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When the American Civil Liberties Union weighed in on a Senate bill aimed at strengthening penalties against international support for boycotting Israel last week, it raised questions about the bipartisan legislation that had until then attracted little notice.
Is the Israel Anti-Boycott Act an infringement of political speech, as the ACLU contends? Or is it a strengthening of existing laws aimed at nothing more than regulating commercial activity that unfairly targets Israel?
The bill, introduced by Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio) in March, expands the scope of a 1970s law prohibiting U.S. companies from engaging in boycotts of Israel sponsored by other countries, which carries a maximum penalty of $1 million and up to 20 years in prison. Under the new measure, companies would also be prohibited from complying with boycotts sponsored by intergovernmental organizations such as the United Nations and the European Union.
But when the ACLU read the bill, it saw a threat to free speech, in that it would penalize those who don’t do business with Israel for political reasons but take no action against those who don’t do business for other reasons. Companies that have a political motive risk a civil penalty of up to $1 million and 20 years in prison, it said.
The ACLU called on senators not to support the legislation.
“This bill … 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,” ACLU national political director Faiz Shakir wrote a letter to Cardin and Portman on July 17.
That isn’t what the legislation would do, the senators responded. In a letter, they told the ACLU that the bill does not prevent either U.S. citizens or companies from expressing support for BDS, the boycott divestment and sanctions movement, engaging in their own boycott or criticizing Israeli government policy.
“Nothing in the bill restricts constitutionally-protected free speech or limits criticism of Israel or its policies,” they wrote. “Instead, it is narrowly targeted at commercial activity and is based on current law that has been constitutionally upheld.”
According to the letter, a situation where the bill would be relevant would be if the U.N. Human Rights Council requested an American company to divulge information on its business dealings with Israel or the territories in order to help the council complete a blacklist of companies that have Israeli ties. The company, it stated, would be prohibited from complying with the request.
The Senate bill has 45 co-sponsors, Democrats and Republicans. A House version has 240 cosponsors from both parties.
The ACLU’s letter sparked debate in the Jewish community over the legislation.
J Street, which opposes boycotts and supports a two-state solution, emailed Capitol Hill staffers asking them to urge members of Congress to vote against the legislation, according to the Intercept. J Street did not respond to requests for comment by press time.
J Street’s main objection, according to the email, is that the bill incorporates West Bank settlements into the definition of Israel by using a 2015 law as the basis for defining “actions to boycott, divest from, or sanction Israel,” which includes “Israeli-controlled territories.”
“By seeking to erase the legal distinction between Israel and the settlements and placing the settlements, in effect, under US legal and diplomatic protection, proponents of this definition have used purportedly anti-BDS measures as pro-settlement, anti-two-state solution vehicles,” J Street wrote.
The email also cited “possible free speech concerns” it in the email, but deferred to “free speech experts” on the details.
Jewish organizations were silent when Cardin and Portman introduced the bill. Asked by WJW this week, several responded with support.
William Daroff, senior vice president for public policy at Jewish Federations of North America, said in a statement Monday that the bill is in keeping with existing laws that are aimed at regulating commercial activity that unfairly targets Israel.
“The act involves commercial business and in no way abridges any individual’s right to freedom of speech, nor does it force any company to do business with Israel,” he wrote.
Ron Halber, executive director of the Jewish Community Relations Council of Greater Washington, said the bill meets “constitutional muster” and is in Israel’s best interest. He said people are free to choose not to buy Israeli products on their own, but adhering to a foreign boycott is a different matter.
“The United States has a right to establish commercial relations with other nations that we feel is in our best policy and we think that the Cardin legislation will simply protect that,” he said.
David Makovsky, a fellow with the Washington Institute for Near East Policy, said the bill is a bipartisan effort to fight back against international boycotts of Israel. He said the bill is not about free speech or Israeli settlements the settlements. It is about keeping the Jewish state’s best interests at heart.
“There is a legitimate debate about products made in the West Bank,” he said. “But the thrust of the bill is about corporations that want to boycott Israel.”
