Why Is Congress Trying To Pass An Obviously Unconstitutional Bill That Would Criminalize Boycotts Of Israel?

from the don't-be-ridiculous dept

As we’ve noted in the past on articles discussing this topic, I recognize that people have very, very, very strong views on both Israel and the whole “BDS” movement, and (trust me) you’re not going to convince anyone about the rightness or wrongness of those views in our comments. However, even if you support the Israeli government fully, and think the BDS movement is a sham, hopefully you can still agree that an American law criminalizing supporting the BDS movement is blatantly unconstitutional.

It is true, if horrifying, that a bunch of states have passed such laws, all of which are quite clearly unconstitutional as well. Challenges to the state laws in Kansas and Arizona have already been (easily) successful. There are other legal challenges against the other laws, and they will almost certainly be tossed out as well.

The impact of these laws is absolutely ridiculous as well, even barring Houston residents from receiving hurricane relief if they didn’t sign a pledge promising not to boycott Israel. That’s so plainly a First Amendment violation, it’s amazing that so many states have followed suit. And it’s depressing that Congress is looking to do the same:

Earlier versions of the Israel Anti-Boycott Act would have made it a crime ? possibly even subject to jail time ? for American companies to participate in political boycotts aimed at Israel and its settlements in the occupied Palestinian territories when those boycotts were called for by international governmental organizations like the United Nations. The same went for boycotts targeting any country that is ?friendly to the United States? if the boycott was not sanctioned by the United States.

Last week, the ACLU saw an updated version being considered for inclusion in the spending bill (though this text is not publicly available). While Hill offices claim the First Amendment concerns have been resolved, and potential jail time has indeed been eliminated as a possible punishment, the bill actually does nothing to cure its free speech problems. Furthermore, knowingly violating the bill could result in criminal financial penalties of up to $1 million. Were this legislation to pass, federal officials would have a new weapon at their disposal to chill and suppress speech that they found objectionable or politically unpopular.

Boycotts are clearly a freedom of expression issue. The entire point of these kinds of boycotts are to express your views on something happening in the world. To say that it’s illegal to support a boycott is crazy. And it’s even crazier that the US would pass such a law banning the boycott of a foreign country. This is made even crazier by the fact that it’s quite obviously legal to call for a boycott of a state within the US. The Intercept’s recent article highlights the insanity of this situation using NY Governor Andrew Cuomo:

One of the first states to impose such repressive restrictions on free expression was New York. In 2016, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel. ?If you boycott Israel, New York State will boycott you,? Cuomo proudly tweeted, referring to a Washington Post op-ed he wrote that touted that threat in its headline.

As The Intercept reported at the time, Cuomo?s order ?requires that one of his commissioners compile ?a list of institutions and companies? that ? ?either directly or through a parent or subsidiary? ? support a boycott. That government list is then posted publicly, and the burden falls on [the accused boycotters] to prove to the state that they do not, in fact, support such a boycott.?


What made Cuomo?s censorship directive particularly stunning was that, just two months prior to issuing this decree, he ordered New York state agencies to boycott North Carolina in protest of that state?s anti-LGBT law. Two years earlier, Cuomo banned New York state employees from all non-essential travel to Indiana to boycott that state?s enactment of an anti-LGBT law.

So, according to Cuomo, you must boycott North Carolina and Indiana, but it’s a crime to boycott Israel. That’s… messed up.

Again, even if you think that the BDS movement is really anti-Semitic, you should at least be able to understand the serious First Amendment problems with any such law. And the idea that Congress might try to slip something through during the lameduck session before the new Congress starts suggests even they know how ridiculous such a law would be.

Filed Under: , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Why Is Congress Trying To Pass An Obviously Unconstitutional Bill That Would Criminalize Boycotts Of Israel?”

Subscribe: RSS Leave a comment
Scary Devil Monastery (profile) says:

Re: Re: Re: Because the Illuminati

" The reason US had better keep supporting Isreal is Biblical.
All the more reason to stop it.
The bible is bullshit."

True, pass, and true.

The US religious right is filled with extremists and doomsday cults who fully support Israel – blindly, without either knowledge of the politics or a nod to the humanitarian situation on either side of the conflict.

