The amended ‘Israel Anti-Boycott Act’ is still unconstitutional, and still must be stopped

Mondoweiss – by Nada Elia

On Saturday, March 3rd, Senator Ben Cardin (D-MD) released an amended version of S.720, the Israel Anti-Boycott Act he had first introduced on March 23rd of last year.  The new version of the bill was timed just ahead of  the lobbying day of the American Israel Public Affairs Committee (AIPAC), which held its annual convention in Washington DC over the March 3-4 weekend.  AIPAC is asking its supporters to lobby for this amended version of S.720, as well as and S.170, the Combating BDS Act.

In a nutshell, and in non-legalese, S.720 seeks to expand the scope of the 1979 “Export Administration Act,” which prohibits boycotts against Israel, Israeli businesses, and Israeli products, initially called for by Arab countries. The Export Administration Act specifies that it is illegal for Americans to heed a call for a boycott of Israel that is issued by a foreign government or governmental entity.  

Instigated by AIPAC, Senator Cardin’s bill, S.720,  would stem the success of BDS, and hinges on the fact that, in March 2016, the United Nations Higher Commission on Refugees (UNHCR) has issued its own call for boycott of Israeli products, including products from the West Bank settlements.  The 1979 “Export Administration Act” could not impact individuals engaging in BDS in response to the call from the Boycott National Committee, which is not a governmental entity, but a group of individuals and civilian associations scattered all across the Palestinian Diaspora.  However, as S.720 specifically defines the UNHCR as a governmental organization, anyone who boycotts any of the products the UNHCR has listed could now be subject to the penalties delineated in the 1979 Export Administration Act.

S.720 did not pass last year, even as Palestinian rights activists and civil libertarians expressed extreme concern over its infringement on their free speech amendment, which includes the right to boycott.   Indeed, the introduction of the bill set into motion intense organizing on the part of Palestinian-rights activists, who were rightly alarmed at this egregious violation of our constitutionally protected First Amendment right, all for the protection of a foreign country, Israel, as it continues its own violations of the rights of the Palestinian people.  People across the country met with their representatives at town halls, called, and wrote letters, expressing their strong opposition to the anti-BDS bill, as well as any state equivalent. And while S. 720 did not pass at the U.S. Senate level, over twenty states passed their own version of an anti-BDS law, resulting in the violation of citizens’ rights. Four very recent examples of how those bills stifle free speech came to light just this past week at the University of Houston, and the Arizona State University, and they are being challenged by the American Civil Liberties Union (ACLU) and the Council on American Islamic Relations (CAIR).

Senator Cardin claims that the amended version of S.720 does not “diminish or infringe on any right protected under the First Amendment.” However, both the US Campaign for Palestinian Rights, and the ACLU, who have delved into the new text, disagree.  Yousef Munayyer, Executive Director of the US Campaign for Palestinian Rights, explains in a statement:

“From the day the Israel Anti-Boycott Act was introduced into Congress, we have been sounding the alarm over the unconstitutional nature of this bill aimed at stifling dissent against Israel’s brutal policies toward Palestinians. Since last April, we have been encouraged to see a growing number of people push back against these repressive efforts and in defense of our right to boycott, a tactic that is used by many social justice and freedom movements.

Senator Cardin has been struggling to pass this legislation, first sneaking it into other legislation before it was ruled out of procedure, and most recently by making amendments in an attempt to buy the consent of those with free speech concerns. Those efforts fall flat and, as the ACLU has made clear, there is no way to make a bill that is designed to repress a political viewpoint compatible with the First Amendment.

This entire episode highlights the fundamental conflict between the oppressive policies of the Israeli state and the values and freedoms Americans aspire to. We hope that moving forward, our elected representatives would defend the latter instead of the former.”

S.720 states that Congress “continues to support the right of citizens of the United States to constitutionally protected free speech, including the right to express their political views by engaging in personal boycott activity of their own accord.” This wording has provided many politicians with the fig leaf necessary to rubber stamp the bill, which has secured more sponsors since Cardin released it last Saturday.  However, as the ACLU points out, a bill that is intended to stifle political boycotts cannot be made to protect free speech.

Specifically, the ACLU underlines the bill’s “fundamental constitutional defects,” and it has vowed to challenge it in court, should it pass in its revised form. The ACLU analysis of the amended version explains

“The critical failure in the bill lies in its overarching framework, which unconstitutionally seeks to suppress one side of the public debate over Israel and Palestine. The bill reiterates Congress’s opposition to ‘actions to boycott, divest from, or sanction Israel or persons doing business in Israel or Israeli-controlled territories,’ which it defines to include ‘politically motivated’ boycotts aimed at Israel.”

The ACLU concludes that “Because the bill’s fundamental purpose violates the First Amendment, it cannot be rescued by its First Amendment savings clause.”

In addition to its violation of the right to boycott, which is a form of free speech guaranteed by the First Amendment, S.720, even in its revised version, would legitimize the settlements, as well as the annexation of East Jerusalem, as it states, in various instances, its opposition to boycotts of Israeli products, but also Israeli products from East Jerusalem, as well as “Israeli-controlled territories.”  Again, the inclusion of these geographic designations is in response to the UNHCR boycott list, which specifies settlement products.

The changes to the Israel Anti-Boycott Act were introduced due to pressure from national and grassroots civil rights organizers, mobilized primarily by the US Campaign for Palestinian Rights, as well as highly-publicized public opposition to the bill from the ACLU dating back to last summer. One of the changes in this year’s bill is that people engaging in a politically-motivated boycott of Israel would no longer be subject to imprisonment, only a fine.  But the very fact that there should be a fine criminalizes political boycott. And that fine can be up to one million dollars.

Another disturbing aspect of the bill is that it does not define “domestic concern,” which could be interpreted as a corporation, a church, or even an individual.  Many churches, for example, have voted to divest from some companies doing business with Israel, notably Hewlett-Packard, because of HP’s complicity in the illegal Israeli monitoring of Palestinian movement in annexed East Jerusalem and the West bank. These churches could be fined. And individuals could also be found guilty of a “politically-motivated” boycott. As the USCPR analysis points out, “if a caterer were to boycott Israeli wines produced in illegal settlements in support of the UNHCR’s inclusion of these wineries in its database, then they could be fined under the amended version of this bill as well.”

The amended version, in other words, is still unconstitutional, and must still be opposed with the same energy and determination we had last year.

In a recent conversation in Seattle between the grassroots group Washington Freedom to Boycott (of which I am a member) and Leah Muskin-Pierret, Government Affairs Associate at the US Campaign for Palestinian Rights, we spoke of horizontal power—the widespread grassroots support for Palestine—and vertical power, which may not be as widespread, but reaches people in high places.  AIPAC, and the NRA, are examples of vertical power, that fears people power. Support for Palestine has grown very significantly over the past few years, and is now shifting from strictly horizontal, to a vertical power, one that demands that our representatives hear us, one that holds them accountable to us, the constituents who elected them. This is not change from above, it is the grassroots percolating up, breaking through, bringing about policy change that reflects the will of the people.  Recent examples in US history include the legalization of interracial marriage, gay marriage, and, in some states, recreational marijuana.

At a town hall in his home state of Maryland last year, Cardin was challenged by numerous constituents over his career-long support of Israel.  As the town hall ended, protesters chanted “Senator Cardin, you can’t hide, your bill supports apartheid.”  The amendments Cardin introduced last week, with his revised S.720, do not change that basic fact, and we need to keep protesting, as we tell all our representatives who would support this bill that they can’t hide either, and that their sponsorship also supports apartheid.

http://mondoweiss.net/2018/03/amended-boycott-unconstitutional/