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

Apparently so

Eli Samuel Goldman

My biological kids were raised as Jewish people until divorce in debi's case where she violated my rights because she had a lawyer and I was hospitalized. My son used to know his fingers and thumb in Hebrew before he knew it in English. Cantor now rabbi Goldbart can attest to this. We had pictures of his briss at cousin Sanford Epstein House. Pam and Nick went to Hebrew school Saturdays on Sahara, Debi tried to have an Orthodox Mikvah and they refused her. Suddenly she starts screwing goyim, changes HER religion six times depending on who she's with and my son is forced to go to church just as they forced christiwnity on the Native Americans by taking their kids. Cynth was a practicing Jew (though I always doubted her Judaism) and resented me for not taking her to Synagogue ever. She tooke to her mom's church once to make her mother be more accepting of me and they spewed anti semetic rhetoric there. Unlike me, Cynth tried to follow kosher rules and spoke me Hebrew than I do and knew more about my heritage than I do. Why was our daughters religion changed after Cynth died just to please relatives of Cynth who violated my rights as the surviving parent just because I was disabled, in extreme poverty and couldn't fight them on it? My daughter was JEWISH before she moved to Laredo and Cynth died. She went to Temple Beth Shalom with me six times and Cynth was mad I didn't bring her,but she was working. It wasn't a slight against Cynth, but she took it as one. Why has my Hebrew Mamita been turned into a goy?

Eli Samuel Goldman

We had a mezuzah on the door of our apartment in Vegas NV, when I was with Debi. Rabbis Harlig and Goldbart (when he was a cantor) remember me wrapping tiffillin at Israel independence day. Cynth had a Mezuzah on the door of two of her four apartments and I didn't technically live there.

Eli Samuel Goldman

Cynth use to kiss her fingers and touch the Mezuzah when she went inside sometimes. I'm born Jewish and I didn't even know why she did that.

Eli Samuel Goldman

By the way, "Rabbi" means "teacher." We haven't had preists in thousands of years. A "Cantor" is a religious singer that leads praises and song to lift up our hearts and souls in hope and joy, of sorrow, and remembrance to G_d.

Eli Samuel Goldman

Thanks to the violation of my/their rights my kids will never have their bat-mitzvah (age 12 Asia should have been learning/training for it and had it already) or Bar-mitzvah (Seth should have had it at age 13). My kids will never get to know cultural practices like hiding the affen koen, or trying the bitter herb (haroset) on Pesach (Passover) or letting Elijah the prophet in...

Eli Samuel Goldman

Asia was only a year old when we celebrated Passover last, Rick was very young. Pam, nick, and Seth were little. We celebrated once with Pam, Nick, and Seth at Cousin Sanford Epstein House, once with my dad, and once with Yosi and Yona. Asia, Cynth and Rick celebrated with me and a friend she met when she was looking into Hadassah.

Eli Samuel Goldman

In our AOL chats in 2000 Cynth talked about learning Hebrew and studying Judaism and you can read me arguing with her saying she isn't Jewish and doesn't believe and her telling me in chat I have no fucking idea what she believes in and not to be so judgemental just because I was born Jewish.

Eli Samuel Goldman

Cynths brother from Kentucky came to visit us in Laredo and gave her a dainty cross necklace. She snubbed him and threw it into a drawer with an attitude, and I told her she was being cold to him. And she told me I'm a hypocite and she thought she shouldn't wear it because she isn't Christian anymore. I told her she wasn't a "real Jew" and she told me I AM a "real asshole" sometimes.

Eli Samuel Goldman

In 1991 I met Gary Soncrant adopted son ...a very nice guy. He *thought* he was Jewish but didn't seem to know much about my people so I told him it's more than a religion it's a culture and a people and questioned his Judaism because he didn't know why he wanted to become jewish. I told him our people are the most persecuted in the world, and it isn't something most would choose unless they believe. He was studying to convert before I ever met him. Ask my ex wife and her biological father Gary.

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