The US anti-BDS bill may be bad, but not as bad as some critics say

BERKELEY, Calif. (JTA) — A bill being weighed in Congress that would target boycotts of Israel and its settlements is sparking widespread outrage, especially after investigative journalist Glenn Greenwald claimed it “criminalizes free speech.”  The post relied on a letter from the ACLU expressing First Amendment concerns over the Israel Anti-Boycott Act. By contrast, the co-sponsors of the bill insist that it in no way hampers free speech.

So who is right?

Statutory analysis is complex under the best of circumstances, and the Israeli-Palestinian conflict does not tend to bring out people’s sense of care and nuance. What has been largely missing from the discussion over the Israel Anti-Boycott Act is a close, careful reading of the bill’s text and relevant statutory law — a non-hyperbolic read, but also a non-apologetic one. In short: This law has issues. It poses genuine speech concerns, and it seems to respond to a nonexistent problem.

But the more extreme claims that it bans boycotts of Israel are untrue.

A bit of background can help set the stage. While Arab countries have boycotted Israel since before there was an Israel, in the 1970s they became far more aggressive in demanding that their trading partners join them in refusing to do business with Israel. They imposed a secondary boycott whereby companies had to prove they weren’t doing business with Israel in order to do business with the Arab countries.

In response, America passed a law prohibiting several actions if they were taken “with intent to comply with, further, or support any boycott fostered or imposed by a foreign country against a country which is friendly to the United States.” These included:

* Discriminating against a person “on the basis of race, religion, sex, or national origin”;

* Providing information “with respect to the race, religion, sex, or national origin” of any American person or their employees;

* Providing information regarding whether one had any business dealings with the boycotted country; and of course,

* Boycotting the country.

This law has been upheld against First Amendment challenges. And the most anodyne way of describing the new bill is to say it merely extends the preexisting ban on boycotting an ally of the United States at the behest of a foreign country (e.g., Qatar) to include doing so at the behest of an International Governmental Organization, or IGO (e.g., the European Union or United Nations).

Importantly, neither the current law nor the proposed one bans boycotts of Israel generally. The existing anti-boycott law only prohibits actions taken “with intent to comply with, further, or support any boycott fostered or imposed by a foreign country.” Obviously, it is not generally unlawful to say whether one has business dealings with Israel. And likewise, even under this law, it is not illegal to boycott Israel — unless the reason you’re doing it is to comply with a foreign country’s demand that you do so.

If one says “I boycott Israel because I think Israel is terrible,” that remains perfectly lawful (the ACLU is simply wrong when it suggests that the law targets those who boycott Israel “because of a political viewpoint opposed to Israeli policies”). In fact, if one says “I boycott Israel because the Palestinian Campaign for the Academic and Cultural Boycott of Israel tells me to,” that’s entirely lawful, too (PACBI is neither a foreign government nor an IGO). Only boycotts done at the behest of the EU or the U.N. would be newly prohibited by the law.

The ACLU’s letter suggests that this represents unlawful viewpoint discrimination. But many laws are like this: They prohibit certain actions only when they are taken with a particular intent. For example, it is illegal to fire a Latino employee if one is motivated by racial prejudice against Latinos. Both the action and the intent are perfectly lawful on their own — it is not illegal to harbor racial prejudice, and it is not illegal to fire employees — but conjoined together they become illicit. One could characterize this as (to quote the ACLU’s letter) punishing persons “based solely on their point of view” — the same action, taken with a different (non-prejudiced) viewpoint, is lawful — but doing so would throw the entirety of American anti-discrimination law into question.

Understanding the proposed anti-boycott measure requires grasping this distinction. Critics see provisions that target “support [for] any boycott fostered or imposed by any international governmental organization against Israel,” and assume that this motive alone is being criminalized. But a close parsing of the text — and in fairness, the paragraph in question is a convoluted nightmare — shows that this phrase does not prohibit supporting a boycott of Israel, it only prohibits those aforementioned actions (e.g., discrimination against an employee, certifying one does no business with Israelis) if one is doing so to support a boycott call from a foreign government or, now, IGO .

But just because the hyperbolic reactions are off base does not mean that the law is worth backing. There is a legitimate free speech objection in how the law treats “support” for an IGO’s announced boycott. Whereas in current law the term “support” for a boycott is modulated by terms like “comply with” or “further” — suggesting more than pure expressive sympathy — in the new bill the term “support” stands unadorned. This poses a significant risk of chilling speech because whether or not Israel boycotters are doing so because they personally find the nation terrible versus because they wish to “support” a U.N. declaration that Israel is terrible will often be quite blurry. In any event, it’s not clear why that should be legally dispositive.

Other new language regarding statutory penalties — I do not believe the bill carries the risk of imprisonment, but it would be simple for its writers to to make this clear — and how “requests” for a boycott are treated also are troublesome and at the very least need reworking.

Even if these flaws were all fixed, however, there would still be a substantial difference of context: Namely, there is no serious threat that either the U.N. or the EU will call for a secondary boycott. Whereas the current law is reasonably categorized as a shield for American corporations — protecting them from being forced by foreign diktat into a boycott they do not actually endorse — this law is not responsive to any such threat.

That may or may not affect the First Amendment analysis, but it significantly undermines the law’s policy rationale. Most of the litigation over the current law came because companies were providing documentation to Arab countries showing that they were boycotting Israel in order to avoid the former nations’ secondary boycott. But if the U.N. or EU are not imposing a secondary boycott, there would be no occasion to furnish this information and thus virtually no situation where anyone could violate the law unless they admitted “we are boycotting Israel because the U.N. said to.”

Laws can be bad without being apocalyptic and inadvisable without being unconstitutional. Discussions of Israel/Palestine, in particular, suffer from a marked propensity from people on all sides to abandon care and perspective as they race to extremes. This bill does not do the more outrageous things it stands accused of. That does not mean it is well-drafted, necessary or worth the tempest it is stirring up.

(David Schraub is a lecturer at the law school and senior research fellow at the California Constitution Center at the University of California, Berkeley, School of Law and a doctoral candidate in the UC-Berkeley Department of Political Science. He writes the blog The Debate Link, where a version of this article first appeared.)