The New Israel Anti-Boycott Act Is Still Unconstitutional

Over the weekend, two senators introduced changes to the Israel Anti-Boycott Act, which would criminalize participation in certain political boycotts targeting Israel. The changes attempt to address the civil liberties concerns raised by the ACLU and other groups.

Unfortunately, the revised bill still violates the First Amendment. It does so by unconstitutionally penalizing Americans who participate in political boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories, if those boycotts were called for by international governmental organizations like the United Nations.

This is impermissible. Political boycotts are fully protected by the First Amendment. The Supreme Court made that clear when it recognized, in a landmark 1982 decision called NAACP v. Claiborne Hardware, that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi. If the Israel Anti-Boycott Act were to pass and take effect, we would strongly consider challenging it in court.

The Israel Anti-Boycott Act seeks to amend a 1970s law known as the Export Administration Act. That law was passed in response to the Arab League’s boycott of Israel, which required U.S. businesses to boycott Israel as a condition of doing business with Arab League countries. To prevent foreign countries from bullying U.S. businesses into these compulsory boycotts, the EAA prohibited U.S. companies from entering into agreements with foreign governments to boycott countries friendly to the United States. Whereas the EAA was meant to protect U.S. companies from these compulsory boycotts, the Israel Anti-Boycott Act seeks to dictate the political activities Americans can and can’t engage in. It does so by imposing civil and criminal penalties on American organizations that participate in political boycotts called for by international organizations.

The revised Israel Anti-Boycott Act, amended by Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio), does contain several significant improvements from the original draft. For example, the bill now makes clear that Americans cannot be imprisoned for their boycott participation. It also provides that speech critical of Israel cannot be used to open an investigation against an individual or as evidence that the person violated the law. These changes alleviate some of the gravest dangers posed by the bill.

But this latest version would still allow people who boycott to be slapped with criminal financial penalties. It suffers from the same fundamental flaw as the original draft by criminalizing participation in constitutionally protected boycotts. In fact, the bill’s sponsors openly admit that it was designed for this purpose. In the press release accompanying its announcement, Sen. Mike Crapo (R-Idaho) described the bill as an attempt to “combat Boycott, Divestment, and Sanctions (BDS) efforts targeting Israel.” Sen. Sherrod Brown (D-Ohio) also characterized the bill as “anti-BDS legislation.” Although the bill states that “[n]othing in this Act . . . shall be construed to diminish or infringe upon any right protected under the First Amendment,” these words rings hollow in light of the bill’s obvious purpose.

The Israel Anti-Boycott Act cannot be viewed in isolation. It is part of a sustained legislative campaign in the state and federal governments to suppress boycotts of Israel. Just a few weeks ago, a federal court in Kansas agreed with the ACLU’s First Amendment challenge to a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court recognized that the Kansas state government could not constitutionally suppress our client’s boycott to silence one side in the public debate over the Israeli-Palestinian conflict.  In halting enforcement of the law, the court held that our client’s boycott of Israel:

“is protected for the same reason as the boycotters’ conduct in [NAACP v. Claiborne Hardware] was protected. . . . Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced by both Palestinian and Israeli citizens.”

From the campaign to divest from apartheid South Africa to the recent boycott against the National Rifle Association, boycotts have always been a key feature of American politics. If state and federal governments could outlaw boycotts they don’t like, all sorts of social movements would suffer. Whatever their views are on Israel and Palestine, members of Congress should recognize that the Israel Anti-Boycott Act threatens fundamental First Amendment values. We urge them to oppose it.

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Your freedom of speech does not protect you from economic consequences. You are free to speak negatively about gays or blacks or Jews or any other group, but when you refuse to do business with them (e.g. serve them in a restaurant) you run afoul of the law.

No one is being prevented from boycotting.

Just as they are free to translate their opposition to Israel into economic decisions (i.e. avoiding buying Israeli products) the people in these states (as represented by their governments) are free to translate their opposition to BDS by refusing to do business with companies that refuse to do business with American allies.


Israel is no ally


It's literally called the Anti Boycott Law.

There is zero parallel between criminally punishing people for refusing to do business with Israel and refusing to seat someone in a restaurant based on their identity. The parallel here would be forcing people to go to restaurant A rather than restaurant B, on pain of criminal prosecution, because restaurant A has worse food but better lobbyists.

Boycotts have long been established as political speech in America. If passed, this law will be put down by every federal court that looks at it.


"There is zero parallel between criminally punishing people for refusing to do business with Israel and refusing to seat someone in a restaurant based on their identity."

No one is being criminally punished for refusing to do business for Israel, unless they want to get state money while lying about their support of the boycott. But the state is not obligated to hire people whose activities they disapprove of. That includes refusing to give business to a leader of the Klu Klux Klan, and those who hypocritically single out Israel while they buy products from China and other countries with far worse human rights records.

BTW, as a good little boycotter of Israel, I hope you're boycotting Apple and Intel products, as Israel is an important R&D and manufacturing site for Apple (where much of the R&D and parts for the iPhone 8 and X come from), and Intel is Israel's largest private employer, with over 10,000 Israeli employees. You're not just boycotting Israeli matzoh, are you?


re: "Israel is no ally"

I'm SO impressed that the ACLU thinks a comment like this passes moderation, and adds to a discussion of BDS and law. But if that merits publication:

Israel is a tremendously important source of intel for the US. Moreover, as former Secretary of State Alexander Haig said:

"Israel is the largest American aircraft carrier in the world that cannot be sunk, does not carry even one American soldier, and is located in a critical region for American national security."


You are confusing the federal bill with a number of similar state bills. The state bills only apply to groups conducting business with that state. The federal bill applies to anyone doing any interstate or international business with anyone.


Spot on !! As an individual I have the right not to do business with a business


So, in your mind, a law that prohibits a hotel from refusing to rent a room to a person based on an immutable trait such as skin color is no different than a law that prohibits a business owner from refusing to do business with a nation based on their moral objection to its voluntary choices?


The bill is literally designed to prevent people from boycotting by making it criminally punishable. The boycott cited is being carried out on political grounds not based on what the case law recognizes as immutable characteristics. Anyone who refuses to serve a black person in their restaurant will be ordered to serve them or shut down, but they wouldn't be put in jail. And yes you don't have to give people who support a particular political boycott your business on those grounds. That doesn't mean this criminalization of political boycotts will pass muster.

Happy Merchant

Nobody is calling for open borders/banning guns/requiring corporations to hold at least a few wamen on their boards


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