SLUG: ST/NEWSEUM DATE: 2/19/08 CREDIT: Jonathan Ernst / FTWP LOCATION: WASHINGTON, DC. CAPTION: An exterior view of the First Amendment on the front of the Newseum in Washington, February 19, 2008. The Newseum, set to open April 11, contains a conference center, a 250,000-square-foot museum space with 15 theaters, office space for the Freedom Forum, kitchens, a restaurant, various terraces and balconies, parking and an apartment building. Freelance Photo imported to Merlin on Wed Feb 20 11:28:01 2008 (Jonathan Ernst)
Contributor, The Volokh Conspiracy

The Israel Anti-Boycott Act is a minor updating of a venerable statute that has been at the center of the U.S. consensus on Israel policy — the laws designed to counteract Arab states’ boycott of Israel by barring Americans from joining such boycotts.

Now, the American Civil Liberties Union has dropped a bomb: It says the proposed act unconstitutionally abridges free speech. Although the ACLU is only lobbying against the current bill, its argument is against the entire system of federal anti-boycott law, including the anti-boycott provisions of the 1977 Export Administration Act, a consequence that the group seems unwilling to admit (see Eugene Volokh’s post). Indeed, the ACLU’s position would make many U.S. sanctions against foreign countries (Iran, Russia, Cuba, etc.) unconstitutional.

The ACLU’s claims are as weak as they are dramatic. I should note that I have been involved with state-level “anti-BDS” (boycott, sanctions and divestment) legislation and have advised on some of the federal bills. Although well-crafted measures avoid First Amendment problems, there are ways such laws can get it wrong, and I have been open in calling out measures that go too far. (For example, the application of such laws to prevent a Roger Waters concert is quite problematic.)

Current law prohibits U.S. entities from participating in or cooperating with international boycotts organized by foreign countries. These measures, first adopted in 1977, were explicitly aimed at the Arab states’ boycott of Israel, but its language is far broader, not mentioning any particular countries.

Since then, these laws and the many detailed regulations pursuant to them, have been the basis for a large number of investigations and prosecutions of companies for boycott activity. The laws are administered by a special unit of the Commerce Department, the Office of Antiboycott Compliance.

The existing laws cover not just participation in a boycott, but also facilitating the boycott by answering questions or furnishing information, when done in furtherance of the boycott. For example, telling a Saudi company, “You know, we don’t happen to do business with the Zionist entity” would be prohibited. It is no defense for one who participates in the Arab League boycott to argue that they happen to hate Israel anyway. Nor is it a defense to argue that one loves Israel and is simply being pressured by Arab businesses. It is the conduct that matters, not the ideology.

That is why the law has been upheld against First Amendment challenges in the years after its passage and has not raised any constitutional concerns in nearly four decades since. Refusing to do business is not an inherently expressive activity, as the Supreme Court held in Rumsfeld v. FAIR. It can be motivated by many concerns. It is only the boycotter’s explanation of the action that sends a message, not the actual business conduct. Those expressions of views are protected, but they do not immunize the underlying economic conduct from regulation.

This 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.

If the anti-boycott measures are unconstitutional, as the ACLU argues, it would mean that most foreign sanctions laws are unconstitutional. If refusing to do business with a country is protected speech because it could send a message of opposition to that country’s policies, doing business would also be protected speech. Thus, anyone barred from doing business with Iran, Cuba or Sudan would be free to do so if they said it was a message of support for the revolution, or opposition to U.S. policy, or whatever.

It is little wonder, then, that opponents of the Israel Anti-Boycott Act feel the need to exaggerate what the act does. It only makes clear that the old and existing anti-boycott law applies not just to the Arab League boycott, but also to the new foreign anti-Israel boycotts, such as those being organized by the U.N. Human Rights Council.

The best example of a criticism based on exaggeration is a claim that the bill would forbid anti-Israel activists from even expressing “support” for boycotts. There is nothing in the bill to sustain such a criticism. The old law already forbids “support” for foreign state boycotts of Israel, and the many regulations enacted pursuant to the law already define “support” to be limited to “certain specified actions” that go well beyond merely “speech” support. See 15 C.F.R. § 760.1(e)(1). Those actions, enumerated in detail in 15 C.F.R. § 760.2, allow for none of the free-speech-scare scenarios conjured by the ACLU. The new bill does not change or alter the meaning of “support.” It simply clarifies the list of foreign boycotts covered by the law.

The current law’s ban on “support” of the Arab League boycott has never been used to punish opponents of Israel simply for expression. The expansion of the list of covered boycotts in the new bill would not make it any easier to go after “boycott activists.” Anti-Israel divestment campaigns unlinked to foreign boycotts clearly “support” the Arab League boycott in the sense of promoting the same views and seeking the same goals. But they have never fallen within the scope of the existing prohibition, and they would not under the new bill.

It is easy to invent absurdly broad readings of statutes that would make them unconstitutional. The real question is if the statute would ever be applied and interpreted in that way. With the current bill, one need not wonder how it would be enforced: There are decades of administrative regulations and enforcement policies under the existing law that would apply to the new one. These all confine the prohibition to commercial conduct.

Such updating of the 1977 anti-boycott measures could not be more timely. Several United Nations agencies have initiated secondary boycotts of Israel — that is, boycotting non-Israeli companies because of their connection to the Jewish state. In support of such secondary boycotts, the U.N. Human Rights Council is preparing a blacklist of Israeli-linked companies (using such a broad definition of “supporting settlements” that the blacklist could sweep in any Israeli-linked firm).

The UNHRC’s blacklist of Israeli companies is unprecedented — the organization has never made lists of private companies or entities for any purpose. Indeed, as has been shown in a recent report I authored, the Human Rights Council clearly does not regard businesses “supporting” settlements to be a human rights issue except when Israel is involved.

The blacklist is not a mere research project. It will serve as the basis for economic action against the listed firms. Indeed, the UNHRC has not been coy about its motives; a year after passing the resolution calling for the database, it passed a resolution that in effect calls for a partial boycott against Israel. (Existing federal boycott regulations make clear that a regulated boycott call need not be explicit.) It is quite likely that U.N. agencies will begin avoiding business with companies because of those companies’ business with Israel.

Given the timing of the legislative process, starting a bill now that responds to things that have begun to happen and will materialize at the end of the year is not prophylactic; it is merely timely. Moreover, given the United Nations’ extraordinary obsession relating to Israel, it is quite proper for Congress to take what measures it can to forcefully check and deter the increasingly severe manifestations of this bias.

In short, the proposed statute is a timely action to expand the list of prohibited foreign boycotts with which it is forbidden to comply. The legislation does nothing to restrict anti-Israel expressions or even local “BDS activity.” Anyone who wishes to express their opposition to Israel through boycotts is entirely free to do so. The real question is why the ACLU is now attacking the basic constitutional understandings that underpin decades of American foreign policy and civil rights regulation — but confining its new First Amendment standard to laws relating to Israel.