US bill on Israel boycotts sets up free speech battle

The Israel Anti-Boycott Act was jointly introduced in March by a Senate Democrat and a House Republican, with cosponsors from both sides of the aisle.

By MICHAEL WILNER
Updated: JULY 31, 2017 00:06
The White House (photo credit: REUTERS)
The White House
(photo credit: REUTERS)
WASHINGTON – Earlier this month, one of America’s largest civil-liberties organizations announced opposition to a congressional bill that would target international efforts to boycott, divest and sanction Israel, setting up an uncomfortable fight between US-based Israel lobbies and free-speech advocates.
The American Civil Liberties Union – a union at the forefront of several battles against the Trump administration over the rights of immigrants, refugees and minority groups facing systemic discrimination – said the bill would make worse a 1970s-era law that had already stymied the ability of individuals and companies to exercise their constitutional right to boycott.
But the Israel Anti-Boycott Act was jointly introduced in March by a Senate Democrat and House Republican, with cosponsors from both sides of the aisle – a rare moment of bipartisanship in 2017 – as several other legislative items on Israel have wrought division.
In recent years, efforts to legislate against the BDS movement have largely taken place at the state and local level. That tactic has proven successful on paper: The nation’s largest states, including California, Texas, Florida and New York, have all passed harsh measures that effectively prevent their states from aiding businesses that partake in boycotts of Israel.
But this new bill takes a different approach, reacting to new global efforts beyond the reach of any one state. It was drafted in reaction to a decision from the UN Human Rights Council last spring to compile a “blacklist” of companies operating in the Palestinian territories, defined by them as anywhere beyond the pre-1967 war Green Line.
The anti-boycott act would amend the Export Administration Act of 1979 – originally written to protect US companies from Arab League sanctions on Israel – to protect Israel and Israeli businesses from international boycotts of virtually any kind. Specifically, the bill would criminally penalize any US person seeking to collect information on another party’s relationship with Israel in pursuance of a boycott.
The ACLU has been joined in recent days by several other civil liberties advocates warning that the law would encroach on free speech: One’s right to join a boycott called for by an organization such as the United Nations. They claim that the law, as it is currently written, is blatantly unconstitutional in this regard.
But the language of the bill offers a clever counterargument: That enforcement of the US-Israel Strategic Partnership Act of 2014, which compels the US to deepen strategic, security and economic ties as much as possible, in a definitional manner requires Washington to rebut the BDS effort. And it simply expands on the sturdy parameters of 1979 export regulations that prohibit the boycott of friendly countries.
Supporters of the bill contend that the ACLU’s argument against the legislation is, in fact, one against the Export Administration Act – a basis for international sanctions levied against governments worldwide in the name of national security. The ACLU, on the other hand, argues that its problem with the bill is that is targets specific companies choosing whether to enter into business with other specific companies, such as one operating a factory in West Bank settlements.
Authors of the bill note that their legislation takes no position on Israel’s settlement activity.
“The ACLU has long supported laws prohibiting discrimination, but this bill cannot fairly be characterized as an anti-discrimination measure, as some would argue,” the organization said in a July 17 letter to lawmakers. “For example, the Civil Rights Act of 1964 already prevents businesses from discriminating against customers based on race, color, religion and national origin.
“This bill, on the other hand, aims to punish people who support international boycotts that are meant to protest Israeli government policies, while leaving those who agree with Israeli government policies free from the threat of sanctions for engaging in the exact same behavior,” the group continues. “Whatever their merits, such boycotts rightly enjoy First Amendment protection.”