotts targeting Israel, most notably the Boycott, Divestment, Sanctions (BDS) movement — a global campaign that seeks to apply economic and political pressure on Israel to comply with international law. Specifically, the bill sponsors intend the act as a response to the U.N. Human Rights Council’s 2016 resolution calling on companies to respect human rights, including in occupied Palestinian territories.

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

In fact, the right to boycott is one of the brightest stars in our constitutional firmament. The American Revolution was founded on boycotts against British goods to protest excessive taxes. John Jay led a boycott against New York merchants who engaged in the slave trade. And the Montgomery bus boycott of 1955–1956 was a major turning point in the struggle for civil rights in the Jim Crow South. In the 1970s and 1980s, colleges and universities led a widespread campaign to boycott and divest from South Africa, in protest of apartheid. In 2015, football players at the University of Missouri went on strike until the school addressed acute racial tensions on campus. And North Carolina’s law prohibiting transgender people from accessing restrooms and other facilities consistent with their gender identities sparked massive boycotts by businesses and individuals.

Boycotts are a form of collective action that allows ordinary people to make their voices heard. For precisely this reason, the Supreme Court has held that the First Amendment protects the right to boycott. The court’s landmark decision in NAACP v Claiborne Hardware Co. affirmed the constitutional right of NAACP activists to hold a mass economic boycott of white-owned businesses in Port Gibson, Mississippi, to protest the community’s persistent racial inequality and segregation. In ringing language, the court held that the boycotters’ exercise of their rights to “speech, assembly, and petition . . . to change a social order that had consistently treated them as second-class citizens” rested “on the highest rung of the hierarchy of First Amendment values.”

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

This is a proud constitutional legacy. Today, though, the right to boycott is under assault. Over the past several years, federal, state, and local legislators have introduced wave after wave of legislation seeking to stamp out boycotts and divestment campaigns aimed at Israel. One such law, passed earlier this year by Nassau County in New York, prohibits the county from doing business with people who support the BDS movement. As a result, Roger Waters of Pink Floyd fame could be banned from playing at the Nassau Coliseum in New York. Similar laws have been passed in Arizona and Kansas.

None of them comport with the First Amendment.

The Israel Anti-Boycott Act introduced in Congress goes a step further, threatening severe civil and criminal punishment against individuals who refrain from doing business with Israel because of their political opposition to its government’s actions. The bill amends two existing laws, the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which prohibit certain boycotts sponsored by foreign governments.

The bill would expand the application of those laws in a number of ways. It would expand the laws to prohibit boycotts called for by international organizations, like the United Nations and the European Union; it would threaten sanctions against people who boycott businesses operating in Israeli settlements in the occupied Palestinian territories; and it would prohibit even requests for information about companies’ business relationships with Israel and Israeli companies. This expansive language would likely chill a wide range of political activity in the United States directed at the Israeli government — activity that is constitutionally protected, regardless whether members of Congress agree with it.

A number of the bill’s sponsors were apparently surprised by the ACLU’s free speech concerns with the bill. Several of them have now expressed their intention to review the legislation with the ACLU’s civil rights and civil liberties concerns in mind. We hope they do the right thing by backing away from any bill that violates our First Amendment rights.

This post was updated to reflect the fact that $250,000 is not the minimum civil penalty for violating the law. Rather, the maximum civil penalty is either $250,000 or twice the amount of the money at issue in the alleged violation, whichever is greater.

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Anonymous

this is so stupid. legislation bought and paid for.

The law would be totally unconstitutional.

Kaydell

I agree the new law would be unconstitutional, but we've already had a similar law on the books since 1979.

It will take civil disobedience and/or political and court action to defeat this new, expanded law.

I'm pro-Israeli, but I'm calling my representatives in Congress and will start boycotting to exercise my civil rights so that I don't lose them.

Alison

This law, if actually passed, would be outrageous. It seems similar to the anti-protest legislation that started cropping up in January. I hope the ACLU fights this tooth and nail.

Anonymous

Boycotting Jews for defending themselves against 97 years of Islamic terrorism isn't outrageous?

Anonymous

That would be outrageous too, but that's not what the BDS movement is doing. It's beside the point, anyway: one is allowed to participate in even outrageous political speech in the US.

Anonymous

@anonymous "Boycotting Jews for defending themselves against 97 years of Islamic terrorism isn't outrageous?" You need to learn some history, it's more like: Palestinians trying to survive 97 years of colonization by people convinced an invisible man in the sky promised the land to them. Colonization continues to this day in the West Bank and Jerusalem. Israel is a country founded by terrorists, google Menachim Begin, Ben Gurion, etc. and find out for yourself. The Gaza strip is a modern day Warsaw ghetto, for people so quick to bring up the holocaust they should be ashamed. But the Talmud teaches goyim are animals so I guess that makes it OK.

AnonymousCanadian

It aslo protects the right to protest Islam, Jihad, terrorist, democrats, liberals, and Palestine

Anonymous

The ACLU is incorrect. The Constitution specifically gives Congress the power to regulate commerce. It has the power to penalize individuals who attempt to obstruct interstate and international commerce (which is the intent of these malicious boycotts) and to prohibit such activities by states, counties, municipalities, and corporations.

In this case, Congress is also doing good by prohibiting thinly disguised anti-Semitism and by preventing activities which would harm our fight against Palestinian terrorism.

The ACLU is on the wrong side of this issue. It should oppose the resurgence of anti-Semitism in this country and should also oppose attempts to aid the Palestinian terrorists.

Anonymous Too

Sad when Jewish folk use accusations of anti-Semitism to thwart criticism of Israel's mistreatment of Palestinian citizens. Not trying to minimize the real attacks on Israel by militants, but pressing down so hard on all Palestinians is not humane. Also, this default anti-Semitism accusation for any criticism of Israel unfairly places critics into the same camp as neo-nazi scumbags. Many of us who think the heavy-handed Israeli approach toward all Palestinians is too much are the same ones who will stand by your side if you are attacked. Don't marginalize us.

Anonymous

And who says I'm Jewish? I merely have great respect for -- no, I am in awe of -- Israel's perseverence in the face of constant harassment by terrorists on their borders and terrorist sympathizers here in the US.

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