The Phony “Free Speech” Attack on the Israel Anti-Boycott Act

It is hypocritical for progressives—-who universally favor governmental restrictions on business—-to oppose them just because the beneficiary is Israel.

A newly proposed federal law—-the Israel Anti-Boycott Act—-adds to a 1979 federal law that prohibits US companies from participating in anti-Israel boycotts. This new law has generated considerable controversy.

In order to understand the proposed anti-boycott law, it is necessary to know about the history of boycotts against Israel.

Arab League Boycott of Israel

As the Jewish population in Palestine grew in the 1930s and 1940s, Arab leaders grew increasingly alarmed at the prospect of a Jewish state in their midst. They did everything in their power to stop the physical and economic growth of the Jewish community. Thus, in 1945 the Arab League announced a commercial boycott of the Jewish community of Palestine.

In 1948, five Arab countries invaded the brand new state of Israel in an unsuccessful attempt to annihilate it. Unable to destroy Israel through military means, Arab countries hoped to weaken and eventually destroy it by means of the Arab League Boycott. But over time this boycott was largely abandoned by the Arab countries.

US Anti-Boycott Legislation to Counter Arab and UN Boycotts

The most important tool used by the US to weaken the Arab League Boycott of Israel has been the US Export Administration Act of 1979.1 This federal legislation, among other things, discouraged or prohibited US businesses from participating or supporting the Arab League Boycott. This was intended to support the US’ greatest ally in the Middle East: Israel.

The US Congress is currently considering new legislation—-the Israel Anti-Boycott Act—- that would extend the anti-boycott provisions of the earlier Export Administration Act to non-governmental organizations, specifically the United Nations. The introduction of this Act was prompted by actions taken in 2016 by the United Nations Human Rights Council (UNHRC) to initiate a new commercial boycott of Israel.

In order to implement this boycott, UNHRC has been preparing a blacklist of Israeli and Israeli-linked companies. This is unprecedented. The UNHRC has never before compiled a list of private companies for any reason. According to the UNHRC, the blacklist is directed at Israeli-linked companies that support settlements in the West Bank. In reality, their definition of offending companies is so broad that it is likely to prohibit commerce with any or all Israeli-linked companies.

A year after passing a resolution calling for the database of settlement-linked Israeli companies, the UNHRC passed another resolution that calls upon UN member states to regulate “trade with settlements” thereby encouraging a partial boycott of Israel.

Does the Israel Anti-Boycott Act Violate Free Speech Rights?

As Congress considers the Israel Anti-Boycott Act, a chorus of organizations and advocates on the left has cried foul. They claim that the act is a violation of constitutionally protected free speech. In a detailed legal analysis, constitutional and international law expert Eugene Kontorovich defends the constitutionality of the Act.

Kontorovich notes that the Anti-Boycott Act merely extends the provisions of the Export Administration Act. The latter Act has withstood many First Amendment challenges. It has not raised any constitutional concerns in the four decades since its passage.

Kontorovich argues,

[The] distinction between the expression and the commercial conduct is crucial to the constitutionality of civil rights acts. In the United States, hate speech is constitutionally protected. However, if a KKK member places his constitutionally protected expression of racial hatred within the context of a commercial transaction — for example, by publishing a “For Sale” notice that says that he will not sell his house to Jews or African Americans — it loses its constitutional protection. The Fair Housing Act forbids publishing such discriminatory notices, and few doubt the constitutionality of the Fair Housing Act.2

One of the organizations opposed to the Israel Anti-Boycott Act on free speech grounds is the American Civil Liberties Union (ACLU). The ACLU’s argument appears to be that  refusing to do business with a country is a way of speaking out against that country’s policies. But that interpretation is an absurd stretching of the definition of free speech. According to Kontorovich, if this interpretation were to be accepted, it would mean that the US could never impose business sanctions on a foreign country, even countries like Iran, that threaten the US and its allies.

Opponents of the Israel Anti-Boycott Act also claim that it would make it illegal for individuals to voice support for boycotts against Israel or to participate in BDS activities. This is a fake free speech argument.

Kontorovich correctly points out that the Export Administration Act has never been applied in this fashion and that courts have never limited the free speech activities of boycott supporters. The courts have ruled that the provisions of the Act apply solely to commercial conduct. The same would apply to the proposed Israel Anti-Boycott bill, which is a minor modification to the earlier legislation.

In my view, there is nothing unusual about laws, like the proposed anti-boycott law, that restrict the commercial activities of business. Every business today is governed by a web of restrictions and regulations that encompass a wide range of concerns: zoning, hiring and promotion, environmental impact, competitiveness, and many more.

It is hypocritical for progressives—-who universally favor governmental restrictions on business—-to oppose them just because the beneficiary is Israel.

Defending Free Speech

Arab countries have used anti-Israel economic, diplomatic and cultural policies as tools to achieve what they have failed to achieve by force of arms: the destruction of the state of Israel. Many powerful groups in the Arab world openly and regularly proclaim their intention to achieve this goal. Today these groups have a new ally toward this end:  western political parties and non-governmental organizations hostile to Israel.

The efforts of left-wing groups and politicians to deny the US Congress the ability to support Israel, America’s steadfast ally in the Middle East, are disingenuous. These groups and individuals enthusiastically support boycotts against Israel but rail against those who would boycott the boycotters.

Arguments against the Israel Anti-Boycott Act are based on spurious legal reasoning that falsely equates commercial activity with free speech. Anti-Israel progressives ignore the obvious: that the Israel Anti-Boycott Act will not infringe upon the right of anyone to say whatever he wishes to say about Israel. Supporting anti-Israel boycotts plays into the hands of some of the most brutal and totalitarian regimes in the world, the very regimes that ruthlessly suppress the liberal ideals that progressives say they hold dear.

Opponents of the Israel Anti-Boycott Act pose as defenders of free speech. But their efforts, if successful, would weaken the only country in the Middle East where free speech is protected.

Footnotes

  1. Export Administration Act of 1979. Wikipedia. Retrieved December 12, 2018 from:

https://en.wikipedia.org/wiki/Export_Administration_Act_of_1979

       The Export Administration Act (EAA) of 1979 (P.L. 96-72) provided legal authority to the President to control U.S. exports for reasons of national security, foreign policy, and/or short supply…….

       Regulation forbidding Anti-Israel boycotts. The U.S. Department of Commerce‘s Bureau of Industry and Security is charged with enforcing and administering the anti-boycott laws under the Export Administration Act.

Those laws discourage, and in some circumstances, prohibit U.S. companies from furthering or supporting the boycott of Israel sponsored by the Arab League, and certain Muslim countries, including complying with certain requests for information designed to verify compliance with the boycott.

 

  1. Kontorovich, E. Israel Anti-Boycott Bill Does Not Violate Free Speech. Washington Post. July 27, 2017. Retrieved December 9, 2018 from: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/27/israel-anti-boycott-bill-does-not-violate-free-speech/?utm_term=.270e32f050de

 

 

About the Author
The author is a life-long Zionist and advocate for Israel. He believes that a strong Jewish state is invaluable, not only to Jews, but to the world-wide cause of democracy and human rights. Dr. Berger earned a PhD in Social Welfare from the University of Wisconsin-Madison and has twenty-seven years of teaching experience. He has authored and co-authored three books as well as over 45 professional journal articles and book chapters. His parents were Holocaust survivors. Dr. Berger also blogs at: https://realbulletpoints.wordpress.com/
Related Topics
Related Posts
Comments