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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Someone's being paid to spam the comments section... good on the ACLU for defending our right to boycott.

Anonymous

Boycott Israel!!!!

Anonymous

I am glad to see the ACLU standing up for this fundamental right and I am interested in contributing. Will ACLU fight to overturn the Isreal anti-boycott laws that have been passed in the states of South Carolina and Illinois and New York since they are unconstitutional???

Eli Samuel Goldman

During the election on Admiral Blvd in Tulsa I fought as hard day and night against Trump's racism and hate, and encouragement of hate speech. As a Jewish person of part Ethiopian, Sephardic, Asian and likely Native American genetics I was victimized and horrified by all the hate against my people as well as women, the disabled (which I am also) and the destruction of my life by my own people to support the White Supremicist Masogynist Donald J Trump. It horrified me when people made racial remarks. My son Seth's people are Hawaiian, my Daughter Native American/Hispanic(plus my mix including Jewish), my son Rick Native American/Hispanic/Samoan. Yet my own people abused me all election and before defending Donald J. Trump furiously. Before the election the racists pitted my own people against me, and it got worse during the election while homeless. So let me thank just some of my own people who are Trump supporters who abused me the most on behalf of Trump all election. First, they fought for the right to be called racist names. They lockedmr even when I had plenty of money and was polite out in freezing storms, snow, fed me stuff that put me in pain, had police harrass me, stole my possessions, threw things at me, kicked me off the property no matter how nice I was, had me physically, verbally and mentally abused, and helped those that sided against them who backed the KKK. So now I'll name a few and give them what they fought me for. I had to oppose my own people of color who supported Trump who were abusing me on behalf of Trump. ---(Here is what you fought me to be treated like ma brothas and sistahs): At Burger King on Admiral there was this Jigaboo Nigger Jesus Freak Midget manager who kept abusing me and having people harass me as well as his crew who were supporting Trump because I guess he demanded his right to be called a Jigaboo Nigger Jesus Freak Midget. Even when I told him I'm physically disabled and in pain that Porch-monkey Midget Manager insisted on making rude remarks and abusing me, and smiling ear to ear feeling self satisfied every time the bigger harmed me. Thank G_d smart people like the manhe supported Trump won't rent to low-class niggers like him. A white whore of a bimbo girl who worked there with her Nigger boyfriend defended Trump and said they're voting for him, and later did. So they must love being called the names Trump encouraged everyone to say, and his people call freedom of speech. Some retard beggar family that used to hang out at Burger King has their drunk deadbeat oldest brother physically assault me several times. The wetback workers at Burger king defended Trump too. So here is what you fought against me so hard for...you fought for the right to be characterized as the criminal rabid-animalistic, lowlife, uneducated thieves you acted like to me, and you fought for your right to be called racist names under the guise of Freedom of Speech. Well I'm done trying to fight for your rights while you all and people like you (and I) abuse me to defend Trump. If you want a Trump-like response and world you get one Niggers and Dagos and jungle-fever-cracker-whores.

Eli Samuel Goldman

I will now ask the people of Tulsa to go into the Burger King on Admiral Blvd across from Mc Donald's and across from QT to be sure to thank the short stubby African American manager by calling him "Nigger" every time you stop in. Be sure to refer to his crew as wetbacks and niggers openly any time you pay for food. After all...he and they fought me all election and after for their right to be called those racist names.

Eli Samuel Goldman

The entirely African American, Native American, and Hispanic crew of Taco Bueno on Admiral Blvd were the MOST abusive and cruel to me of almost anyone during the election and were the staunches Trump supporters. So to the crew of that Taco Bueno who opposed me all election in the most cruel and illegal ways possible, even trying to accuse me of crimes while committing crimes against me. Congrats...you proved you are the criminal animals Donald J. Trump depicts you as despite how tirelessly I argued for your rights and against the negative depiction of people of color. So here's to you at Taco Bueno: when anyone goes into a Taco Bueno ( a company whose crew and managers most staunchly supported Trump) be sure to tell them "Thanks niggers, wetbacks and uncivilized animal indians.'

Eli Samuel Goldman

Oh, and there is a tall young African American gentleman with a dark patch over his face, a birth defect, who staunchly supported Trump...be sure to ridicule him for it as he and his crew ridiculed me for my physical disabilities.

Eli Samuel Goldman

In salute and deference to America's Trump supporters I'll do my best efforts to make as many hate speeches .....er....I mean exercise freedom of speech...as often as I can, for life.

Eli Samuel Goldman

Think of me as you would of one of those African American comedians whose entire routine is about rediculing white people and espousing clichés. Or one of those female comediannes whose entire routine is about how everything is wrong with me and her set is marketed as female empowerment. They can market my routine as white supremist, black supremecist, hispanic supremecist, native supremecist, mysogynist, asian supremicist, elitist and biggot empowerment!

Eli Samuel Goldman

We've all heard female comediannes whose entire routine is how everything is wrong with men touted as female empowerment. Well my routine is hate-monger empowerment! And from what I've experienced my whole life, almost everyone is a hate-monger. I didn't used to be, but I've decided to change.

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