The First Amendment Protects the Right to Boycott Israel
Brian Hauss, ACLU Staff Attorney, Speech, Privacy, and Technology Project
July 20, 2017
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Earlier this week, the ACLU sent a letter  to members of Congress opposing the Israel Anti-Boycott Act . The bill would amend existing law to prohibit people in the United States from supporting boycotts targeting Israel — making it a felony to choose not to engage in commerce with companies doing business in Israel and its settlements in the occupied Palestinian territories.
Violations would be punishable by a civil penalty that could reach $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.
The bill is aimed at advocates of boycotts targeting Israel, most notably the Boycott, Divestment, Sanctions (BDS) movement — a global campaign that seeks to apply economic and political pressure on Israel to comply with international law. Specifically, the bill sponsors intend the act as a response to the U.N. Human Rights Council’s 2016 resolution  calling on companies to respect human rights , including in occupied Palestinian territories.
No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.
In fact, the right to boycott is one of the brightest stars in our constitutional firmament. The American Revolution was founded  on boycotts against British goods to protest excessive taxes. John Jay led  a boycott against
New York merchants who engaged in the slave trade. And the Montgomery bus boycott  of 1955–1956 was a major turning point in the struggle for civil rights in the Jim Crow South. In the 1970s and 1980s, colleges and universities led a widespread campaign  to boycott and divest from South Africa, in protest of apartheid. In 2015, football players at the University of Missouri went on strike  until the school addressed acute racial tensions on campus. And North Carolina’s law prohibiting transgender people from accessing restrooms and other facilities consistent with their gender identities sparked  massive boycotts by businesses and individuals.
Boycotts are a form of collective action that allows ordinary people to make their voices heard. For precisely this reason, the Supreme Court has held that the First Amendment protects the right to boycott. The court’s landmark decision in
NAACP v Claiborne Hardware
Co.  affirmed the
constitutional right of NAACP
activists to hold a mass
economic boycott of
in Port Gibson, Mississippi,
to protest the community’s
persistent racial inequality
and segregation. In ringing
language, the court held that
the boycotters’ exercise of
their rights to “speech,
assembly, and petition. . .
to change a social order
that had consistently
treated them as second-
class citizens” rested “on
the highest rung of the
hierarchy of First
This is a proud
Today, though, the right
to boycott is under
assault. Over the past
several years, federal,
state, and local legislators have introduced wave after wave  of legislation seeking to stamp out boycotts and divestment campaigns aimed at Israel. One such law, passed earlier this year by Nassau County in New York, prohibits the county from doing business with people who support the BDS movement. As a result, Roger Waters of Pink Floyd fame could be banned  from playing at the Nassau Coliseum in New York. Similar laws have been passed in Arizona  and Kansas .
None of them comport with the First Amendment.
The Israel Anti-Boycott Act introduced in Congress goes a step further, threatening severe civil and criminal punishment against individuals who refrain from doing business with Israel because of their political opposition to its government’s actions. The bill amends two existing laws, the Export Administration Act of 1979  and the Export-Import Bank Act of 1945 , which prohibit certain boycotts sponsored by foreign governments.
The bill would expand the application of those laws in a number of ways. It would expand the laws to prohibit boycotts called for by international organizations, like the United Nations and the European Union; it would threaten sanctions against people who boycott businesses operating in Israeli settlements in the occupied Palestinian territories; and it would prohibit even requests for information about companies’ business relationships with Israel and Israeli companies. This expansive language would likely chill a wide range of political activity in the United States directed at the Israeli government — activity that is constitutionally protected, regardless whether members of Congress agree with it.
Kirsten Gillibrand (D-NY) is one of several Senators who have withdrawn support for S.720 after hearing of ACLU concerns. A number of the bill’s sponsors were apparently surprised  by the ACLU’s free speech concerns with the bill. Several of them have now expressed their intention to review the legislation with the ACLU’s civil rights and civil liberties concerns in mind. We hope they do the right thing by backing away from any bill that violates our First Amendment rights.
Political Action Anti-BDS Legislation
All of our videos on this page are focused on what is happening with anti-BDS legislation in the United States, but the problems they describe apply equally to what is arising in European governments and on other continents. See articles about that farther down the page.
This video from IMEU vividly tells the story of this 21st century struggle for long-held rights that are being threatened - 90 seconds.