It boils down to the chilling concept of the world, according to doomsayers, being halfway into perdition with the End of Days approaching. And according to the book of revelations once armageddon starts, Christ will return – and the conversion of almost all the jews of Israel will be one of the mileposts in that mythology.

So really the US religious right need Israel to remain so, according to their mythology, the second coming can happen with one of the major points being that most of the jews will then become christian and those who refuse burn in hell forevermore.
A prospect which many westboro baptist church lookalike communities view with ghoulish glee.

As odious as that is a far more serious spin on this is that quite a few of these communities take things a step further – since it’s ambiguous in scripture whether armageddon will come along with christ or whether christ will be summoned by armageddon, some of these cults actively welcome the concept of armageddon itself in the hope of bringing the supposed rapture in their time.

No matter your views on Israel, pro or con, it’s pretty much given that any US supporters of Israel should be handled like a ticking bomb until you know their actual motive for the support.

Brutis says:

Re: Re: Re: Because the Illuminati

I see comments about the Bible.
Have you read what it says about the Hebrew People?
About those who bless them?
How God corrects those He loves?
About the role the Hebrew people have in the end times?
About what happens to those who do not belong to Christ?
About how God’s people will be persecuted?
About how God is long suffering?

“I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.” Thomas Jefferson


Anonymous Coward says:

Re: Re:

Israel exports few consumer products (the country’s biggest industry is military weaponry) so it’s not like anyone would ever miss anything if, for instance, Walmart decided to boycott everything from Israel.

The BDS movement could mean a lot to investments however, if institutions like universities and union pension funds, etc, decide to boycott (or at least not invest in) Israeli companies. However, other investment institutions could easily pick up any slack that results if they so chose. Keep in mind that "looking after other people’s money" is largely a Jewish owned and operated industry, and has been so for centuries before the Rothschilds’ global banking empire.

Anonymous Coward says:

Re: Re: Re:2 Re:

… and that wonderful technology only available from one particular country is ?

Making unsubstantiated claims is easy and fun – amaze your friends and family, everyone is doing it.

I do not give a crap about BDS or any other boycott, and now I am supposed to, by law, go out of my way in order to placate the inferiority complexes of a multitude of whiny miscreants?

Anonymous Coward says:

Re: Re: Re:3 Re:

… and that wonderful technology only available from one particular country is ?

This was really easy to find:

Most of these technologies are actually now widely available. This should not be a cause for surprise or poorly executed sarcasm.

Agree that BDS and this anti-BDS law are both crap.

Anonymous Coward says:

Re: Re: Re:4 Re:

Your comment does not support the claim that one can only access the internet via use of products from one particular country.

I do not care what inventions have been patented in each and every country. I know of no patent/copyright/trademark that has exclusive rights to the internet – what is this nebulous item that everyone uses and is only available from one particular country?

That One Guy (profile) says:

"You're allowed to speak, so long as it's in our favor."

The same went for boycotts targeting any country that is “friendly to the United States” if the boycott was not sanctioned by the United States.

This part really stuck out for me, as it would allow the government veto power over selling decisions of companies when it came to potential companies. ‘Don’t want to sell to a country? Well the USG says they’re our buddies, so you don’t get a choice.’

It would be absurd enough if they were criminalizing boycotts and attacking free speech within the country, but to do it for another country entirely just cranks up the insanity to ludicrous levels.

Scary Devil Monastery (profile) says:

Re: Re: Re: No boycotting Saudi Arabia then?

"Wouldn’t be that hard. US is the largest oil producing country now. We produce more than we use."

The oil is not, by now, the main reason Saudi Arabia is untouchable by the US – for ANY reason.


The saudis own a significant portion of US debt and have extensive investment in the forms of bank. Essentially if the Saudis drop all their US bonds on the market and pull out of the US economy, bad things will happen to the US economy.

They also retain a hold on US oil business since a proper price war can undercut US production and sales.

And, of course, they are still a "reliable" strategic partner in the middle east.

