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

It's so easy to forget that these kinds of boycotts played an important role in the end of Apartheid.

Anonymous

This shows that Israel runs our country and dictates our freedom from Goldman Sachs to AIPAC corrupted politicians . Disgusting.

Anonymous

The bill prohibits any U.S. person engaged interstate or foreign commerce from supporting:

any request by a foreign country to impose any boycott against a country that is friendly to the United States and that is not itself the object of any form of boycott pursuant to United States law or regulation, or
any boycott fostered or imposed by any international governmental organization against Israel or any request by any international governmental organization to impose such a boycott

Anonymous

Can we please stop sacrificing our American values for Israel. I don't believe in America First as it's used by the Right, but this is a clear case of America needing to come first. This is sad and depressing that so many Senators have forgot their oath to our US Constitution.

And for what? To appease whom? Where is our benefits from this?

Anonymous

This position of ACLU is not intellectually sound. The laws do not prohibit anybody from stating any opinion. It rather to prevent discrimination against Israel in Busines activity. It is essentially identical to the export act Expet that there the boycit had to be announced by a foreign goverment. It proctects the american citizens right to enjoy the best possible product or service and not be blocked from them by a political opinion. For example, in the case of the speech therapist from Texas, she can say anything she wants, but the law will prhohibit her avoiding using a product made in Israel while providing services to the state. Imaging there would have been a product made in Israel that would be best if it’s kind to treat children with a speech problem. Would the ACLU want to prevent best possible treatment from American children because of her political opinion.
This whole approach is contrary to the ACLU that always protected civil rights. What would the ACLU say if an employer will claim that her free speech allows her boycotting blac emmployees or customer.
וthis whole campaign by ACLU is just an expression of the anti Israeli and truely anti Semitic sentiment of their leadership (and yes I know many of them are Jews) and not a true ACLU cause.
It is doomed to fail in the court.

David

I don't see any restrictions on end-use consumers participating in or advocating for a boycott in the language of this bill. Should US companies be able to restrain trade with a US ally for political purposes in contravention of US government policy? Doesn't that take choice away from the consumer and put it in the hands of company management or Board? Where are the checks and balances to that kind of power? Should those companies coordinate with Foreign Powers to undermine US governmental policy? The polemicists on each side claim they are angels and the Other are all devils. The complexities and nuances require study and debate and actions need to be considered for unintended consequences. I'd rather this be done by our elected representatives.

Anonymous

I support multiculturalism/diversity and open borders for Israel. Israel won't be the monolithic societies they once were, they need to go into a multicultural mode. It's a huge transformation for Israel to make. But without change and without this transformation, Israel will not survive!

pro_palestine a...

Everyone should check "made in" on every product before purchase. I once saw "israel" on either a generic nexium or omeprazole. I chose a competitor instead. "Israel" is an invented, fictitious people. They are the descendants of Hungarians, Romanians, & other Europeans. They are not from the middle east, but Palestinians are. Some Palestinians six generations ago were living in Palestine. I will not buy any product from the terrorist organization known as "israel". They're behind Isis in order to defame Islam. I'm not Muslim but i will continue to fight against islamophobia.

A Simple Countr...

This is not the noble ACLU of Ramona Ripston, nor is it the ACLU that defended the Scottsboro Boys.
The First Amendment does not permit anti-Jewish discrimination in the form of boycotts in violation of state and federal anti-discrimination laws. We lawyers love hypotheticals, so here is one for all those who want to discriminate against the Jews:

"The NoTell Motell in Chicago has decided to force Chicago to lower its sky-high murder rate in the African-American community. To do so, it has announced its local version of the BDS boycott--- It will refuse to allow African-Americans to book rooms until the murder rate drops. It says, "We have a First Amendment right to initiate this boycott of Black people, for their own good of course, because of our deeply held humanitarian beliefs. The ACLU says we can do this, as all boycotts are constitutionally protected".

Let me guess, the ACLU will bravely sally forth under the banner of free speech to defend the boycott at the NoTell Motel.

Anonymous

Refusing to patronize a business is different than a business refusing to serve patrons. You made a false equivalency. The right to boycott is part of the 1st amendment.

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