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Policy Summary

On March 23, 2017, Senator Benjamin L. Cardin (D-MD) introduced Senate Bill 720, which was intended to amend the Export Administration Act of 1979. The bill is popularly known as the “Israel Anti – Boycott Act” and was passed in order to “oppose restrictive trade practices or boycotts fostered or imposed by any international organization against Israel or requests to impose restrictive trade practices or boycotts by any international trade organization against Israel.” Additionally, in conjunction with Section 206 of the International Emergency Economic Powers Act, the bill provides that anyone who “knowingly violates…or attempts to violate any provision” of this bill by engaging in restrictive trade practices or boycotts against Israel would be subject to financial criminal penalties and may be “imprisoned for not more than twenty years.” Due to the controversial nature of the bill an amended version was introduced on March 3, 2018 by Senator Cardin and Senator Rob Portman (R-OH) distinguishing the bill’s effects on First Amendment rights and freedoms. LEARN MORE, LEARN MORE, LEARN MORE

Analysis

This bill has been troubled from the start and should not become United States law for a variety of reasons. First, the bill directly takes a side on a contentious foreign policy issue. It criminalizes viewpoints that are not in agreement with the Federal Government’s decision to side with the State of Israel in the Middle East conflict. An American citizen who decides to participate in a political boycott is protected for exercising their rights because of the Supreme Court case of NAACP v. Claiborne Hardware. In that case, the Supreme Court held that “boycotts and related activities to bring about political, social and economic change are political speech” and are fully protected by the First Amendment of the United States. American citizens who wish to participate in protest movements that are critical of Israeli settlement activities and companies that do business in those regions should not be dictated by the government as to which side they should support. Nor should the government criminalize their behavior for simply deciding on which side of the Middle East issue they stand. A law on the books threatening financial penalties and time in prison for participating in boycotts does not encourage the concept of free speech. What this law does is intimidate people into not taking a particular side of an issue which is no different than suppressing a person’s speech.

Finally, in a famous Supreme Court dissent, Justice Oliver Wendell Holmes declared, “the ultimate good desired is better reached by free trade in ideas.” The ability to speak out and take an unpopular stance without fear of repercussion is a bedrock principle of free speech in the United States and this bill is a direct affront to that idea. The bill is a clear attempt to suppress a citizen’s right to boycott because of their viewpoint. An American citizen who sympathizes with the plight of the Palestinian people and abhors actions taken by the Israeli government should not face jail time or significant financial penalties for giving voice to those concerns. A better course of action, as best illustrated by Justice Holmes’ “marketplace of ideas” concept, is to permit the idea to be expressed, debated alongside other viewpoints and then allow the idea (for or against the State of Israel) to stand or fall based on its merits. However, the Israel Anti – Boycott Act does nothing more than try to suppress a person’s political speech because that speech is critical of Israel. The message this bill is sending is that American citizens do not have free speech, political speech and boycott rights when it comes to Israel, unless you support them. This bill is not consistent with prior American case law and should be voted down before it diminishes the values of free speech as enshrined in the First Amendment. LEARN MORE, LEARN MORE

Engagement Resources:

American Civil Liberties Union (ACLU) – webpage with info on unconstitutionality of Israel Anti – Boycott Bill.
Defending Rights and Dissent – non – profit group protecting right to political expression.
Defending Dissent Foundation – non – profit group promoting understanding of and value of dissent in a democracy.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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