Statements and actions
by United Methodists
Faith Groups Condemn Anti-BDS legislation– January 2019 See the statement from UMKR and 14 Faith Partners
United Methodists and broad faith coalition call on Americans to protect First Amendment rights– November 2017
Dozens of faith organizations published a full-page newspaper ad, defending the right to boycott as constitutionally protected free speech See the ad
Twenty Christian Leaders representing 17 national organizations send open letter to Congress, opposing anti-BDS legislation– November 2017See the letter
Fifteen Christian Organizations Send Briefing Paper to the White House and Congress– February 2017
In February 2017, fifteen Christian organizations – including the General Board of Church and Society, United Methodist Church – sent a briefing paper to all members of Congress and to the White House. It calls for U.S. policies that promote peace, justice, and equality for Israelis and Palestinians.
The paper includes a call for our leaders to the commit to "Protecting the rights of U.S. citizens seeking to carry out nonviolent economic protests to challenge unjust policies." See the briefing paper
Employing Economic Measures as Nonviolent Toolsfor Justice In the Israeli-Palestinian Context – August 2016
The 2016 Western Jurisdictional Conference of the United Methodist Church Opposes Anti-BDS Legislation – July 2016
The Western Jurisdiction of The United Methodist Church includes hundreds of thousands of church members and thousands of congregations in eight annual conferences: Alaska, California-Nevada, California-Pacific, Desert Southwest, Oregon-Idaho, Pacific Northwest, Rocky Mountain, and Yellowstone.
At its quadrennial conference in July 2016, the WJC unanimously adopted the resolution "Protecting the Right to Peacefully Address Injustice through Boycotts, Divestment and Sanctions." See the resolution
UMKR Opposes Anti-BDS Legislation
– January 2016
Early in the rise of this legislative attack in the U.S., UMKR published our position paper. See the paper
As of January 2020, over 100 legislative measures have been introduced in the United States to target advocacy for Palestinian rights. They have appeared in local and state legislatures and in the U.S. Congress. Over 2 dozen U.S. states have adopted anti-boycott laws, including five executive orders issued by governors.
Palestine Legal is one of the leading
organizations fighting this legislative
onslaught, along with such civil rights
partners as the ACLU and the Center
for Constitutional Rights. They are
informing American citizens of their
rights, presenting court challenges, and getting laws changed in several states.
Use their interactive map to discover where these laws exist in the US; click on each state to get details: SEE THE MAP.
Federal Legislation in the United States
Palestine Legal also has the latest info on what is happening with anti-BDS legislation in the US Congress. Go there
Boycott and Divestment, Frequently Asked Questions
Many helpful answers from Palestine Legal, about antisemitism,
what is legal in the US, and more. Get this resource
This is the key issue behind anti-BDS legislation and so many attacks on the struggle for Palestinian liberation.
Antisemitism—hatred, violence, intimidation or discrimination against Jews because of their ethnic and religious identity—is rampant and deadly. However, despite the clear threat of anti-Jewish rhetoric and attacks from white supremacists, many Israel lobby groups have focused on redefining antisemitism to include criticism of Israel, in order to make it a weapon against activism for Palestinian rights.
The Palestine Exception to Free Speech
This ground-breaking comprehensive
report from Palestine Legal vividly
documents the many fronts on which
this historic 21st century struggle for
Americans' rights is being fought.
See excerpts from the Executive Summary
in the column on the right.
ACLU Letter to Congress,
Opposing Anti-BDS Legislation
July 17, 2017
RE: Oppose S. 720 – Israel Anti-Boycott Act
We write today in opposition to S. 720, also known as the Israel Anti-Boycott Act. We understand that proponents of the bill are seeking additional co-sponsors. We urge you to refrain from co-sponsoring the legislation because it would punish individuals for no reason other than their political beliefs. We also urge you to oppose the bill, whether in committee or on the floor, unless it has undergone significant revision to resolve its constitutional infirmities.
The bill seeks to expand the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 which, among other things, prohibit U.S. persons from complying with a foreign government’s request to boycott a country friendly to the U.S. The bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts. Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.
We take no position for or against the effort to boycott Israel or any foreign country, for that matter. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.
This bill would impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies. There are millions of businesses and individuals who do no business with Israel, or with companies doing business there, for a number of reasons.
Some, like those who would face serious financial penalties and jail time under the bill, actively avoid purchasing goods or services from companies that do business in Israel and the Palestinian Occupied Territories because of a political viewpoint opposed to Israeli policy.
