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.

Add a comment (139)
Read the Terms of Use

D'israeli

Congress should implement a bill in regard to Israel in commensurate with trade restrictions as Iran. Neither have U.S. interests in their agendas.

David

I used to respect and support the ACLU. But the ACLU has (either deliberately or sloppily) misread the law and lied in describing it.

Please read Eugene Kontorovich's article "Israel anti-boycott bill does not violate free speech" at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/27/isra... for an objective explanation.

I don't know what could have motivated the ACLU to compromise their integrity with this letter. By issuing it, the ACLU has destroyed their creditability.

Htee

Allan Lichtman's book, The Case for Impeachment" clearly demonstrates the crimes Trump has committed. https://www.amazon.com/Case-Impeachment-Allan-J-Lichtman/dp/0062696823/r...

rxantos

Trump was elected on the AMERICA first platform. Not in the Israel first platform.

If he signs this, he will loose a lot of support.

Anonymous

ACLU position is deeply hypocritical. ACLU did not come to the defence of Jack Phillips, a Denver baker who refused to do business with gay couple. If economic boycott of whatever-you-may-disagree-with is a free-speech right, then Phillips' boycott of gays should be protected, whether you agree with him or not. Similarly, boycotts or refusal to do business with Blacks, Jews, Arabs, Asians or whomever else your bigoted views may hold in contempt should also be protected as freedom of speech. To avoid those, our laws permit freedom of speech but prohibit commercial boycotts and ACLU knows or should know that. Its position is not based on law but on simple extreme left politics.

amir

boycott Israel !!!!!!! The US goverment will not tell me what to do

Anonymous

Same as Germany in the 30th!
Find an excuse to exploit your hate to Israel.
How about the oppression of the many Arab countries around of their own people? In these countries you couldn't even go to court to complain...
What about Turkey?
Why are you so quite about it ?!!!

Ernie

This is incredible that they would even consider passing a bill supporting anti Israel boycotts. It would never survive a Supreme Court First Amendment challenge.

Anonymous

Dear Sirs/Mesdames:

I've long rooted for the ACLU and so when I received a fund-raising brochure today I gave it serious consideration. Nevertheless, I had heard a rumor that you were supporting the BDS movement and, on checking it out, found it to be true.
You certainly have the right to pursue any 1st Amendment cause you wish, but I must wonder about your priorities: Are there so few 1st Amendment issues that this one has such a high priority for you?
I too have priorities and while supporting the 1st Amendment is one of them, combating antisemitism ranks higher for me.

I'm afraid that I will be forced to exercise my constitutional rights by declining to financially contribute to your organization until such time as you decide to redirect your energies from fighting for BDS to fighting for, say, President Trump's right to a fair trial before he is strung up for treason.

Sincerely yours,
Steven Ager, M.D.

Pages

Stay Informed