Combined this points to why, before 9/11, the FBI had standing orders to ignore the known religious extremists with saudi citizenship and paramilitary training who, for some reason, were all studying how to pilot large passenger planes.

Given that background you think any US politician would survive hitting the saudis too hard?

Scary Devil Monastery (profile) says:

Re: Re:

"Not all boycotts of Israel can be or should be lumped under the BDS banner."

True enough. Looking at a political landscape consisting of Netanyahu and, dear gods, Avigdor Lieberman, it’s pretty clear that criticism of Israel’s government need not be rooted in anti-semitism or purely on behalf of palestinians. Some people are just innately such offensive characters that their participation in the public process becomes an international deterrent in itself.

Nobody says:

The whole thing is silly.

I mean, never mind the fact that boycotting Israel is impossible if you want to live in the 21st century, and use the internet, most any connected device, nearly all social networks, or for that matter, any computer made within the last 30 years.

People don’t boycott Israel because they think a boycott will work. They do it to make a philosophical point. Unfortunately, it’s one that makes them hypocrites nearly 100% of the time.

It’s impossible to have any respect for BDS when they’re using Intel based computers, to post content through israeli made routers, billed by israeli made billing systems, to sites that are powered by programming languages that were developed in israel by israelis.

All so these messages can be consumed by three major operating systems, largely developed in Israel on devices that were, in many cases, invented and/or pioneered by Israelis.

If they were serious about these boycotts, they would live in caves. It’s really the only way to get away from this stuff. And yet, while it is worth making a lot of noise about, it’s not worth actually making any sacrifices over. So it couldn’t possibly be all that important to begin with.

And, if it’s not even enough for it’s proponents to take seriously, it’s probably not something that Congress should take all that seriously either.

blademan9999 (profile) says:

Re: The whole thing is silly.

Here your just flat out lying.
Intel is an American company, founded by people born in the US, and with its headquarters in California.
None of the top 5 most common programming languages were created by people born in Israel.
The operating systems were not made by Israel companies either.

Anonymous Coward says:

Re: Re: The whole thing is silly.

Nor does it make anyone hypocritical to use anything that may have a link with Israel to protest some of the government actions of Israel.

I imagine that all the actual Israelis who are against the relevant actions of Israel should… what, emigrate to a cave, and protest by yelling really loud into a megaphone?

Mike Masnick (profile) says:

Re: Re: The whole thing is silly.

Intel is an American company, founded by people born in the US, and with its headquarters in California.

I’m in agreement with your point, but one clarification: Andy Grove (one of Intel’s three co-founders) was most certainly NOT born in the US (of course, he wasn’t born in Israel either).

Nobody says:

Re: Re: The whole thing is silly.

“Intel is an American company, founded by people born in the US, and with its headquarters in California.”

Very selective argument there, buddy. Intel actually has campuses in Israel, along with Google, Facebook, and numerous others. The fact that they aren’t Israeli companies, or who the founders were is incidental and semantic. Intel hasn’t made a secret about this either. Some of the code names for processors designed by the Israeli team over the last decade have even had hebrew names. If you’re unfamiliar with this, I suggest you educate yourself on the topic.

“None of the top 5 most common programming languages were created by people born in Israel.
The operating systems were not made by Israel companies either.”

And yet, 90% of BDS sites run on WordPress, which is written in PHP, which was developed by an Israeli company. If it’s got the word Zend in it, it’s a hebrew product. Microsoft has also had programming resources in Israel on .net. So you’re a little better there, but not by much.

It’s really not my job to combat your complete lack of research on the topic.

Stephen T. Stone (profile) says:

Re: Re: Re:

I think that depends largely upon the context of a situation in which “hate speech” is used. Using a slur in a reasonable discussion of said slur? You’re probably on safe ground. Using a slur during a physical attack of someone that was driven by animus over, say, that person’s race? Yeah, your ass gon’ get a sentencing enhancement.

Pete Austin says:

Re: Re: But the reasoning for banning it does make sense.

Indeed, some principled people boycott countries on the basis of their government policies and Israel can get included along with dozens of others. If you are one of these people, then you are not an anti-Semite.

But the more usual case is for people to pick on Israel but not other countries. The most likely reason for this is racism, though of course anti-Semites won’t admit it.