Others may refrain from Israeli-related business based on political beliefs, but choose not to publicly announce their reasoning. Still others do no business with companies in Israel for purely pragmatic reasons. Under the bill, however, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment – even though there are many others who engage in the very same behavior. In short, the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment.
The ACLU has long supported laws prohibiting discrimination, but this bill cannot fairly be characterized as an anti-discrimination measure, as some would argue. 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. Whatever their merits, such boycotts rightly enjoy First Amendment protection. By penalizing those who support international boycotts of Israel, S.720 seeks only to punish the exercise of constitutional rights.
Accordingly, we urge you not to co-sponsor this bill and to oppose it when it comes before you either in Committee or on the floor. Please contact our advisor on First Amendment issues Michael Macleod-Ball at 202.253.7589 if you have questions or comments about ACLU’s opposition to this legislation.
National Political Director
Protecting the Right to Boycott and Divest
to Address Injustice
Due to massive organizing and funding by Israel Lobbies in the United States and European countries, under some clear direction and coordination from the government of Israel, the right to address and correct injustice with economic action like boycotts and divestment is in danger in many places that claim to uphold democratic values. This is happening because the BDS movement (Boycott, Divestment, and Sanctions) to achieve freedom, justice and equality for the Palestinian people has been growing in influence and having significant successes around the world.
In reaction to those successes, those who defend Israel's policies toward and treatment of the Palestinian have organized to influence governmental leaders and bodies and achieve the passage of policies, laws, and executive orders that treat activism for Palestinian rights as a form of bigotry against Jews, i.e. antisemitism.
The U.S. Supreme Court has made clear that boycotts and divestment campaigns to address injustice are one way that people express their political views, and those campaigns must be considered protected under our right to free speech. That principle applies anywhere that the right to free speech is valued.
Advocates for Palestinian rights, such as UMKR and many of our allies, have not been silent under this assault on our free speech rights. Faith communities and secular groups have been fighting to protect our rights, with statements to government leaders, court cases, and more.
ON THIS PAGE:
• Resources from: Palestine Legal, US Campaign for Palestininian Rights and
the ACLU (American Civil Liberties Union).
• News & Commentary on Anti-BDS Legislation in the US
• News reports on similar developments beyond the United States
• 4 short videos to learn by watching and listening
• In the yellow box on the right, find links to our website pages with important public statements, letters, and papers by UMKR, other United Methodist bodies and leaders, and other denominations and faith organizations.
ACLU Attorney Brian Hauss has been one of the principal ACLU staff writing and speaking about this legislation. Watch this 4-minute interview in which he explains the problems with anti-BDS legislation.
ACLU Articles on Anti-BDS Legislation
Congress, Laws Suppressing Boycotts of Israel Are Unconstitutional. Sincerely, Three Federal Courts. – May 2019 Read it
Laws Suppressing Boycotts of Israel Don’t Prevent Discrimination — They Violate Civil Liberties – February 2019 Read it
In Congress, a Threat to Americans’ First Amendment Right to Boycott – January 2019 Read it
The New Israel Anti-Boycott Act Is Still Unconstitutional – March 2018 Read it
Laws Targeting Israel Boycotts Fail Again in Court – September 2018 Read it
Kansas Doesn’t Even Try to Defend Its Israel Anti-Boycott Law – November 2017 Read it
If You’re Boycotting Israel in This Texas Town, Then No Hurricane Relief for You – October 2017 Read it
This 10-minute video from Al Jazeera provides an excellent overview of this legislation in Congress and American responses to it.
Founded in 1920 and dedicated to defending Americans civil rights, over the last century the ACLU has earned a sterling reputation in the United States that cannot be matched.
[UMKR notes that the founding chairman of the ACLU who led that body for 20 years, was the Methodist minister and activist Harry F. Ward; Ward was also a co-founder of Methodist Federation for Social Action in 1907, serving as its director for over 20 years.]
Many activist organizations had raised alarms about anti-BDS legislation, but it was when the ACLU sent a letter to all members of Congress explaining the constitutional problems that many members of Congress said they would have to re-consider their support, because the ACLU was opposed.
In the column on the right, see a letter to Congress sent by the ACLU in July 2017.
General Conference 2020 has been
scheduled for Aug-Sept 2022. Our justice legislation is still vital & needs
YOUR support! LEARN MORE:
The ‘Combating BDS Act’ Is Unconstitutional
On January 3, 2019, Sen. Marco Rubio (R-FL) introduced S.1, which incorporated four bills from the 2018 congressional session, including the unconstitutional Combating BDS Act. On January 8, Rep. Michael McCaul (R-TX) introduced a similar bill in the House, H.R.336.
