In a piece in today’s Washington Post arguing in favor of a bill before Congress that would expand current American laws barring Americans from taking part in boycotts by international organizations such as the Arab League, which called for boycotts of Israel as long ago as 1977, against companies doing business in Israel to include international organizations like the United Nations or European Union, Jonathan A. Greenblatt and Stuart Eizenstat attempt to push back against the argument that such legislation would be a violation of the First Amendment:
In criticizing the pending anti-boycott legislation, the ACLU and other opponents ignore the four-decade track record of the 1977 law. They have not cited a single instance in which “political beliefs” have led to civil or criminal penalties under current law. Courts have repeatedly upheld the 1977 act against constitutional challenges on free-speech grounds as a legitimate restriction on commercial conduct.
To be clear, criticism of Israel, its treatment of Palestinians and its settlement policies are indeed protected by the First Amendment as free speech. The Israel Anti-Boycott Act does not target the rights of U.S. individuals and companies to criticize Israel, which — like any country — is subject to criticism for its policies.
What companies and individuals would not be able to do under this legislation, however, is boycott Israel at the behest of international governmental organizations, just as they are now prohibited from doing at the behest of Arab nations. Congress has wide constitutional authority to limit such discriminatory international commercial conduct that lawmakers find contrary to U.S. national interests.
This argument is meant to counter the argument that civil liberties advocates and the organizations they represent have made that barring an American citizen from taking part in a boycott, regardless of the reason, would clearly be a violation of the First Amendment and therefore unconstitutional. One of the primary arguments in that regard was advanced by the American Civil Liberties Union in a post on its website earlier this summer:
On its face, the bill appears to directly prohibit boycott activity that is protected under the First Amendment. Even if the bill could be interpreted more narrowly, as some of its supporters claim, its broad language could still chill protected expression by scaring people into self-censorship. Either way, the bill would impose serious First Amendment harms.
Some people have argued that the bill effectively accomplishes nothing, because no international governmental organization is currently engaged in a boycott against Israel. But, as noted above, the bill’s statement of policy expressly opposes the UNHRC’s March 2016 resolution calling for a database of companies operating in the occupied Palestinian territories, and it declares that Congress views “such policies as actions to boycott, divest from, or sanction Israel.”
Reading the bill in light of its own statement of policy, a reasonable person could plausibly infer that the UNHRC’s March 2016 resolution amounts to a “request” for a boycott within the meaning of the bill. That would mean that anyone who attempts to support the resolution, as Congress has described it, by refusing to purchase goods made in Israel or the occupied Palestinian territories would be violating the law. Given the severe penalties at stake, many people would undoubtedly choose to refrain rather than risk prosecution.
But even apart from limiting the right to boycott by refusing to purchase goods for political reasons, the bill infringes on pure speech. It prohibits even requests for information about whether a person is doing business in Israel in order to support a boycott of Israel, regardless of whether the requester is actually engaged in a boycott. This additional prohibition will chill people from seeking information about companies boycotting Israel or engaged in business dealings in Israel.
For example, suppose a consumer wishes to make a decision about whether to purchase a product made by a certain company. She posts a request on Facebook seeking information about that company’s environmental, labor rights, or human rights record. Her request is protected speech. But if the company she is asking about operates in the occupied Palestinian territories, and she is asking about that activity in order to support the U.N.’s resolution and then publicly shares any information she receives, she would have reason to fear prosecution under the law.
All of this concerns, of course, the so-called Boycott, Divest, and Sanctions Movement, or “BDS” for short, which seeks to persuade other nations, international organizations, and corporations to stop doing business with Israel until Israel “meets its obligations under international law.” In recent years, the movement has become more controversial due to both its tactics and the rhetoric that it uses, which many have claimed has become increasingly anti-Semitic and anti-Israel, and many states have adopted their own version of laws prohibiting government entities, corporations, and individuals from taking part in or advocating in favor of the boycott that the BDS movement is seeking to promote. As a matter of policy, I am not taking any position with regard to the BDS movement itself or the assessments regarding its rhetoric. As a matter of law, though, it seems clear to me that the argument that laws that seek to make participation in the boycott illegal are permissible are especially problematic.
