Anti-BDS Bill May Violate Constitutionally-Protected Free Speech, And Here’s Why

Written by Joel Griffith on . Posted in Op-Ed

Ed. Note: The following is a response to “BDS Ban: Long-Awaited Shield or Self-Inflicted Wound” by Jackson Richman and Samuel Kramer (August 4 issue).

The Boycott, Divestment, Sanctions (BDS) movement exemplifies contemporary anti-Semitism. The founder of BDS, Omar Barghouti, has condoned Palestinian violence and denies a Jewish connection to the land of Israel. In a 2014 speech at UCLA, Barghouti stated: “[Palestinians have a right to] resistance by any means, including armed resistance ... [Jews] aren’t indigenous just because you say you are … [Jews] are not a people … the UN’s principle of the right to self-determination applies only to colonized people who want to acquire their rights.”

His odious views are common among BDS supporters. I’ve documented this anti-Semitism and tacit approval of anti-Israel terrorists before.

The Israel Anti-Boycott Act sponsored by Senator Benjamin Cardin (D-MD) has been touted as a possible counter to this movement. If signed into law, however, its implementation may be an impossibility based on constitutional grounds.

The Israel Anti-Boycott Act amends the Export Administration Act of 1979. The original act, which prohibited U.S. entities from complying with requests from the Arab League to boycott Israel, would remain in place. The proposed amendment to the original 1979 legislation would make it unlawful for U.S. businesses and individuals to support requests from foreign countries to boycott nations “friendly” to the United States or to support any boycott “fostered or imposed by an intergovernmental organization against Israel or any request by any intergovernmental organization to impose such a boycott.”

Furthermore, the act amends the Import-Export Bank Act of 1945, which prohibits the bank from granting credit to entities who proliferate nuclear weapons and nuclear materials to non-nuclear weapon countries. The Export-Import Bank would now be permitted to deny credit to entities in an effort to counter “politically motivated” policies and actions that are intended to “limit commercial relations” with Israeli entities.

At issue is whether such a prohibition on boycotts — and potential denial of Export-Import Bank funding — would violate First Amendment free speech guarantees. Without a doubt, some boycotts are a constitutional exercise of free speech. In 1966, the NAACP helped organize a boycott by several hundred black persons against white businesses in the area, in an effort to achieve racial equality and justice. Seventeen of these businesses sued 146 individuals and two corporations — the NAACP and the Mississippi Action for Progress — seeking injunctive relief against the boycott and damages. In an 8-0 decision, the Supreme Court held against these merchants and reversed a prior award of more than $1 million in damages (NAACP v. Claiborne, 458 U.S. 886, 1982).

The Court stated, “Through exercise of their First Amendment rights of speech, assembly, association, and petition, rather than through riot or revolution, petitioners sought to bring about political, social, and economic change.”

In addition, the Court held against a Mississippi anti-boycott statute. “While States have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in the boycott in this case,” ruled the Court.

Nor does intent to inflict economic harm remove a boycott from free speech protection. In defending a decision by New York Governor Cuomo to ban government contracts with firms boycotting Israel, the governor’s counsel, Alphonso David, reportedly told The New Yorker, “This [boycott] is not protected speech … This is conduct that is being advanced to inflict economic harm.” But NAACP v. Claiborne held “the award for all damages ‘resulting from the boycott’ cannot be sustained where … all of the respondents’ business losses were not proximately caused by violence or threats of violence.”

The fact that boycotts are a valid exercise of First Amendment free speech does not necessarily mean the Israel Anti-Boycott Act is unconstitutional. Once again, according to the Supreme Court in NAACP v. Claiborne, “the presence of protected activity, however, does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association.” 

In short, congressional intent may be to advance U.S. foreign policy interests rather than an effort to stymie the free speech of boycott proponents. If so, any impact on free speech may be incidental to that congressional goal. In such a situation, the act may survive court scrutiny. If, however, the Supreme Court were to find that Congress is simply attempting to stymie free speech, the legislation may be successfully challenged.  Even hate speech — and BDS certainly qualifies as such — is protected speech.

Does the act’s granting of permission to the Export-Import Bank to withhold funds from businesses engaged in “politically motivated” boycotts against Israel indicate an attempt by the government to suppress speech? For now, the proverbial jury is out. One thing is for certain: A strong bipartisan majority in the United States recognizes the anti-Semitism that inspires boycotts against Israel.

By Joel Griffith

 Joel Griffith is an economics policy expert. He worked as a research associate at the Heritage Foundation, where his focus was public policy matters involving economic and fiscal issues, as well as legislative analysis. His writing has appeared on Fox Business News, the Washington Times, The Wall Street Journal, The National Interest, Forbes online, National Review, Times of Israel, and other outlets. He has also worked to pursue justice as a lawyer on behalf of U.S. victims of international terrorism, including terror sponsored by the Palestinian Authority.