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.

View comments (141)
Read the Terms of Use

Eli Samuel Goldman

I never claimed to be a perfect person. I get judgemental about thing too at times, like everyone else. But I try to recognize and correct my mistakes.

Jk2017

People have the right to disagree with any of US foreign policies and express their opposition in protests and boycotts. US government can not force the people to support Israel or to do business with Israel as a favour. Whatever is applicable to the people also applies to companies. They can not be forced to doing business with any specific country.

Anonymous

Why don't you refuse service to someone based on their gender, race or sexual preference and try the "right to disagree" argument.

Carl

Strawman argument.

The boycott is CLEARLY aimed at Israel's apartheid state and is clearly stated on BDS's page. Boycotting a COUNTRY because of its vast array of human rights violations is in NO WAY the same as discriminating against someone b/c of their race, religion, etc.

Jk2017

People have the right to disagree with any of US foreign policies and express their opposition in protests and boycotts. US government can not force the people to support Israel or to do business with Israel as a favour. Whatever is applicable to the people also applies to companies. They can not be forced to doing business with any specific country.

Eli Samuel Goldman

One thing this whole experience starting in Las Vegas is that noone teaches hate better than Christians, and especially political or religious leaders. In Claremore they said over RSU because I had kind things to say about my EXs, "we didn't want you to fix yourself." But, I wasn't broken, except physical disability. I had the tendency to fall in love with broken people as a caretaker personality trait. Oh, and I didn't consider Cynth a real Jew because I felt she was getting into Judaism for me not due to exploring her beliefs. The only right reason to convert to any religion is belief in that religion in my views...which haven't changed. Now let's talk about Trump policy: Trump believes that the elderly and disabled should be worked at whatever low paying job they can get. He thinks experience is important. So do I. He claims to support the war and says he supports Veterans, and says he wants people off the system of social security and to raise the age limit. He believes most disabled and elderly can and should work. He believes in necessary casualties if war and that winning at all costs is the idea. His veteran supporters say they were proud to have served and would do it again if they could. So let's go with their and Trump's beliefs and send all these experienced Veterans disabled or not out to the war front to let them proudly serve again and get them off social security. Surely even a veteran with no legs in a wheel chair can sit there firing a pistol or push the launch button on a bomb. The ones with a walker can draw fire away from our younger more able bodied soldiers. And the experience of partaking in war again utilizing their experience should be a welcomed relief from the bottom of safety and peacetime. Plus, as Trump knows they nolonger pay into the tax system much and are a drain on our valuable resources that could be used to buy weapons. In fact if we send welfare mothers and other drains on the system out to the front we can go with Trump's no child labor laws stance and put their kids to work manufacturing guns and bombs assembly line style. Drug addicts as Adolph Hitler knew make excellent soldiers. Hitler had amphetamines like meth invented for his soldiers to keep them awake, alert longer, and numb to the emotional effects of war and killing. We can send all our drug addicts out to the front lines and clear out our jails, prisons, and rehab institutions, reduce drug related crime, and the tax drain on the system. Rather than get them off drugs we provide them with ample morphine like in the civil war, and amphetamines like the Nazis did and turn them into heartless alert killing machines for G_d and America. Yaaay. More of our problems solved thanks to Trump. And as an added bonus we will have surplus funds, reduce unproductive population, crime, and more money will be spent on the middle class and wealthy...the people who have the money to be the best consumers and infuse big business with more money. Yaaay Donald J. Trump...yaay.so many problems solved by the Trump perspective.

Eli Samuel Goldman

Let's talk about Trump policy: Trump believes that the elderly and disabled should be worked at whatever low paying job they can get. He thinks experience is important. So do I. He claims to support the war and says he supports Veterans, and says he wants people off the system of social security and to raise the age limit. He believes most disabled and elderly can and should work. He believes in necessary casualties if war and that winning at all costs is the idea. His veteran supporters say they were proud to have served and would do it again if they could. So let's go with their and Trump's beliefs and send all these experienced Veterans disabled or not out to the war front to let them proudly serve again and get them off social security. Surely even a veteran with no legs in a wheel chair can sit there firing a pistol or push the launch button on a bomb. The ones with a walker can draw fire away from our younger more able bodied soldiers. And the experience of partaking in war again utilizing their experience should be a welcomed relief from the bottom of safety and peacetime. Plus, as Trump knows they nolonger pay into the tax system much and are a drain on our valuable resources that could be used to buy weapons. In fact if we send welfare mothers and other drains on the system out to the front we can go with Trump's no child labor laws stance and put their kids to work manufacturing guns and bombs assembly line style. Drug addicts as Adolph Hitler knew make excellent soldiers. Hitler had amphetamines like meth invented for his soldiers to keep them awake, alert longer, and numb to the emotional effects of war and killing. We can send all our drug addicts out to the front lines and clear out our jails, prisons, and rehab institutions, reduce drug related crime, and the tax drain on the system. Rather than get them off drugs we provide them with ample morphine like in the civil war, and amphetamines like the Nazis did and turn them into heartless alert killing machines for G_d and America. Yaaay. More of our problems solved thanks to Trump. And as an added bonus we will have surplus funds, reduce unproductive population, crime, and more money will be spent on the middle class and wealthy...the people who have the money to be the best consumers and infuse big business with more money. Yaaay Donald J. Trump...yaay.so many problems solved by the Trump perspective.

Anonymous

your a fucking kike

Eli Samuel Goldman

In fact we should implement the draft, but implement it based on income level as Trump would have. Everyone knows many poor people get tax money back the middle class have to pay for. And if we get all these unproductive leeches who are unemployed or not purchasing enough goods or paying enough into the system on the front lines we should save enough in revenue we can buy weapons for them all. Then we just kill all our enemies and take their resource like Trump or Adolph Hitler before him planned. We again get rid of the useless leeches on society, and win/win for big business as their excess property can be auctioned off and the excess funds normally spent on them in government programs can go to the rich and more tax breaks for corporations. And I'm sure other nations won't mind us killing our enemies and taking their resources. It's for G_d and America, after all. Plus if any of the poor social leeches survive the wars they will be grateful for a chance to be cheap labor in companies owned by the rich as reward. After all, it'll be better than the starvation, rations, death, maiming, and destruction of countless lives and property they just lived through. Trump is so wise. Absolute win/win.

Anonymous

I don't know, I suspect we've engaged in a bit of a slippery slope by telling businesses they cannot refuse to engage in business with certain people (boycott, if you will) because of their religious beliefs. I don't approve of refusing to do business with someone because of their sexual orientation (I'm bisexual) but I think people should be allowed to do business with whomever they want for any reason. Restricting these people has set a precedent, and though it's not an exact match it is a similar restriction of free speech in the form of who we do business with.

Pages

Stay Informed