Why Amending the Israel Anti-Boycott Act is Not Enough

Photo: Senator Cardin/Flickr 

updated August 9, 2017

The Israel Anti-Boycott Act, introduced in the U.S. Congress in March 2017, amends anti-boycott provisions of the federal Export Administration Act (EAA), enacted in 1979. Those provisions prohibit specific actions taken to comply with or support a boycott of Israel “fostered or imposed” by a foreign country. The sponsors of the new Act propose to add new restrictions on boycotts “fostered or imposed” by an international governmental organization (IGO), such as the European Union or the United Nations. Violations are punishable by exorbitant fines and up to 20 years in prison.

Due to recent widespread outrage over this bill, including from the ACLU and grassroots activists, its chief Senate sponsor, Maryland Senator Benjamin Cardin, has stated that he is willing to amend the bill to remove criminal penalties. Amending the bill does not resolve its underlying problems, including the chilling effect it will have on constitutionally-protected speech. The bill must be rejected.

Senator Cardin has written that the bill does not target political boycotts. Instead, he claims that the bill merely expands preexisting law to prohibit U.S. businesses from complying with boycott requirements imposed by international governmental organizations. In other words, Senator Cardin argues that the bill does not prohibit political speech but targets “commercial conduct,” which is afforded less constitutional protection.

Senator Cardin's interpretation fails to consider the following:

• Political speech activities would be directly prohibited by the Act. 

The Israel Anti-Boycott Act would directly prohibit political speech activities, in violation of the First Amendment. Consider the situation of a human rights organization that distributes research on companies operating in illegal West Bank settlements. This organization could be in violation of the Act if the organization’s intent is to support a call by an IGO to boycott settlements.

• The Act would empower overzealous presidential administrations to target supporters of political boycotts.

We have no doubt that the Act would be used as a pretext for overzealous presidential administrations, lobbied by Israel advocacy groups (including those that support this bill), to investigate and even punish supporters of Palestinian rights, whether or not they actually support a call for boycotts by an IGO, which they must do to trigger the Act. Arab and Muslim communities will likely face the brunt of this potential for overbroad enforcement.  

From 2014 through 2016, Palestine Legal responded to 650 incidents of suppression nationwide targeting speech supportive of Palestinian rights, an additional 200 requests for legal assistance in anticipation of such incidents, and dozens of efforts to enact federal, state and local laws aimed at punishing BDS activism and chilling speech supportive of Palestinian rights. Palestine Legal and the Center for Constitutional Rights documented this pattern of suppression of Palestinian rights advocacy in a 2015 report,  The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

As such, our belief that the Act, if enacted, would be enforced in this way is based on a well-researched pattern of suppression of First Amendment-protected speech and actions in support of Palestinian rights involving heightened government surveillance, investigations and prosecutions of individuals due to their support for Palestinian freedom, as well as private harassment and targeting, including by organizations that support the Act.

• The Act will have the effect of chilling First Amendment-protected political speech.

Despite Senator Cardin’s efforts to insist the Israel Anti-Boycott Act doesn’t target political conduct, the leading lobby group for U.S. support of Israel, America Israel Public Affairs Committee (AIPAC), itself frames it as a measure to “Combat the BDS Movement.” In the past two years, 21 states have enacted laws aimed at punishing participation in political boycotts for Palestinian rights. Together with these state laws, the Act will create a severe chilling effect on people across the country who are otherwise inclined to support First Amendment-protected boycotts for Palestinian rights, or who are merely curious to learn more. The wave of anti-BDS legislation, promoted by Israel advocacy groups to undermine the movement for Palestinian rights in the United States aims to send a clear signal that support for Palestinian rights is disfavored by our government and is potentially punishable.

Statements by state officials and Israel advocates illustrate their intent to thwart grassroots boycott campaigns. For example, when a state senator in Washington introduced an anti-BDS bill, he said, “If students want to protest on campus and do what students do, that’s just fine. But we’ll settle the question for them, the adults in [the] legislature.” The leader of one Israel advocacy group boasted, “[w]hile you were doing your campus antics, the grown-ups were in the state legislature passing laws that make your cause improbable.”

Amending the Act to reduce the associated penalties or otherwise will not solve the underlying problems listed above, which illustrate how it is unconstitutional. We call on members of Congress who currently support the Act to withdraw their sponsorship. And we call on all members of Congress to publicly oppose the Israel Anti-Boycott Act and to affirm the First Amendment right to support political boycotts – including those aimed at achieving justice and equality for Palestinians.