Just how bad the new proposal is depends on how its least-clear language is interpreted. Domestically conceived boycotts of Israel would definitely remain legal.
But according to the ACLU, the law “would punish individuals for no reason other than their political beliefs” by expanding the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which “prohibit U.S. persons from complying with a foreign government’s request to boycott a country friendly to the U.S.”
The ACLU analysis argues that:
the bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts. Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison. We take no position for or against the effort to boycott Israel or any foreign country. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.
At National Review, Noah Daponte-Smith mostly agreed. “This proposed legislation is indeed unconstitutional and unconscionable, an abridgment of the right to free speech, which is quasi-sacred in American life and enshrined in the founding document of our government,” he complained. “The senators who currently support it should be, quite frankly, ashamed of themselves,” he added. “They have lost sight of one of the founding principles of American government, allowing it to be overshadowed by the spectral world of the Israeli–Palestinian dispute.”
Other analysts took issue with the ACLU’s reading.
Haaretz reports that two of the bill’s original bipartisan co-sponsors, Senator Ben Cardin and Representative Rob Portman, insist its critics are overstating what it actually forbids:
They wrote that the bill’s critics misunderstood its language and that despite the ACLU’s warnings, no U.S. citizen will face legal penalties for supporting a boycott of Israel under the new legislation. The two congressman explained in their letter that the most controversial part of the bill — the one detailing the criminal penalties for participating in boycotts of Israel — was in fact an expansion of a law, enacted in 1977, prohibiting U.S. companies from taking part in state-led boycotts of Israel.
That bill was adopted in order to counter the Arab boycott of Israel. The new bill adds a new component to it, stipulating that the penalties for participating in a state-led boycott of Israel will also extend to participation in boycotts led by international governmental organizations such as the United Nations and the European Union.
The newspaper added, “Not all of the bill’s critics are convinced. ‘The language is confusing and doesn’t clearly state what Cardin and Portman wrote in their letter,’ one Democratic staffer told Haaretz, adding that ‘it wouldn’t surprise me if a large number of Democrats will ask to amend this, making it much more clear that citizens expressing support for boycotts will not be punished for their political opinion.’”