Democratic Senators Rethink Bill Criminalizing Support for Israel Boycott

Democratic senators are thinking twice about the proposed Israel Anti-Boycott Act after an outcry by the American Civil Liberties Union, which considers it a “serious threat to free speech.”

While Maryland Sen. Ben Cardin, the bill’s lead author, said that the ACLU had misinterpreted the piece of legislation, he expressed his intention to “make it clearer.”

The act targets the boycott, divestment, and sanctions movement, an international effort to boycott businesses in Israel and Yehudah and Shomron in order to pressure Israel to comply with international law and stop the further construction of settlements.

The bill would threaten large fines and prison time for businesses and individuals who don’t buy from Israeli companies operating in Yehudah and Shomron, and who make statements, including social media posts, saying that they are doing so in order to boycott.

A central question at issue is whether the law’s violators would be punished by a felony conviction and up to $1 million and 20 years in prison, as the ACLU’s analysis shows. Cardin said that the legislation’s authors only intended to apply civil penalties, and that they were “willing to deal with these issues.”

Even without criminal penalties, violators could face $250,000 or more in civil fines.

The anti-boycott act is a rare bipartisan effort in 2017, with GOP Sen. Rob Portman co-sponsoring the bill. It has 31 Republican and 14 Democratic co-sponsors, and a similar House bill has 117 Republican and 63 Democratic co-sponsors.

Senate Minority Leader Chuck Schumer, Sens. Kirsten Gillibrand, Ron Wyden, Richard Blumenthal, and Maria Cantwell are among those joining the likes of Sens. Ted Cruz, Ben Sasse, and Marco Rubio to co-sponsor the bill.

Gillibrand’s office, like Cardin, said she had a different understanding of the bill than the ACLU, but she expressed a desire to change it.

Though the ACLU said it took no position for or against the boycott, it considers “using (consumers’) power in the marketplace … ” to “act collectively to express their political points of view,” to be “constitutionally protected.” They traced this back to the 1982 Supreme Court decision in NAACP v. Claiborne Hardware Co., in which the court upheld a boycott of segregated businesses in Mississippi.

Criminalization and other measures punishing criticism of Israel have alarmed free speech activists in recent years, with the Center for Constitutional Rights calling the phenomenon “the Palestine Exception” to free speech.

In 2016 New York Gov. Andrew Cuomo barred all state agencies from doing business with companies and organizations that support an Israel boycott. Meanwhile, France has arrested and fined people for wearing pro-boycott T-shirts and the United Kingdom has implemented similar measures outlawing boycotts.

“But individuals, not the government,” the ACLU’s op-ed reads, “should have the right to decide whether to support boycotts against practices they oppose.”