The Senate is scheduled to vote Monday on a bill that includes language that would encourage states to pass unconstitutional laws penalizing businesses and individuals who participate in politically motivated boycotts against Israel.
More than two dozen states have adopted such laws in the past four years. Their collective target is the boycott, divestment, and sanctions (BDS) , “a global campaign promoting various forms of boycott against Israel until it meets what the campaign describes as Israel’s obligations under international law.”
The ACLU takes no position on boycotts of Israel or of any other foreign country, but we have long defended the right to boycott. One section of the bill being voted on in Congress, the Combating BDS Act, would encourage states to enact laws that violate that fundamental right.
You don’t need to take our word for it: Federal courts in Kansas and Arizona have blocked state anti-boycott laws on constitutional grounds, and 13 of the country’s most prominent constitutional scholars — including the former deans of Yale Law School and the University of Chicago Law School and the current dean of the UC Berkeley School of Law — just filed a explaining that these laws violate the First Amendment. As these scholars recognized, “[t]his is an easy First Amendment case” because anti-BDS laws are “clearly directed at the suppression of speech with which the state disagrees.”
Boycotts have played an essential role in American politics from the country’s founding to the present day. The American revolutionaries forged a national identity by boycotting British and Loyalist goods. Abolitionists organized boycotts of domestic and international companies that participated in the slave trade and supported slavery in the United States. Antifascist protesters boycotted Japanese silk during World War II. Civil rights champions famously organized boycotts of segregated businesses. And, in the 1980s, human rights advocates organized a widespread and ultimately successful campaign to boycott apartheid South Africa.
These collective protests are constitutionally protected under the First Amendment. In NAACP v. Claiborne Hardware Co., the Supreme Court in 1982 the right of NAACP activists to hold a mass boycott of segregated businesses in Mississippi to protest racial inequality. The court held that a nonviolent, politically motivated boycott is nothing less than “expression on public issues” which “has always rested on the highest rung of the hierarchy of First Amendment values.” The same could just as easily be said about the boycotts of Israel targeted by these state laws and the Combating BDS Act.
The bill at issue here, , would not criminalize boycotts of Israel on its own, although Congress has attempted to do that as well. Instead, it would encourage states to create laws that violate the First Amendment. These state laws would require government contractors — including teachers, lawyers, speech pathologists, newspapers and journalists, and even students who want to judge high school debate tournaments — to certify that they are not participating in such boycotts. In other words, they would make people choose between their livelihood and their First Amendment rights. In cases going back to the McCarthy era — when the government required employees to swear that they were not members of the Communist Party or engaged in “subversive” advocacy — the Supreme Court has made clear that the government cannot impose such a choice on its citizens.
The First Amendment dangers posed by these anti-boycott laws are even greater because their sponsors have made it crystal clear that they are designed to silence a particular viewpoint that is critical of Israeli and U.S. policy. As the name declares, the Combating BDS Act and the state anti-boycott laws it seeks to entrench are explicitly directed at a particular political viewpoint critical of Israeli government policies as well as U.S. support for those policies. This violates the core principle of the First Amendment — that the government cannot dictate to its citizens which causes they can and can’t support.
If the government has the power to penalize or outlaw boycotts of Israel today, there is nothing that would prevent it from exercising that power to suppress civil society boycotts against other favored entities tomorrow, whether that’s Planned Parenthood, the NRA, or Saudi Arabia. The ACLU has actively opposed these state anti-boycott bills in state legislatures and in federal courts. We’ve had some early successes, including two federal court victories in Kansas and Arizona.
But the fight is far from over. States are still adopting these laws, and just last week, a federal court in concluded that boycotts are protected under the First Amendment only if they seek to vindicate legal rights in the United States. Respectfully, the court got it wrong. The court’s cramped interpretation of the right to boycott would allow the government to outlaw political boycotts of U.S. businesses or foreign governments, many of which have no connection to domestic legal disputes. Such a distinction has no basis in First Amendment law, which protects all political expression regardless of its subject matter or viewpoint. It would also be historically anomalous, given the ubiquity of boycotts on every political issue under the sun.
Fortunately, the Arkansas decision is an outlier, and hopefully it will remain so. But since we can’t always count on the federal courts to protect our rights, it’s more important than ever that lawmakers vote against moving S. 1 forward and get the message: Hands off the right to boycott.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.