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Why Is Congress Trying To Pass An Obviously Unconstitutional Bill That Would Criminalize Boycotts Of Israel?

As we've noted in the past on articles discussing this topic, I recognize that people have very, very, very strong views on both Israel and the whole "BDS" movement, and (trust me) you're not going to convince anyone about the rightness or wrongness of those views in our comments. However, even if you support the Israeli government fully, and think the BDS movement is a sham, hopefully you can still agree that an American law criminalizing supporting the BDS movement is blatantly unconstitutional.

It is true, if horrifying, that a bunch of states have passed such laws, all of which are quite clearly unconstitutional as well. Challenges to the state laws in Kansas and Arizona have already been (easily) successful. There are other legal challenges against the other laws, and they will almost certainly be tossed out as well.

The impact of these laws is absolutely ridiculous as well, even barring Houston residents from receiving hurricane relief if they didn't sign a pledge promising not to boycott Israel. That's so plainly a First Amendment violation, it's amazing that so many states have followed suit. And it's depressing that Congress is looking to do the same:

Earlier versions of the Israel Anti-Boycott Act would have made it a crime — possibly even subject to jail time — for American companies to participate in political boycotts aimed at Israel and its settlements in the occupied Palestinian territories when those boycotts were called for by international governmental organizations like the United Nations. The same went for boycotts targeting any country that is “friendly to the United States” if the boycott was not sanctioned by the United States.

Last week, the ACLU saw an updated version being considered for inclusion in the spending bill (though this text is not publicly available). While Hill offices claim the First Amendment concerns have been resolved, and potential jail time has indeed been eliminated as a possible punishment, the bill actually does nothing to cure its free speech problems. Furthermore, knowingly violating the bill could result in criminal financial penalties of up to $1 million. Were this legislation to pass, federal officials would have a new weapon at their disposal to chill and suppress speech that they found objectionable or politically unpopular.

Boycotts are clearly a freedom of expression issue. The entire point of these kinds of boycotts are to express your views on something happening in the world. To say that it's illegal to support a boycott is crazy. And it's even crazier that the US would pass such a law banning the boycott of a foreign country. This is made even crazier by the fact that it's quite obviously legal to call for a boycott of a state within the US. The Intercept's recent article highlights the insanity of this situation using NY Governor Andrew Cuomo:

One of the first states to impose such repressive restrictions on free expression was New York. In 2016, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel. “If you boycott Israel, New York State will boycott you,” Cuomo proudly tweeted, referring to a Washington Post op-ed he wrote that touted that threat in its headline.

As The Intercept reported at the time, Cuomo’s order “requires that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott. That government list is then posted publicly, and the burden falls on [the accused boycotters] to prove to the state that they do not, in fact, support such a boycott.”


What made Cuomo’s censorship directive particularly stunning was that, just two months prior to issuing this decree, he ordered New York state agencies to boycott North Carolina in protest of that state’s anti-LGBT law. Two years earlier, Cuomo banned New York state employees from all non-essential travel to Indiana to boycott that state’s enactment of an anti-LGBT law.

So, according to Cuomo, you must boycott North Carolina and Indiana, but it's a crime to boycott Israel. That's... messed up.

Again, even if you think that the BDS movement is really anti-Semitic, you should at least be able to understand the serious First Amendment problems with any such law. And the idea that Congress might try to slip something through during the lameduck session before the new Congress starts suggests even they know how ridiculous such a law would be.

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