See the USCPR memo setting out the constitutional concerns with these bills, which encourage U.S. states to punish people who boycott for Palestinian rights. Get the memo
See also: the coalition statement about this legislation, from UMKR and over a dozen faith partners
Support Freedom and Justice
in the U.S. & Palestine/Israel
House Resolution 246 "Opposing efforts to delegitimize the State of Israel and the Global Boycott, Divestment, and Sanctions Movement targeting Israel" (and its companion bill in the Senate, S.Res. 120) is another bill that attacks and demonizes the movement for Palestinian rights. USCPR has an excellent memo that lays out the serious problems with these resolutions and why they should be opposed. Get this memo
for our work to continue.
UMKR needs your support
🔶 Something new in here 🔴 New on our site
Outdoor mural and plaque in Port Gibson, Mississippi commemorate historic 1966 boycott and 1982 Supreme Court decision.
Reports & Commentary on Anti-BDS Legislation in U.S.
States Use Anti-Boycott Laws to Punish Responsible Businesses - April 2019
See it at Human Rights Watch
‘The Palestine Exception’: War on BDS is now a War on American Democracy
See it at Foreign Policy Journal
Congress Is Looking to Punish Anyone Who Boycotts Israel See it at GQ
U.S. Lawmakers Seek to Criminally Outlaw Support for Boycott Campaign Against Israel
See it at The Intercept
Why an Effort to Thwart Some Boycotts of Israel Fails the Free-Speech Test
See it at The Atlantic
Nearly 50 Senators Want to Make It a Felony
to Boycott Israel See it at The Nation
Beyond the United States
This is not a comprehensive review, but a small sampling of what is happening with anti-BDS laws and related policies around the world. It is difficult to find one source that has collected such information on a global scale, and UMKR would welcome any other information our readers may have on this subject. Email us at: email@example.com
IHRA Definition of Antisemitism
As noted near the top of this page, in the resources from Palestine Legal, redefining antisemitism is a primary weapon used against the BDS movement and other activism for Palestinian rights.
The definition of antisemitism being promoted by the IHRA, The Holocaust Remembrance Alliance, blurs a crucial distinction that must be made: bigotry against Jews on the one hand and criticism of the policies and practices of Israel, both past and present, on the other.
The IHRA definition is being used to weaponize the accusation of antisemitism and shut down free speech about Israel’s human rights abuses.
I drafted the definition of antisemitism.
Rightwing Jews areweaponizing it.
by Kenneth Stern, The Guardian, Dec 2019
As of 1 February 2020, the IHRA definition of antisemitism has been adopted or endorsed by the following governments or bodies therein:
United Kingdom (2016), Israel ( 2017), Austria (2017), Romania (2017), Germany (2017), Bulgaria (2017), European Union (2017), Belgium (2018), Slovenia (2018), Sweden (2018), Lithuania (2018), Republic of North Macedonia (2018), Netherlands (2018), Slovakia (2018), Republic of Moldova (2019), Czech Republic (2019), Hungary (2019), Canada (2019), Luxembourg (2019), Greece (2019), France (2019), United States (2019), Cyprus (2019), Italy (2020), Sweden (2020),
German Parliament’s resolution says BDS movement is anti-Semitic,
resolution denounced by Palestinian Christians and all of Palestinian society
This was a huge story in mid-2019. See a good roundup of news and commentary that came out at that time, at PalestinePortal.org
In Germany, the anti-BDS zeitgeist has taken over
240 Israel and Jewish professors urge Germany not to enforce anti-BDS law
German court rules anti-BDS motion breaches principle of equality
UN experts publish letter criticising German anti-BDS law
France's criminalisation of Israel boycotts sparks free speech debate
BDS is the French exception to international boycotts
France to criminalize anti-Zionism
French resist effort to censor criticism of Zionism
U.K. Plans to Pass Anti-B.D.S. Law
'Deeply damaging': Anger as Boris Johnson plans 'anti-BDS' law
Boycotting Israeli goods is about to become a criminal offence -
so much for 'power to the people'
Denmark to suspend funding to BDS groups
Czech lawmakers pass resolution condemning BDS movement
European parties are urged to agree Israel boycott tactics are antisemitic
UNITED NATIONS/ INTERNATIONAL
BDS: In the crosshairs of human rights colonialism
Timeline: International attempts to boycott BDS