http://fpif.org/nearly-50-senators-want-to-make-it-a-felony-to-boycott-israel/
In 1966, the NAACP of Claiborne County,
Mississippi launched a boycott of several white-owned local businesses on the
basis of racial discrimination.
It was so impactful that the local hardware
store filed a lawsuit against the individuals and organizations who coordinated
the boycott. After 10 long years of litigation, the Mississippi Supreme Court
ruled in favor of the white businesses and ordered the NAACP to pay for all
their lost earnings.
Years later, in 1982, the U.S.
Supreme Court ruled 8-0 to overturn the lower court’s decision on the
basis that nonviolent boycotts are a form of free speech protected by the First
Amendment. In announcing the unanimous decision, Justice John Paul
Stevens said,
“One of the foundations of our society is the right of individuals to combine
with other persons in pursuit of a common goal by lawful means.”
That should have been the end of it. But now,
Americans’ right to boycott is under attack once again — thanks to a vicious
anti-boycott bill making its way through the Senate.
In particular, it appears to target the
Boycott, Divestment, and Sanctions (BDS) movement. BDS is an international
movement calling on individuals, institutions, and governments to boycott
Israeli products until it ends its occupation of Palestinian lands.
The boycott is explicitly nonviolent and is
supported by activists, celebrities, faith-based groups, and political and
social justice organizations around the world.
The proposed Israel Anti-Boycott Act would make
it a felony for
Americans to support BDS, with a penalty of up to $1 million and 20 years in
prison.
Unfortunately, the bill enjoys bipartisan
support: 32
Republicans and 15 Democrats are currently signed on as cosponsors,
including party leaders like Chuck Schumer (D-NY), Claire McCaskill (D-MO), and
Ted Cruz (R-TX). In response, the ACLU
issued a letter urging members of the Senate to oppose the bill based
on its “direct violation of the First Amendment.” (Following the
publication of the ACLU’s letter, several members of Congress have agreed to
review their sponsorship, but so far none have removed their names.)
The Israel Anti-Boycott Act would function by
amending an earlier law from 1979, which prohibits American citizens and
corporations from complying with boycotts called for by foreign nations against
U.S. allies. The new law would include boycotts “fostered and imposed by
international governmental organizations” like the United Nations. In this,
it’s a direct response to the 2016
UN Human Rights Council resolution discouraging businesses from
operating in Israeli settlements in the West Bank and East Jerusalem.
In one way, it’s genius. By claiming a
connection between BDS and the UN — a connection the UN has never embraced, in
that resolution or any other — the bill attempts to work around NAACP v. Claiborne Hardware Co.
But the BDS movement is not a product of the UN
— it has nothing to do with it at all, except to the degree that it’s based on
international law. The BDS call to
action was issued in 2005 by a coalition of 170 Palestinian political
parties, professional associations, refugee networks, and civil society
organizations. BDS is a tactic, not an organization, and the boycott has always
been grassroots and decentralized, meaning anyone anywhere can partake in BDS
by making the simple decision to do so.
Whether the congressional supporters of the
Israel Anti-Boycott Act misunderstand or are intentionally misrepresenting BDS
is uncertain, but the Supreme Court decision of 1982 is clear as crystal:
Americans’ right to peaceful boycott with the aim to “bring about political,
social, and economic change” is protected by the First Amendment. That means
this bill is more than egregiously immoral — it’s unconstitutional.
The bill’s language also lumps Israel’s
settlements in with the country’s internationally recognized borders.
Significantly, it declares the UN Human Rights
Council’s 2016 position on Israeli settlements an “action to boycott, divest
from, or sanction Israel.” Yet that resolution took no position on the
boycotting of goods produced in Israel proper — it only took aim at
Israeli settlements in
Palestinian territory, which are illegal under international law.
U.S. policy since
1979 has recognized that the Israeli settlements are “inconsistent
with international law.” By contrast, the new bill effectively erases any
distinction between Israel and its settlements in the West Bank. If it’s
passed, anyone who chooses not to do business with or buy items manufactured in
illegal Israeli settlements can be convicted, fined, and even jailed.
Efforts to curb this kind of activism are often
touted as efforts to combat anti-Semitism. Yet polls show that only
17 percent of American Jews support the continued construction of
settlements. The bill is so controversial, in fact, that the liberal pro-Israel
organization J Street, which has long opposed BDS, recently
announced its opposition to the proposed law on the basis that it
“divides [opponents of the global BDS movement] by making the issue about the
settlements.”
It’s difficult to know exactly how broadly the
law, if passed, will be enforced. Its intentionally vague language leaves a lot
to the imagination, and perhaps that’s exactly what’s intended. The real goal
may be to frighten people from engaging in the completely legal act of living
out their values in their economic choices.
But we can’t let fear prevent us from
exercising our rights and fulfilling our moral obligations. The silver lining
is that every effort to quell the BDS movement has served to strengthen it.
Each attempt at criminalizing the boycott, whether on the state or federal
level, has been met with a spike in Google searches for BDS and related terms.
And with the uproar caused by this new bill,
the right-wing pro-Israel lobby just may prove to be the BDS movement’s best
ally.
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