A New Boycott Battle: The Anti-BDS Bill


Civil rights groups argue the “anti-Israel boycott” bill would violate First Amendment rights, while supporters say the bill is narrowly tailored and represents a minor amendment to current law.

By Elizabeth Redden / Inside Higher Ed
August 11, 2017

“[The bill’s authors] effectively use the U.S. government to silence its citizens and others for refusing to do business with Israel. Importantly, this legislation would dole out punishment for refusing to do business with companies operating in the occupied Palestinian territories — companies that are thereby acting illegally under international law. Astonishingly, an individual or business could be convicted for obeying international human rights rulings.”
— David Palumbo-Liu, the Louise Hewlett Nixon Professor of comparative literature at Stanford University

A bill in Congress that would prohibit U.S. persons or companies from participating in or supporting boycotts of Israel organized by international governmental organizations like the United Nations or the European Union has been roundly criticized by civil liberties groups as an infringement on First Amendment rights to free expression.

The Israel Anti-Boycott Act, which enjoys wide bipartisan support and has 48 cosponsors in the Senate, isn’t directly focused on higher education, but opponents of the bill say it would have implications for scholars and academic organizations to the extent they’re involved in boycott-related activism — as many individual academics and some academic groups are. Although the boycott, divestment and sanctions movement against the country of Israel, supported by many academics and others, is organized by nongovernmental organizations and seemingly would not fall under the purview of the bill, opponents of the legislation say BDS supporters could be ensnared by it if they, as part of their activism, participated in or otherwise supported a boycott organized by an international governmental body like the United Nations.

“This bill would impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies,” the American Civil Liberties Union wrote in a July 17 letter opposing the bill. Those penalties, the ACLU wrote, could include civil fines of up to $250,000 or criminal penalties of up to $1 million and a 20-year prison sentence.

“There are millions of businesses and individuals who do no business with Israel, or with companies doing business there, for a number of reasons,” the ACLU wrote. “Some, like those who would face serious financial penalties and jail time under the bill, actively avoid purchasing goods or services from companies that do business in Israel and the Palestinian Occupied Territories because of a political viewpoint opposed to Israeli policy. Others may refrain from Israeli-related business based on political beliefs, but choose not to publicly announce their reasoning. Still others do no business with companies in Israel for purely pragmatic reasons. Under the bill, however, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment — even though there are many others who engage in the very same behavior. In short, the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment.”

Supporters of the bill say criticism of it on free speech grounds is misplaced. They say it is intended merely to amend existing law that already bars Americans from complying with the boycotts of Israel imposed by foreign countries, such as the boycott imposed by member states of the Arab League, by making it illegal to comply with boycotts organized by international governmental organizations, such as the U.N., as well. The text of the bill explicitly discusses a March 2016 United Nations Human Rights Council resolution that calls for the creation of a database of businesses — in the bill’s parlance, “a blacklist” — that operate in Israeli settlements.

“This law is simply a minor tweak and updating of the existing anti-boycott legislation,” said Eugene Kontorovich, a professor of law at Northwestern University and an opponent of the BDS movement.

“We don’t really need to speculate about how this law will affect higher education, because we already know. Just like the existing anti-boycott legislation has never been used in any way that even vaguely has been thought to implicate free speech or higher education, the expansion of it is going to have equally zero effect,” Kontorovich said.
In a letter in response to the ACLU, the Senate bill’s two main sponsors, Benjamin L. Cardin, a Democrat from Maryland, and Rob Portman, a Republican from Ohio, wrote that the bill poses no threat to free expression.

They wrote that “nothing in the bill restricts constitutionally protected free speech or limits criticism of Israel or its policies” and that the bill is “narrowly targeted at commercial activity and is based on current law that has been constitutionally upheld.”

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