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Senate’s Israel Anti-Boycott Act Has Good Intentions, but Bad Results
Protestors against Israel boycott at the 50th annual Israel Day Parade in New York City, June 1, 2014. (Shutterstock.com)
A bill sponsored by roughly half the members of Congress would — so we are warned by New York magazine, at least — “make it a felony for Americans to support the international boycott against Israel” and “make avoiding the purchase of Israeli goods for political reasons a federal crime.”
Would the bill really do that? No, not as sweepingly as those passages suggest. But even shorn of the exaggeration, the Israel Anti-Boycott Act (S. 720), sponsored by Sens. Ben Cardin (D-MD) and Rob Portman (R-OH), is plenty bad enough. By punishing boycott participation grounded in political belief, it would infringe on individual liberty. I don’t like the BDS (“Boycott, Divestment, and Sanctions”) movement one bit, but sponsors of this bill — who include conservatives like Sens. Ben Sasse (R-NE), Mario Rubio (R-FL), and Ted Cruz (R-Tex.), as well as progressives like Sens. Kirsten Gillibrand (D-NY) and Claire McCaskill (D-MO) — need to face some tough questions about how it squares with the First Amendment.
The furor erupted following a July 17 ACLU letter in opposition to the bill and a widely noted Intercept column by Glenn Greenwald and Ryan Grim. By that point S. 720, drafted with the assistance of the American Israel Public Affairs Committee (AIPAC), had already picked up 43 Senate sponsors, 29 Republicans, and 14 Democrats. A similar bill in the House has 234 representatives, more than a majority in that chamber.
The bill would add new language to the 1979 federal law that already prohibits taking part in or assisting boycotts promoted by foreign governments (in practice, the Arab League’s boycott of Israel). Among its key provisions, one would add a new prohibition on facilitating boycotts promoted by international governmental organizations (IGOs), such as the United Nations or European Union. Despite ongoing rumblings, neither the UN nor the EU have launched a boycott of Israel, but you never know what will happen in the future.
Neither the current law nor the bill, then, proposes to ban all participation in Israel boycotts: if your refusals to deal are strictly homegrown and no motive of assisting a government-led or future UN or EU boycott comes into them at any point, you’d still be okay. Is that especially comforting? The bill seems to contemplate liability even for persons who are neither agents of the EU or another foreign entity nor, say, multinational businesses trying to keep them happy: so long as advancing some future boycott organized by such a body were part of your motive, you might be in trouble even if your actions followed the advice of some activist at your church or student group. And violations are subject to a minimum civil fine of $250,000, a ruinous sum for many.
Berkeley law lecturer David Schraub has attempted a line-by-line interpretation in a blog post — no easy matter, as some of the provisions are ambiguous and confusing.
Schraub points out that contrary to some of the early reports, neither old nor new versions ban (nor could they, given the First Amendment) “support” for a boycott in the everyday sense of sympathizing with it or speaking out in its favor. Instead, both ban a list of actions taken to advance a boycott. Some, such as refusals to deal, are commercial in nature, while others, such as relaying to a boycott authority information about one’s own compliance, or details on the ownership, and employment profile of someone’s company, can shade more into acts of communication.
Of particular concern, free-speech-wise: S. 720 creates new liability arising from “requests” both to join a boycott and to furnish information to facilitate boycotts. Although the meaning of the new language is far from clear, it likely means that the bill would ban a swath of previously legal speech about boycotts.
Also, to me, highly significant: for some courts, a key rationale in upholding the 1979 law as constitutional was that it functioned, in effect, as an anti-duress-payment law, in the same way that some laws ban the payment of kidnap ransoms. Since few American multinationals of that era found Arab League arm-twisting to be welcome, the law (or so it was argued) actually advanced their interests by taking a potentially coerced outcome off the table. But since there is no prospect of a group like the EU conducting a secondary boycott with similar coercive effect, the new bill cannot be rationalized even shakily this way. Its old rationale having eroded, the new law would much more frankly pivot to ban a class of foreign boycotts motivated by political belief.
One irony here is that several of the groups sounding the alarm about this are having to row back from their position in other controversies that refusal to deal is merely a commercial matter unrelated to conscience or ideological commitment, that anyone who buys or sells in the marketplace must covenant to buy or sell with all comers, and all the rest of what we hear in the wedding services cases. The ACLU points out that one business may decline to deal with Israel for “purely pragmatic reasons,” such as shipping logistics, while another refuses to deal because it supports the boycott. Because only the second business is punished, it has in effect been punished for having taken an ideological stand. It’s not a bad argument — but it might also seem to apply to the difference between a wedding vendor who turns down a job because she’s doing another wedding that weekend, and one who turns it down to make some ideological point.
For libertarians, meanwhile, the answer should be easy. It is not a proper function of law to force Americans into carrying on foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad, or arbitrary. The outcry might make a good occasion to revisit the 1979 law itself in light of principles of individual liberty; at a minimum, we should decline S. 720’s invitation to extend it further.
Published in Foreign Policy, Law, Politics
And people say it’s impossible for this hyper-partisan Congress to get anything done.
I guess it all depends on who’s asking.
In a better world, this would just be a clever ploy to prompt reconsideration of the intrusive civil rights acts, let alone the modern ninny state.
