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

While I would disagree with the idea of boycotting Israel, ACLU is correct on this one. You can't tell people they can't boycott. That's unconstitutional... unless they refer to SELLING. Now THAT would be discrimination in most cases. If ACLU were not total bias idiots, they would just link the actual act.

Anonymous

While I would disagree with the idea of boycotting Israel, ACLU is correct on this one. You can't tell people they can't boycott. That's unconstitutional... unless they refer to SELLING. Now THAT would be discrimination in most cases. If ACLU were not total bias idiots, they would just link the actual act.

Anonymous

We need a list of supporting legislators.

Anonymous

Thank you, yes lets see who they are.

Anonymous

First of all, this post misrepresents the proposed Act. Second, it lies about the worldwide campaign to boycott Israel.

Edward

Dan, that's not the point here. Americans have the right to boycott, just as we have freedom of the press. It doesn't matter whether you want to boycott Israel, Saudi Arabia, or Pawtucket, Rhode Island, or none of those. The government under an administration you support or not doesn't get to tell us what to do here.

Nora Gluck

Why is this not in the mainstream news? I am distressed that my Senator, Richard Blumenthal, head of the Judiciary Committee, is one of the sponsors of this bill. How are you working with Congress on this? How can you get this out to all the progressives (e.g. Bernie Sanders and others) and the many progressive causes
I and others donate to? I would appreciate talking to someone about this. Left messages at CT ACLU, but no call backs. What is one to do about this outrage?

David

Nora, The outrage is that the ACLU grossly misrepresents the bill. It does NOT limit freedom of speech. It does NOT prevent you for boycotting anyone. It simply amends an existing law (that has been held as constitutional) that prevents participation in unsanctioned boycotts called by a foreign country, to also include unsanctioned boycotts called by international organizations.

Anonymous

BOYCOTT, DIVEST & SANCTION ISRAEL!!!!. All countries of conscience need to boycott Israel, hurt them where it hurts the most, the pocket book. Thanks to Congress, I just came to know about the BDS.

Making boycotting illegal is illegal itself, its against Freedom of speech and freedom of choice, we can boycott whoever we want despite Israel buying our members of Congress.

Anonymous

I declare a Jihad on your boycott of Israel!

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