There has been a great deal of misleading discussion about a bill currently pending in the Senate called the Israel Anti-Boycott Act. Many individuals and organizations, including the ACLU, are spreading hyperbolic claims that the proposed law would punish individuals based solely on the expression of political belief. This is a false claim. Equally false are claims that the bill would criminalize the Boycott, Divest, Sanction movement or statements of support for the BDS movement.
As always, the first step in determining what a law would do is to go to the text itself. The proposed anti-boycott act would amend a 1979 law (codified at 50 U.S. Code § 4607) by expanding its prohibition on commercial boycotts directed at friendly nations in coordination with a foreign nation. The expansion simply includes boycotts directed at allies in coordination with an “international governmental organization.”
The background here is that member nations of the Arab League have long coordinated a boycott of Israel and attempted to coerce U.S. businesses to participate in the boycott or find themselves blacklisted in Arab League nations in retaliation. Because the UN Human Rights Council recently called for a boycott of Israel, several senators want to expand the pre-existing boycott ban to explicitly include international governmental organizations like the UN and the European Union.
The law is not terribly complicated. It prohibits a list of actions taken with the intent to support or comply with a boycott imposed by a foreign nation or international governmental organization. Put another way, to run afoul of the law a person or business would have to commit one of the prohibited actions with the improper motive.
Notably, the Israel Anti-Boycott Act does not change the list of prohibited actions. The same actions that have been forbidden since 1979 if taken with the improper motive would remain forbidden under the proposed law.
Those actions include boycotting an ally nation and communicating to a foreign nation or governmental group steps taken to support or comply with boycott demands. This is where First Amendment concerns arise because communicating boycott support or compliance is necessarily an act of speech. But this is also where opponents of the bill overstate their case.
The law does not criminalize communications of support or compliance with a boycott generally; it criminalizes communications of support or compliance in the specific case where those communications are made with the intent to foster or comply with a boycott imposed by a foreign nation or international governmental organization. Nor does the law punish solely for the expression of political belief, as the ACLU claims, but rather prohibits a specific series of listed actions.
Importantly, the law has a carve-out that provides that simply not doing business with a boycotted nation “does not indicate the existence of the intent required to establish a violation” of the law.
This may be made clearer with an example.
The law would, for example, prohibit a company from furnishing to a foreign government information about whether an employee has donated to an Israeli charity (a prohibited action under the law) if the motive in doing so is to comply with or support a foreign nation’s boycott of Israel. But the law would not prohibit a company from furnishing such information if it had some other motive in doing so. Nor does it prohibit complying with or supporting a foreign nation’s boycott of Israel absent one of the prohibited actions.
Thus, much of the discussion of the bill has been overheated and overbroad. It would not reach campus BDS efforts, nor does it criminalize personal boycotts or statements in support of personal boycotts.
That does not mean this is a wise law. The point of the 1979 law was to prevent retaliatory boycotts and blacklists from Arab League nations. It succeeded. But, unlike nations, international governmental organizations like the UN lack the ability to impose retaliatory boycotts and blacklists. The need for the new law just does not match the rationale for the old one.
Additionally, should the law come under legal challenge, it is unlikely that it would survive without the courts paring it down to avoid constitutional issues. Lawsuits over the 1979 version upheld the law on the theory that commercial speech was less deserving of First Amendment protection. (See here for an example.)
However, this past June, that view was rejected by at least five justices of the Supreme Court. Writing in the patent case Matal v. Tam, five justices indicated that even commercial speech restrictions should be subject to strict scrutiny where at least, as here, the restriction is based on the viewpoint of the speaker. The Israel Anti-Boycott Act, insofar as it amends existing law, is just such a law based on viewpoint discrimination.
As a result, although it is not nearly as dire as its opponents make it out to be, the law’s supporters should reconsider the portions implicating freedom of speech.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Washington, D.C.
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