Why an Effort to Thwart Some Boycotts of Israel Fails the Free-Speech Test

Even analysts who cannot agree on what the legislation actually says largely agree that Congress should reject it.

Amir Cohen / Reuters

Like disputes over abortion, the death penalty, and drug prohibition, the conflict between Israel and Palestine divides Americans into polarized camps of mutual distrust. If any consensus is possible on those issues, it is that there is nothing like a consensus, and that the attendant conflict is better handled through politics than violence.

Yet dozens of members of Congress have backed confusingly worded legislation that would impose new restrictions on American citizens who want to participate in boycotts against Israel, if they originate with an international organization like the UN or the EU. The bill thus seems to risk excluding some would-be boycotters from normal politics by criminalizing some expressions of dissent as a serious felony.

One needn’t favor “Boycott, Divest, Sanctions,” the most prominent boycott campaign targeting Israel, to believe that criminalizing boycotts is deeply illiberal.

Say that BDS is the best path to securing equitable peace in the Middle East. Or say that targeting Israel for a boycott, alone among countries that abuse human rights, is inconsistent, wrongheaded, and unlikely to help Palestinians. The merits don’t matter here. Americans have a right to adopt even mistaken positions, to engage in even ill-advised activism, and to stop dealing with even laudable entities.

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.’”

The bill strikes me as constitutionally suspect even if Cardin and Portman are correct that only companies, not individuals, will be targeted for participating in some boycotts. If a U.S. citizen owns a chain of Mediterranean restaurants, or a plastic-widget factory, or a freight-forwarding service, and declines to do company business with a foreign country, in support of a UN-led boycott against what she regards as human-rights abuses there, it would be an outrage to punish her as a felon.

Another analysis worth considering, “The US anti-BDS bill may be bad, but not as bad as some critics say” by David Schraub at Jewish Telegraphic Agency, argues that although the ACLU is mistaken in some of the concerns that it expresses, the bill nevertheless “poses a significant risk of chilling speech because whether or not Israel boycotters are doing so because they personally find the nation terrible versus because they wish to ‘support’ a U.N. declaration that Israel is terrible will often be quite blurry. In any event, it’s not clear why that should be legally dispositive.”

He concludes, “laws can be bad without being apocalyptic and inadvisable without being unconstitutional. Discussions of Israel/Palestine, in particular, suffer from a marked propensity from people on all sides to abandon care and perspective … This bill does not do the more outrageous things it stands accused of. That does not mean it is well-drafted, necessary or worth the tempest it is stirring up.”