Anon says:

Re: Re: Re: But the reasoning for banning it does make sense.

We pick on Israel because we expect more from civilized, first world countries than we do from those who are still non-democratic and repressive. We used to think Israel was in the former category, and while they have genuine concerns about security, their policies seem to have slid from control to repression…

(Just like our expectations with our police- we expect them to be polite and civilized despite what the criminal element and the intoxicated do toward them.)

John Roddy (profile) says:


BDS is clearly hate speech.

Really? Which court determined that? And which doctrine did they imply?

We have laws against hate speech in America.

This is news to me. Would you like to share an example or two with the class?

And no, hate speech is not covered under the first amendment.

Yes, yes it is. The government is not allowed to even try defining what counts as "offensive" speech, let alone hateful. Look up the Supreme Court case Matal v. Tam. Decided 2017, 8-0 in favor of banning the government from making those decisions.

Scary Devil Monastery (profile) says:

Re: But the reasoning for banning it does make sense.

"BDS is clearly hate speech."

Not all of it, no. A great deal of BDS is indeed hate speech. Neo-nazis, anti-semites and generic bigots are responsible for much of it and/or using it as fuel for their own toxic agenda.

However, the reason BDS has caught on is that Israel has screwed up in losing moral grounds over the settlement issue. Because like it or not irrespective of what the israeli government has intended quite a few of the settlers are people like Baruch Goldstein or Meir Kahane, all too eager to use mass murder and terror in much the same way Hamas does. The IDF – "most moral army in the world" – has proven itself…not always to fulfill that claim, exactly.

Israel, for many good reasons, has enormous problems addressing what to do when one or more of their own go wrong. Something addressed almost daily in lamentation by moderate israeli journalists in Haaretz.

And because of this it’s easy for the BDS movement to gain international traction. They can reasonably point to any massacre performed by zealous settlers (and the refusal of Israeli government to act as forcefully on israeli murderers as they do on the murderers) as a logical background.

Israelis should have realized, at the point when Ariel Sharon was assassinated by an israeli fanatic, that they are no longer, and truthfully never have been, a united people. One way or another they’ll have to realize that their own religious extremists are as much of a threat to them as any muslim terrorist with a bomb.

"We have laws against hate speech in America. And no, hate speech is not covered under the first amendment."

That’s not strictly true, either. "Hate" speech in the US is, in fact, the very definition of stated opinion.
What you can’t do is to incite violence. But that leaves the door open for a LOT of things.
The proportionate and proper cure for hate speech is that every time a bigot speaks, a liberal MUST counter.

Free speech was never meant to be a right for everyone with an opinion the majority can get behind to speak. It exists so minority dissenters can bring to the table a view not held by many others – either so the majority can reject that opinion and be warned…or so the majority can be informed that the emperor has no clothes, figuratively.

Either way freedom of speech does the most good when what is said is inconvenient, embarrassing, or outright repulsive to hear.

Coyne Tibbets (profile) says:

The loudest moneybags PAC

Why Is Congress Trying To Pass An Obviously Unconstitutional Bill That Would Criminalize Boycotts Of Israel?

Would you want to vote against it and be called "anti-Semitic"? Have the wind of their voices blow your campaign chest empty?

(Gee, wouldn’t it be nice to have a congress that represented the people instead of the loudest moneybags PAC?)

That Anonymous Coward (profile) says:

the goyim know, shut it down.gif

If you threaten to call a congresscritter the right dog whistle they’ll go all in voting for a law they admitted was unconstitutional… I mean its not like they swore and oath to up…
Well we have an equally powerful arm of the government to handle… they are busy rounding up medics & grandmas from protests???

Well surely the American people wouldn’t stand for… Oh fuck.

Lawrence D’Oliveiro says:

Re: Re: meant to imply about both BDS and apartheid?

Sanctions worked to effect regime change in South Africa (against the opposition of some powerful allies of the latter), they can do the same against Israel (which also has some powerful allies, and not coincidentally was also pretty pally with apartheid South Africa).

