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 (140)
Read the Terms of Use

Zenwick

I have reread your comment a half dozen times and - no offense intended - I think you could have stopped after the first three words.

Eli Samuel Goldman

Trump is so right. Even people with Downs Syndrome can handle a mine sweeper and be taught to sweep a minefield.

Eli Samuel Goldman

We can teach people with cerebal palsey to rush into enemy camps with nitro gycerine trigger bombs and like the North Vietnamese enemy did in Vietnam war bloe themselves up with 50 or 60 of the enemy. How patriotic and what heroes they will be. A neccesary casualty but so crucial to taking out large numbers of the enemy with minimal casualties. We can hold a Veterans parade and Trump can host honoring those brave soldiers with cerebal palsey who went on suicide missions for America. Eventually we can do away with disability payments entirely and just send the disabled who can't work on suicide missions for G_d and Country as Jesus would surely have wanted it.

Eli Samuel Goldman

We can tell the soldiers with cerebal palsey that it isn't a suicide mission because Trump and big business consider them useless leeches, but instead make them understand blowing themselves up with the enemy saves countless lives and is a mission from G_d for America and an honor. A 60 of theirs to 1 of our *bottom-line* kill to loss ratio is better than any previous war. Any good business man like Trump knows those kind of numbers speak for themselves. Trump is so wise wanting to run the country and military like a business. Acceptable losses from unproductive people in any organization to gain bigger returns is a prominent business concept.

Eli Samuel Goldman

Nonsense. I refuse to do business with Pentecostal people because they are an abomination to G_d. My business is my business and I want to refuse to deal with those filthy pentacostals and their holy roller gibbering in my store, scaring away good Jewish customers, I should have that right. What if these people start laying on of hands and gibbering about Jesus to my customers, huh? Next I'll be liable for assault charges. For the safety of my Jewish clientele I can't have pentacostals in my store. And it's my store to do what I want with. I pay for it. So if I want to exclude those hetheous abomination to all I hold sacred I can.

Eli Samuel Goldman

Can you imagine how much business I'll loose if I allow Pentecostal Christians in and they start speaking in tongues. Not to mention all the small Jewish children those freaks of nature will frighten off. I can't have that if I want to stay in business.

Eli Samuel Goldman

And my apartment complexes serve an exclusive upper-class clientele. I cant rent them out to Cathloics. I've seen how those people are, they don't even believe in birth control and they procreate like rabbits. Plus they tend to be close to the older generations and have grandmother and grandfather living with them. Let two Catholics in, and next thing I'll end up with 20 of them all living in the same two bedroom luxoury apartment, unwatched kids banging away unsupervised while the parents go at it like stray dogs in heat. My other clients will complain, the neighborhood will get trashed, property values will plumet, and I'll end up looking my shirt and be stuck with a slum and problems with HUD, drugs, DHS in my buildings. No thank you. I can't rent to Catholics either. I have a reputation to think of. It took me years to build up the brand name of my top townhouse, luxoury, and penthouse suites and apartments.

Eli Samuel Goldman

No, Trump is right. We should have the right to deny clients and customers based on religious grounds. Can you imagine what some of the the exclusive clubs would be like if we let a bunch of Baptists in? My friends wouldn't be able to give away memberships.

Eli Samuel Goldman

I had a buddy who once let some Latter Day Saints ...you know, Mormons into his sports bar and coctail lounge to watch the game. Next thing ya know it's filled up with dozens of the bastards. They wouldn't by any cocktails, beer, wine, not even a soda because of the caffine. He said, "look, we don't have any caffine free drinks here, and we sell alcohol here. You need to go." They filled up every damn seat. There was no room in the whole bar for REAL PAYING CUSTOMERS. And you know those penny pinching cheap bastards don't even leave a tip. It was killing his business for real customers. And it's all about business. ...No, Id never allow a moron in my establishment. Bad for business. Nothing against Mormons. But you understand. I can't afford to loose the business.

Ben

Well-funded members of Congress have gone out of their way trying to establish that money *is* free speech. If that's the case, restricting how one can or cannot use their money is a restriction *on* free speech. They can't have it both ways.

Pages

Stay Informed