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

No quite. As interpreted, the grant in the commerce clause to regulate commerce prohibits certain interference with interstate and international commerce. That means if a state passes a law that unreasonably restricts interstate or international commerce, it could violate the commerce clause. It has absolutely nothing to do with the right of an individual or company voluntarily choosing not to engage in and encouraging others not to engage in a specific form of commerce. That is protected free speech under the First Amendment.

KAB53

Pretty cheap argument , to turn every legitimate criticism of Israel into anti-semitism.
And pretty hypocritical, since so many of them and their supporters are always seeking boycotts of organizations who dare stand up to their particular prejudices. Remember the Disney boycott, the Budweiser boycott, the Nordstrom boycott, the Starbucks boycott ?

Anonymous

Sadder when people who hate Jews make false accusations against Jews and then don't want to be recognized for their anti-Semitism.

Anonymous

You are dead wrong. Anti-semitism is directed at individuals. Israel is a nation composed of thousands of people, many who are not Jewish. The boycott is directed at the nation not the individuals, therefore it cannot be considered to be anti-semitism.

Anonymous

The ACLU is right. You pinheads who think the ACLU are wrong, are wrong.

Kaydell

I agree that the U.S. Constitution does give the federal government the right to regulate interstate commerce, but I believe that to regulate international commerce would require a treaty -- not a mere statute. Further, the first amendment, protecting the freedom of speech and the freedom of religion is in an amendment that comes after the rest of the Constitution, giving the first amendment precedence over statutes and treaties authorized by the original text of the Constitution.

The first amendment trumps your statute.

If you wanted to give Israelis rights that were more important than our Bill of Rights, you would have to follow the procedure prescribed in Article V of the Constitution to make an even more recent amendment.

I am pro-Israeli. You could accuse me of anti-semitism but you would be wrong again.

Carl

No, you're wrong. The ACLU is right; this is a CLEAR violation of the Constitution.

But that is neither here nor there; as Zionists continue to attack American's who are exposing their apartheid state, they expose themselves to be the very people the true Jew haters say they are.

Still, I am encouraged by the number of people who have come out, starting to mobilize against this Zionist attack on the personal freedoms of people living in this country.

Whether this anti-constitutional bill passes or not, we will continue to call for and work for the boycott of Israel and we will continue to call for justice for the Palestinian people, even if we have to do it from a jail cell. We will NEVER give in to Zionism.

Tea

There's some misinformation here that I hope the author will correct.
"A civil penalty may be imposed on any person who commits an unlawful act described in subsection (a) in an amount not to exceed the greater of-
(1) $250,000; or
(2) an amount that is twice the amount of the transaction that is the basis of the violation with respect to which the penalty is imposed."

250k is NOT a minimum. In fact it's a civil penalty isn't even mandatory. I'm not saying I like the proposed bill; I'm just trying to set the record straight as I see it.

Carl

The BDS movement does not call for "the destruction of Israel" but even if they did it wouldn't be "anti-semitic" according to this new law, anyways. The law states that if you criticize other states the way you criticize Israel, then it is NOT "antisemitism". We, the US, have not only called for the destruction of many nations we in fact have destroyed many nations. We openly call for the destruction of northern Korea. Israel openly calls for the destruction of Palestine and they are actually in the process of doing just that. So according the

Recently, white racists across the country marched for some racist reason or another and received total support from the police and the state . As much as we hated it, they had every right under the constitution to espouse their idiotic message in public. That is how America is.

This is not Israel where mass murder, genocide, political repression, silencing of opposition through extreme brutality and the stealing of land is considered 'democratic'.

Anonymous

BDS is not anti semitic. The way successive Israeli regimes treat Palestinians is.

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