I suspect the issue here is pretty simple, and goes something like this:
Hey Portman. That’s two profoundly stupid positions in one week. Are you shooting for Barbara Boxer’s record or something?
The argument would be more forthright without the rhetorical framing of that first paragraph.
For the most obvious historical reasons boycotts of Jews are uniquely pernicious. I can’t see how it’s wrong for any Government to outlaw participation in, or encouragement of, this thin-end-of-the-wedge movement. Sorry if that offends your purist First Amendment sensibilities.
If sticking to your principles doesn’t achieve your objective do you change your objective or do you alter your principles. I guess that’s the question.
That’s the issue that this piece of persuasion doesn’t address.
Does the First Amendment protect one shouting “There’s a Jew!” in a crowded theater?
When a rounding error of the world population is subjected to the organized hate of 85% of the United Nations and repeated attempts at extermination we might be in a situation where a balancing test is needed.
Assertions that the EU, home to many central cities where Jews cannot walk freely, isn’t likely to support secondary boycotts over time are unconvincing, to say the least.
Gee, what details or ownership/employee profile data could this possibly refer to? I’m stumped.
Seems there’s lots of propaganda flying from all sides. Myself, I’m all for anything that weakens the UN and the EU (to say nothing of the Arab League).
I’m against the EU and the UN.
Otherwise? Happy to have the argument. It astounds me that we act as if being “approved of” by liberals was a good thing.
I don’t mind the boycott, but then again, I have no problem with everyone else being wrong. And given all the medicines and technologies developed for the world by Israel, the whole thing is one big joke.
You’re free to practice your Holocaustianity, but don’t try to make it a felony to not go along with its tenets.
Quite the wordsmith!
Next thing you know, Congress will make it against the law to make a purchasing decision based on anything “Russians” and I’ll have to pay a fine for dropping Facebook when it collaborated with Putin in interfering with Russian elections.
If you don’t believe in free speech for all, you don’t believe in free speech at all.
You set up a false choice. I believe that everyone has the same right as everyone else to freedom of speech. It does not follow that anyone can say anything they like whenever they like to whomever they like, with no consequences in any circumstances. I’m not an American but I know America has defamation laws, for example.
I agree, but the “consequences” should not come from the government, especially where political speech is concerned.
Here’s Senator Ben Cardin’s response to criticism of the bill. He emphasizes that courts have thus far upheld the 1979 law against constitutional challenge, as if that should put an end to any disquiet, but he does not address the ways in which the expanded language aims liability toward boycotts pursued for reasons of ideological commitment rather than duress, or how that might affect the First Amendment’s application. Nor does he address the expansion of liability for “requests” and resultant curtailment of speech. https://medium.com/@SenatorBenCardin/setting-the-record-straight-nothing-in-the-the-israel-anti-boycott-act-restricts-constitutionally-13bfa7428d8
It’s wrong to outlaw the thin edge of the wedge. When it gets to the thick edge, there may be laws that apply.
Why shouldn’t the US by its laws come to the aid of a close and key ally against which malign forces are mounting a multifaceted assault of which BDS is a part? Let people criticise Israel all they like but economic war is still war.
What are you going to do? Force people at gunpoint to do business with Israelis?
Coming to the aid of Israel is fine. But you’re now evading the issue of the “thin wedge” that you raised in your previous comment. If you’re going to give the government the power to stop thin wedges, then you’ve given it the power to control just about everything (religion, speech, sexual relations, food preferences, sports, commerce, etc.) because everything can be perceived as a thin wedge that would lead to something intolerable down the road.
And economic boycotts conducted by private parties are not “war” as understood by international treaties or the common sense of the term as used in our constitution and by everyone over the millenia.
Sounds to me like a recipe for never doing anything until it’s too late. Is there any government action that can’t be dressed up as infringing someone’s private interests, no matter how obscurely?
And maybe we should not – in this millennium- be bound by the norms of ancient history.
Go easy on the “gunpoint” rhetoric! Thanks to Israel’s dynamic and innovative economic model most people do business with Israel,indirectly at least, on a regular basis.
Nope. I use it against the Left, I’m going to use it against you. Banning a political position means threatening those who hold it with violence if they continue to express it. If you are not willing to condone violence in the name of your proposed goal, you should not advocate the use of government to achieve it.
There is no legal difference between what you are proposing and forcing caterers to serve same sex unions. A person is free to engage, or not engage in business with whomever he wishes without interference from the state.
Spoken like a true Progressive.
No, it doesn’t sound like that to you, or to anyone else.
And we’re not talking about infringing on private interests, but on well-established private rights.
The last millennium wasn’t totalitarian enough for you?
Scroll up and see who brought past millennia into this conversation.
Then have a think, or do some research, about how Jews were treated in the last millennium – not just in the last century, but for the previous centuries also, before there was ever a State of Israel. If wanting to avoid repetition of those horrors makes me a progressive then I wear the badge with pride.
I really think you don’t appreciate what BDS is all about. Or maybe you do? Well I’m not OK with individuals or corporations being harassed and blackened for doing business with Israel.
Scroll up and see who brought totalitarian ideas of government into this conversation.
An earthquake has a frequency of less than 20Hz. You’re shifting your ground and changing the topic at somewhere around the same frequency.
Once upon a time liberals and civil libertarians would quote the words, “I may disagree with what you say, but I’ll defend to the death your right to say it.” Are you familiar with that statement?