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

BDS is very much anti-Semitic. Its leaders call for the destruction of the Jewish state, and they are attempting to do it through economics and intimidation.

Anonymous

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

Elliot Lepler

I have supported the ACLU for years and years. I thought you were on the right side way back in Skokie. I have contributed my dollars because I believe someone has to stand for the constitution
But the ACLU lost me to intersectionality. You have violated your mission with this position.
The bills in Congress expand on a current law that prohibits American companies from complying with the decades old Arab Boycott of Israel. It regulates commerce not speech. The ACLU did not complain about that bill when it went into law in 1979 and I do not find any previous complaint against the law since then.
The current bills extend that law to the UN Human Rights Council's new boycott.
It appears Jamil Dakwar has turned the organization against Israel. This mission creep seriously undermines the other important work the ACLU does.
This story by Brian Hauss is grossly misleading. BDS does not object to Israeli policy. The aim of the BDS movement is to undermine and eliminate Israel. A cursory reading of their material is all that is necessary to divine that position.
So the ACLU will not receive further support from me.
Calls in these comments to Boycott Israel demonstrate my point. Your pro-Palestinian friends are delighted. Those who respect the organization are grieving.
The ACLU should stick to its principles.
I am sorry to conclude that the organization has not done that.
Good bye.

Anonymous

"I love the ACLU until they disagree with me on one particular issue where I am completely bias... so good riddance!"

Cringe.

Anonymous

If you understand what the ACLU did at Skokie, I don't get what troubles you here. As an liberal American Jew and an ex-Zionist, I nevertheless have few illusions about Israel's neighbors, or how well a Palestinian State would govern itself. But I do know that as stupidly as the Palestinians have played this for 50 years, Israel has showed the world that they can be brutal and stupid too. If some people think that BDS will bring Israel to their senses, I think it's worth a try and of course it should not be criminalized. If I did not think that BDS was a good idea, I still think it should be legal. I believe in the Bill of Rights. The heavy hand of Aipac should be an embarrassment to all American Jews who have been well served by the liberties of the Unites States.

Eli Samuel Goldman

It is my understanding the Democratic Party left me in the hands of my enemies, a party so corrupt that they will let the worst criminal in our country represent them and become president through crime. Showing once again that the Democratic Party only gives a shit about certain *preferred* people and I'm not on the list. That's OK, Republicans are so fucking stupid that when they were persecuting me and harming me they thought making it impossible for me to leave or get on my feet and excape Oklahoma would make me warm up to them. So they kept me here and abused me more all election and after and are stupid enough to think that will make me feel anything but hate for them. Truly stupid. They call it being a prisoner. And it's illegal to hold someone against their will, but Trump and the show and the state of Oklahoma have been doing that all along for years with me. Then they wonder why I hate them. They've kept me here to manipulate and abuse me against my will. Republicans and the Christians of Oklahoma have taught me how to truly hate, along with the help of my EXs and now I absolutely do hate them and Trump with a firey passion that cannot be extinguished. He has people do wrongs ASA way of life and is absolutely proud of it,and his supporters are damn proud of how ignorant and uneducated they truly are. There couldn't be a state prouder if their total and absolute ignorance of its people than Oklahoma. That's OK, most of you kids are taught by substitute teachers with no education, degree, lower pay than any state, and the piss poor education perpetuated, or never given, really. Oh, and Christian Science isn't science. It's a circular argument that passes for a substitute for actual study. None of the Christian Science people would believe in a science that points to only a religious doctrine if it was called Muslim Science, or Hare Krishna Science. They really need to rename it Religious Dogma Christian Science!

Eli Samuel Goldman

If I write a book in English that essentially says John F. Kennedy is God and did good works, but the Democratic Party had him killed, even though it was (hypothetically for example purposes) uncovered that everyone involved in his death was Republican, except a rumor that a Democratic Senator told of his whereabouts for money to the FBI. And I was a Relublican leader, and the book was then edited, changed, added to, translated into other languages, interpreted, and rewritten back into English 4 languages and dozens of changes and interpretations later...is it even the same book? What if I said all science is now based on the belief that John F. Kennedy is the one true God and source of all things? And cited what I interpret JFK believed about the creation of things and every subject in science? What if I said, "How DARE you question the one and only absolute truth of the almighty JFK!!!! Blasphemer!

Eli Samuel Goldman

Well that is the absurd crap Christian Scientist do. And as to teaching Christian Science in school with Science...we are SUPPOSED to have seperation of Church and State. I demand Jewish Science be taught in public schools too! I want to know why the Shema isn't sang in public schools? They sing it at Jewish schools like out in Summerlin NV and Hebrew Schools. Why are my rights as a Jewish person not being honored. Maybe my kids want to sing Shema in school. Trump claims to support Israel and G_d! "Shema...Is-ra-el...adoniiiiii...eluhaynuuuu...adoniiiiii...eee-had....". I mean, I have a birthright to also be a citizen as a Jewish person and I am of the people of the Jewish State on both sides. “שְׁמַע יִשְׂרָאֵל יהוה אֱלֹהֵינוּ יהוה אֶחָד”
Sh’ma Yisra’el Adoni Eloheinu Adoni Eḥad.
“Hear, O Israel! Adonai is our God! Adonai is One!

James Sweeney

Are we Israel's dog??? Is our government their dog???

Anonymous

You only wish you had an IQ as high as a dog's.

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