In its criticism of Senate legislation against anti-Israel boycotts, the American Civil Liberties Union (ACLU) has falsely described the bill as an unconstitutional attack on free speech, a legal scholar argued in The Washington Post on Thursday.
The ACLU’s claims that Israel Anti-Boycott Act inhibits the free expression of ideas are “as weak as they are dramatic,” argued Eugene Kontorovich, a law professor at Northwestern University.
The new legislation is actually a “minor updating of a venerable statute,” namely the 1977 Export Administration Act, which prohibits “U.S. entities from participating in or cooperating with international boycotts organized by foreign countries,” Kontorovich explained. “For example, telling a Saudi company, ‘You know, we don’t happen to do business with the Zionist entity’ would be prohibited.”
While the 1977 act used broad language, it was “explicitly aimed at the Arab states’ boycott of Israel,” Kontorovich noted. “The law has been upheld against First Amendment challenges in the years after its passage and has not raised any constitutional concerns in nearly four decades since,” he added.
The Israel Anti-Boycott Act is a necessary extension of the 1977 measures, Kontorovich wrote, because United Nations agencies have begun the process of organizing boycotts of Israel:
Several United Nations agencies have initiated secondary boycotts of Israel — that is, boycotting non-Israeli companies because of their connection to the Jewish state. In support of such secondary boycotts, the U.N. Human Rights Council is preparing a blacklist of Israeli-linked companies (using such a broad definition of “supporting settlements” that the blacklist could sweep in any Israeli-linked firm).
The UNHRC’s efforts to boycott Israel are “unprecedented,” given that “the Human Rights Council clearly does not regard businesses ‘supporting’ settlements to be a human rights issue except when Israel is involved.” (Kontorovich argued this point before the UNHRC last month.)
In particular, Kontorovich took issue with the ACLU’s charge that the bill would penalize someone for expressing support of anti-Israel boycotts:
There is nothing in the bill to sustain such a criticism. The old law already forbids “support” for foreign state boycotts of Israel, and the many regulations enacted pursuant to the law already define “support” to be limited to “certain specified actions” that go well beyond merely “speech” support. … The new bill does not change or alter the meaning of “support.” It simply clarifies the list of foreign boycotts covered by the law.
He pointed out that “the current law’s ban on ‘support’ of the Arab League boycott has never been used to punish opponents of Israel simply for expression. The expansion of the list of covered boycotts in the new bill would not make it any easier to go after ‘boycott activists.'”
“In short,” Kontorovich wrote, “the proposed statute is a timely action to expand the list of prohibited foreign boycotts with which it is forbidden to comply. The legislation does nothing to restrict anti-Israel expressions or even local ‘BDS activity.’ Anyone who wishes to express their opposition to Israel through boycotts is entirely free to do so.”
Sen. Ben Cardin (D – Md.), the chief sponsor of the legislation, and Sen. Rob Portman (R – Ohio) also rejected the ACLU’s criticism of the Israel Anti-Boycott Act, writing earlier this month:
Individuals who “actively avoid purchasing goods and services” because of their own political viewpoint would not be subject to the bill. Similarly, the bill does not regulate civil society organizations who are critical of Israeli policies or prevent them from speaking in favor of BDS. The legislation does not encourage or compel persons to do business with Israel, nor does it punish individuals or companies from refusing to do business with Israel based on their own political beliefs, for “purely pragmatic reasons,” or for no reason stated at all. Any suggestion that this bill creates potential criminal or civil liability for these actions is false.
Josh Block, president and CEO of The Israel Project, noted this week in The Hill that the ACLU’s opposition to the Israel Anti-Boycott Act comes as a senior member of the organization tweeted that Israeli leaders were exploiting anti-Semitism for political purposes and that anti-Zionism is not linked to anti-Semitism—a position rejected by top Jewish leaders and diverse public figures including former British Chief Rabbi Jonathan Sacks, Anti-Defamation League CEO Jonathan Greenblatt, Pope Francis, Minority Leader Sen. Chuck Schumer, French President Emmanuel Macron, and Secretary-General of the UN António Guterres.
“It is appalling to see one of the longest-standing and most venerated civil rights organizations in our country’s history disseminating misinformation, fomenting anti-Semitism and lauding hatemongers,” Block observed.
The Israel Project publishes The Tower.
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