Eugene Volokh and Eugene Kontrovich, both of whom post at The Volokh Conspiracy on First Amendment issues, have written posts openly rebutting the ACLU’s arguments. Given the fact that both men are far better versed on this subject than I am, I have given their arguments considerable weight. Additionally, as Kontrovich points out, the 1977 law has been upheld against First Amendment challenges in the past, although it has been some time since such a case has been heard by any Court. In the end, though, it strikes me that the ACLU and the opponents of the proposed law have the better argument and that the proposed legislation as well as, perhaps, the entire underlying law itself, are or should be found to be unconstitutional.
In making their arguments in favor of the anti-boycott legislation, people such as Greenblatt, Eizenstat, Volokh, and Kontrovich argue in part that the law is aimed not at those who advocate for a boycott, but only at those who seek to participate or engage in the boycott itself. This strikes me as being a distinction without a difference given the fact that the Supreme Court has held on several occasions that conduct is as much protected as actual speech under the First Amendment. As far back as 1931, the Court ruled in Stromberg v. California that a California law barring the display of red flags in public was unconstitutional, ruling that peaceful conduct that was not disruptive of public order was “repugnant” to the Constitution. In 1945, the Court ruled in West Virginia State Board of Education v. Barnette, that the First Amendment protected the rights of students who refused to take part in the recitation of the Pledge of Allegiance. In ruling in that case, Justice Robert Jackson noted that the very purpose of the Bill of Rights was to remove certain subjects, such as freedom of speech from “the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Some twenty-four years later, in Tinker v. Des Moines Independent Community School District, the Court ruled that a school district could not bar students from wearing black arm bands to school to protest the Vietnam War, a ruling that vastly expanded the understanding of the First Amendment rights of students. Two years after that, the Court ruled in Cohen v. California that a defendant could not be punished for wearing a jacket that said “Fuck the Draft” in a public place, saying that the act the law was aimed at punished “speech” rather than “conduct.” In 1989, the Court ruled in Texas v. Johnson that laws criminalizing burning the American flag were an unconstitutional abridgment of the First Amendment and that the burning of the flag constituted expressive conduct that was clearly within the boundaries of the First Amendment. More recently, the Court held in Snyder v. Phelps that the Westboro Baptist Church could not be punished for holding protests on public property outside the funerals of American soldiers who had died in Iraq or Afghanistan.
In each of these cases and others, the Supreme Court has made clear that, while there is generally a distinction under First Amendment law between speech and conduct, there are circumstances when conduct clearly falls within the category of expressive speech that was entitled to protection under the First Amendment. Just as these cases concerned conduct as much as they did actual speech, participating in a boycott, or arguing in favor of others to do so, is arguably a form of speech protected by the First Amendment that is deserving of the same respect as something that someone says in public, in the written form, or electronically. In fact, politically motivated boycotts are a long tradition in American politics on both sides of the political aisle. A law that bars them in this instance is arguably as impermissible as one that would bar participation in a boycott of the fast food outlet Chik-Fil-A due to the fact that its owners have donated to causes opposed to marriage equality or LGBT rights. The fact that the subject matter of these boycotts is the State of Israel rather than a political cause is, in the end, immaterial.
As I noted above, I express no opinion about the BDS movement itself or the legitimacy of its positions. Rather, I am arguing that the laws that prohibit Americans and American corporations from participating in the boycott that the movement calls for is, and should be found to be, unconstitutional. If the legal system is called on to rule on this issue and my argument ends up on the losing side, I’ll accept that argument and move on. Based on existing precedent and the Supreme Court’s rulings on the First Amendment in recent years, I believe my position is correct and that the bill currently pending in Congress would be found unconstitutional to be correct.