And the parallel runs deeper than that: the UN compiled a report that officially found that Israel met the definition of an apartheid state, but that report was suppressed under pressure from you-know-whom.

Bamboo Harvester (profile) says:

There seems to be...

…some confusion or conflation with who and what this Bill actually IS.

The Texas example is a clear 1st violation.

But the Bill itself appears to be targeted at *companies* from the text.

That’s a State Department issue – NOT a power granted to any State.

If State says “No trade with Elbonia”, it’s completely legal and there’s no Constitutional issue. If companies continue to trade with Elbonia, they find themselves subject to all kinds of sanctions.

This Bill (and the whole BDS “movement”) appear to be nothing more than grandstanding.

Don’t like a country or company? Go ahead and boycott it. There’s a pile of manufacturers I won’t buy from because I disagree with their policies. I’m not about to join or form an “official” boycott group.

bhull242 (profile) says:

Re: There seems to be...

I’d argue that that’s irrelevant. The government can prohibit companies and/or people from buying from or selling to certain countries, but it cannot force anyone to buy from or sell to certain countries. Races or religions, maybe (for companies), but not countries. That’s the key here; you can ban trade, not boycotts.

tom (profile) says:

Legicritters at all levels want to avoid being on the wrong end of “folks who buy ink by the barrel” or the modern equivalent. So being for positions that allegedly support the LBGTIA? movement is popular.
But as Charlie Wilson commented in the movie Charlie Wilson’s War, “But congressmen aren’t elected by voters,they’re elected by contributors, and mine are in, well, New York, Florida, Hollywood, because I’m one of Israel’s guys on the Hill.” Charlie was from Texas.

Once you understand these two things, the motivation behind a lot of these silly bills is easy. The critter in question can tell his/her voters “Well I tried, the silly courts killed it. Re-elect me so we can appoint better judges….”

Bamboo Harvester (profile) says:

Re: Re:

Like I said, grandstanding.

We get a tremendous amount of myopically stupid laws passed ever year at all levels that fail their first court challenge. Because the ONLY reason they were proposed in the first place was to show how much the sponsoring pol “cares”.

OK, some of them come at it from the opposite end – to show how evil anyone opposing is.

Put up a spending bill that gives trillions to Deepest, Darkest Elbonia and anyone not voting for it gets branded “racist”.

In NY, we get several laws passed every year under the name of the child or cop who was killed as a “wake up call”. The problem is that such new “named” laws tend to be for things that are ALREADY illegal, with laws and penalties that have been on the books for decades if not centuries.

“Boycotting” businesses is under State Department regs. Always has been. No Constitutional problems with that at all.

Ryunosuke (profile) says:

Mike, it’s a rather simple solution. The Pro-Israel lobby has made it, for a long time now, that if you criticize the State of Israel, you are Anti-Semitic. And they have used that to … do some shady things. Things that other people have called out other nations on.

But that’s not correct. Most people are not against the Jewish faith. What they mean would be Anti-Zionism at worst. And even then most people who are boycotting Israel, don’t want to see the end of the state, just that they stop acting like total assholes, Just like you mentioned Cuomo (and other states and municipalities), North Carolina, and Indiana.

Anonymous Coward says:

Re: Re:

I somewhat agree, the right wing in Israel and their supporters have distorted terminology here. But if Anti-Zionism means believing Israel should not exist in any form, that effectively means supporting genocide. A sentiment that in other contexts (including Israeli extremists wanting to create a single state without Palestinians in it) is deemed to be unacceptable.

Anonymous Coward says:

both sides are bad

Usually both sides are not equally to blame but here, that’s more or less the case and both sides are going too far. (Right now oppositiomn to BDS has more power but that isn’t guaranteed to always be the case and BDS can still score big wins.) Many BDS followers really want to and have demanded, for example, that universities force professors to stop collaborating with Israelis and expel Israeli students, or that local governments bar individual Israelis even green card holders from renting or working. Then too many of us who are opposed to BDS and concerned for Israel wildly overreact by trying to sanction individuals for exercising their fundamental rights in choosing to boycott and speak out in this fashion.

I guess it’s unfortunately to be expected with such a controversial issue these days.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »