A New Boycott Battle

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.”

“The bill does not prevent U.S. companies and individuals from expressing their points of view, speaking in favor of boycott, divestment or sanctions (BDS) activities, engaging in boycott activity of their own accord, or being critical of Israel," the senators wrote. "Individuals who 'actively avoid purchasing goods and services' because of their own political viewpoint would not be subject to the bill. Similarly, the bill does not regulate civil society organizations who are critical of Israeli policies or prevent them from speaking in favor of BDS. The legislation does not encourage or compel persons to do business with Israel, nor does it punish individuals or companies from refusing to do business with Israel based on their own political beliefs, for 'purely pragmatic reasons,' or for no reason stated at all."

The ACLU argues, however, that the bill’s proposed amendments to the Export Administration Act of 1979 would change the nature of that law, which they argue was originally intended to prevent American companies from being coerced by Arab trading partners into joining their boycott of Israel as a condition of doing business. In an information sheet on its website, the ACLU writes that the proposed amendments “would significantly expand the 1979 law’s prohibitions, untethering them from Congress’s original concern about foreign governments coercing U.S. businesses into boycotting friendly countries in exchange for commercial relations. Instead, the bill risks penalizing U.S. individuals and companies that support a U.N.-led boycott movement by refusing to purchase goods made by certain companies.”

"You’ve now transformed the law into something in which individuals who choose to engage in even consumer boycotts because they’re persuaded by the U.N. human rights resolution and say so are swept within the ambit of the law, and that is a really troubling expansion with huge implications for First Amendment rights," said Esha Bhandari, a staff attorney for the ACLU. The ACLU holds that the bill as written would prohibit a U.S. person from "adhering to the U.N.’s request to cease business relationships with a company operating in Israel," from "providing information to the U.N. about whether it does business with Israel to support any U.N.-fostered boycott of Israel," and from "requesting information about whether any person is doing business in Israel if doing so is intended to help a U.N.-fostered boycott of Israel."

The board of the Middle East Studies Association has also issued a statement expressing its strong opposition to the bill. “In addition to punishing persons who choose to exercise their constitutional right to free speech by supporting an international boycott in order to protest Israeli government policies, this bill poses a grave threat to academic freedom,” the statement says. “It is not difficult to envision its provisions being used to punish faculty, students, student groups and/or academic organizations who advocate for some form of boycott of Israel, as well as the colleges and universities which house and partially fund them. It would thus have a chilling effect on the free and open exchange of opinions and perspectives at institutions of higher education and severely compromise their educational mission.”

Kontorovich, the Northwestern professor who opposes BDS, argues however that "this is a great disservice to claims of academic freedom and [the] First Amendment. They’re really crying First Amendment wolf."

In an op-ed in The Washington Post, Kontorovich focused on the distinction between expression and commercial activity, pointing out, for example, that while hate speech is constitutionally protected, "if a KKK member places his constitutionally protected expression of racial hatred within the context of a commercial transaction -- for example, by publishing a For Sale notice that says that he will not sell his house to Jews or African-Americans -- it loses its constitutional protection."

"If the anti-boycott measures are unconstitutional, as the ACLU argues, it would mean that most foreign sanctions laws are unconstitutional," Kontorovich wrote. "If refusing to do business with a country is protected speech because it could send a message of opposition to that country’s policies, doing business would also be protected speech. Thus, anyone barred from doing business with Iran, Cuba or Sudan would be free to do so if they said it was a message of support for the revolution, or opposition to U.S. policy, or whatever."

​Cary Nelson, a leading opponent of the movement for an academic boycott of Israel and the Jubilee Professor at the University of Illinois at Urbana-Champaign, said that he is "in print strongly objecting to legislation that limits or penalizes individual speech advocating boycotts. But I believe the ACLU’s claim that this bill imperils that First Amendment right to be misinformed, misguided and a serious black mark against an organization that all progressive Americans will increasingly have to rely on for legal advocacy over the next few years."

"The bill’s practical consequences, if any, will be to discourage corporate boycotts of Israel, something companies are already disinclined to do," said Nelson.

Other academics who support BDS argue the Senate bill -- and a companion bill in the House of Representatives -- would have a chilling effect.

"They effectively use the U.S. government to silence its citizens and others for refusing to do business with Israel," David Palumbo-Liu, the Louise Hewlett Nixon Professor and a professor of comparative literature at Stanford University, wrote in an op-ed in the left-wing publication In These Times. "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."

“I think it’s important to understand the bill is part of a larger campaign to collapse criticism of Israel with anti-Semitism," said Katherine Franke, the Sulzbacher Professor of Law at Columbia University, a member of the executive committee of the Academic Advisory Council for Jewish Voice for Peace and chair of the board of the Center for Constitutional Rights, which along with nine other civil rights groups issued its own statement opposing the bill Wednesday. "For the Congress to enact a bill that creates criminal penalties for engaging in protected constitutional speech is part of the larger political mission by the right-wing defenders of Israel to characterize any kind of criticism of the state of Israel as a bias toward Jews."

Franke described being the target of hate mail and intimidation due to her work on behalf of Palestinian rights. “When these sorts of bills get introduced in Congress or in state legislatures across the country, it emboldens the folks who push back against people like us who are engaging in constitutionally protected speech and defending human rights globally,” she said.