Freedom to Boycott

Published: 7/29/2017 12:25:20 AM
Modified: 7/29/2017 12:25:34 AM

Bipartisanship is not dead in the U.S. Congress. Every once in a while, Democrats and Republicans still come together in support of a really bad idea. An example is the pending Israel Anti-Boycott Act, which has the support of 280 members of Congress of both parties. It was distressing to learn that Sen. Maggie Hassan, D-N.H, is among them.

The bill would amend the Export Administration Act of 1979 to prohibit American individuals and businesses engaged in interstate or foreign commerce not only from supporting any boycott of Israel fostered by a foreign county, as is now the case, but also one sponsored by any “international governmental organization,” such as the United Nations or the European Union. Presumably the prohibition would apply to the Boycott, Divestment and Sanctions campaign, which describes itself as a Palestinian-led global movement made up of unions, academic associations, churches and grassroots groups protesting Israeli settlement policies. The bill also would extend the boycott ban from Israel generally to any part of Israel, including the disputed settlements.

According to the American Civil Liberties Union, violations would be punishable by a minimum civil penalty of $250,000 or a maximum criminal penalty of $1 million and 20 years in prison. Sponsors of the bill dispute that it carries any criminal penalty at all and argue that only a civil fine is contemplated. But the ACLU points to a section that refers to an existing law that does carry such a prison term and which could possibly be imposed by a judge.

Although incredibly harsh, the penalty is in many respects beside the point. The ACLU correctly notes that the boycott has a long and honorable history in America, from the American Revolution to the civil rights struggle to the South Africa anti-apartheid divestment campaign. Using the collective power of the marketplace to bring about change is a legitimate and sometimes potent form of political expression that is constitutionally protected. 

Moreover, companies and individuals may choose not to do business with Israel for any number of reasons. This bill targets those who declare that their decision is part of a boycott, singling them out for expressing their political views in this fashion. That surely cannot pass First Amendment muster.

Hassan’s press secretary, Ricki Eshman, explained her employer’s support for the bill this way: “Senator Hassan strongly opposes the boycott, divestment and sanctions campaign against Israel and believes that it harms efforts to secure enduring peace through bilateral negotiations toward a two-state solution.” We tend to think that the boycott now aimed at Israel is not the reason those negotiations have been futile for a generation, but even if it were, political expression is not something that can be harnessed by law to government’s purposes.

Last week, according to The Intercept news organization, the legislation’s prime sponsors in the Senate, Sen. Ben Cardin, D-Maryland, and Sen. Rob Portman, R-Ohio, promised to revisit the language to address the ACLU’s concerns, which they say result from misinterpretation. “A lot of the co-sponsors are pretty strongly committed to the freedom of speech. We’re certainly sensitive to the issues they raise. If we have to make it clearer, we’ll make it clearer,” Cardin said.

We’re not convinced that clarity is the problem here, given that the whole point is to impose new restrictions on support for boycotts against one country. That sounds more like special pleading, especially given that the Israel Anti-Boycott Act was named a top legislative priority this year by the American Israel Public Affairs Committee, one of Washington’s most powerful lobbying organizations. For its part, the ACLU makes clear it takes no position on the merits of the boycott movement against Israel and that its objections are solely on First Amendment grounds. We think those grounds are solid.


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