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Legal Expert: Anti-Israel Boycott Act Targets Discrimination, Not Free Speech

The Anti-Israel Boycott Act currently being debated in the Senate is an anti-discrimination legislation that does not restrict free speech, in contradiction to critics’ claims, Northwestern University law professor Eugene Kontorovich explained Thursday at a briefing on Capitol Hill.

The Senate’s Anti-Israel Boycott Act, sponsored by Sen. Ben Cardin (D – Md.), expands on laws adopted in the 1970s to fight the Arab League’s boycott of Israel, including the “Ribicoff Amendment” to the Tax Reform Act of 1976. The Ribicoff Amendment “requires U.S persons to report operations in, with, or related to countries known to participate in unsanctioned boycotts.” It seeks to prevent U.S. companies from being used to advance the policies of foreign governments that undermine U.S. policy.

In order to the enforce the 1970s legislation, the U.S Department of Commerce established the Office of Anti-Boycott Compliance. Although there are stiff criminal penalties for engaging in unsanctioned boycotts at the behest of foreign countries, only violations by businesses have been prosecuted, and no individual has ever been sentenced for such violations.

The Anti-Israel Boycott Act simply extends the 1970s legislation by prohibiting American companies from abiding by unsanctioned boycotts organized by “international organizations,” not just foreign countries. The impetus for the legislation is the United Nations Human Rights Council’s unprecedented decision to create a database of companies that do business in the West Bank, a move seen as a precursor to a boycott. (Kontorovich noted that Israeli companies that do business with the UN will most likely be the first companies targeted by this boycott.)

While the original Arab League anti-Israel boycott no longer has much force (Kontrovich noted that the boycott’s office is in Damascus), the UNHRC’s boycott efforts are active and threatening to gain force.

The American Civil Liberties Union (ACLU) launched a campaign against the Senate legislation last month, claiming that it attacks free speech. However, Kontorovich explained a number of reasons why the ACLU’s criticism is misplaced. (Cardin and Sen. Rob Portman [R – Ohio] also answered the ACLU’s objections.)

The Anti-Israel boycott Act doesn’t change the existing boycott law, but merely adds a category of prohibited boycott, Kontorovich. While the existing law has been the basis of a number of prosecutions over the years, no prosecuted company ever used the Constitution as a defense.

The law is also very clear that it does not outlaw expressions of support for a boycott, but rather providing material support to an unsanctioned boycott campaign organized by foreign governments and organizations. The prohibited actions are described by the Office of Anti-Boycott Enforcement.

Kontrovich reiterated that while the Senate bill allows individuals and companies to boycott Israel privately, it prohibits them from engaging in a boycott at the behest of foreign powers.

He noted that while 22 U.S. states have already adopted anti-BDS laws, which forbid the state from contracting with entities that support discrimination based on nationality, the ACLU hasn’t challenged these laws as violations of free speech rights.

Kontrovich added that, if successful, the ACLU’s misguided objections to the bill could undermine the existing anti-boycott laws. (In an open letter attacking the new legislation, the ACLU described the original boycott legislation as being “overblown.”)

They could also undermine existing U.S. sanctions against countries such as Iran, Russia, and North Korea. If the facilitation of boycotts—a commercial activity—is protected as free speech, then their violation could also be similarly protected.

Later during the session, Kontrovich noted that the BDS campaign is premised on the conviction that Israel’s occupation of the West Bank is a uniquely evil activity that necessitates a boycott. The hypocrisy of the UNHRC’s decision to single out Israel is amplified by the fact that two of the countries that support its database—Turkey, which occupies Northern Cyprus, and Morocco, which occupies Western Sahara—suffer no consequences for their occupations.

Kontrovich has previously published a study documenting how 44 companies from around the world operate freely in occupied territory without consequence, while only Jewish companies operating in the West Bank face repercussions. “The study reveals that international businesses play a crucial role supporting occupation and settlement enterprises around the world in places such as Western Sahara, Northern Cyprus, Nagorno-Karabakh and Crimea,” Kontorovich said last month as he presented his findings before the UNHRC, but “the Council has never condemned any of this business activity.”

Kontorovich suggested a number of actions that could possibly deter the UNHRC’s efforts to boycott Israel. These included compiling a database of all companies that do business in occupied territories worldwide. This would affect companies such as the Swiss insurance giant Zurich, which just started doing business in Turkish-occupied Northern Cyprus, and which contributes to NGOs that target Israel for boycotts. However, he noted that such a measure would need to be voted on by the UNHRC.

He also considered the viability of threatening to cut off American funds to the UNHRC, but was ultimately skeptical that this would derail the group’s efforts to boycott Israel.

Kontrovich said that the best chance to head off the UNHRC’s boycott would be for Washington to withdraw from the organization, but seemed skeptical as to whether the Trump administration would do so.

[Photo: Kohelet Forum Office / YouTube ]