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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Anonymous

isreal is not an american ally. uss liberty

Anonymous

you are free to hold and express your views

but (in almost every instance) your employer is free to fire you if your views clash with theirs, or they feel association with you reflects negatively upon them

freedom of speech does not and never has implied freedom from economic consequences. that's all the more true when you translate your own political views into economic actions.

Anonymous

There's a difference between a private employer choosing not to employ someone and the US government imposing a criminal sanction. Why are these distinctions so difficult for some people to grasp? I

Anonymous

And what bearing does that have on this law? Also, sophisticated anti-BDS internet doxing and harassment has gone on for a decade now. Canary Mission was founded in 2008. You'd think that would make those folks' careers hard, but the only places where Canary Mission subjects have had difficulty is in academia. American employers don't really care and it's something of an inside joke among BDS organizers.

Anonymous

Can I boycott boycotters? Say, I am an employer, and someone, who applies toi the job, belongs to denomination, which boycotts Israel. Can I say legally: "Go away, anti-Semitic scumbug, I don't want you here?"

Anonymous

Sure, they can work for me

Anonymous

NO. And boycotting Israel is not "anti-Semitic".

Anonymous

It's antisemitic to protest a nation for dropping white phosphorous on kids, tearing down people's homes, sending African immigrants back to certain death and putting a foreign lobby in the sovereign US government? You need to actually learn what anti semitism is because if this is your definition, you have it easy. Btw, when will you stop criticizing the Alt Right because under your logic, criticizing them is anti white, and racism is bad.

Anonymous

Yup. You actually can. That’s what Canary Mission is doing.

Anonymous

Why would I want to work for somebody who thinks Israel and Jews are one in the same? It would be like thinking that criticizing an Arab country is Islamophobic, which is patently ridiculous. Israel is a nation-state, a political entity, and therefore cannot possibly represent a community whose entire identity for the last thousand years has been based on being ABOVE politics and ABOVE nation-states.

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