Over the weekend, two senators introduced changes to the Israel Anti-Boycott Act, which would criminalize participation in certain political boycotts targeting Israel. The changes attempt to address the civil liberties concerns raised by the ACLU and other groups.
Unfortunately, the revised bill still violates the First Amendment. It does so by unconstitutionally penalizing Americans who participate in political boycotts of companies doing business in Israel and its settlements in the occupied Palestinian territories, if those boycotts were called for by international governmental organizations like the United Nations.
This is impermissible. Political boycotts are fully protected by the First Amendment. The Supreme Court made that clear when it recognized, in a landmark 1982 decision called , that the Constitution protected a 1960s boycott of white-owned businesses in Mississippi. If the Israel Anti-Boycott Act were to pass and take effect, we would strongly consider challenging it in court.
The Israel Anti-Boycott Act seeks to amend a 1970s law known as the . That law was passed in response to the Arab League’s boycott of Israel, which required U.S. businesses to boycott Israel as a condition of doing business with Arab League countries. To prevent foreign countries from bullying U.S. businesses into these compulsory boycotts, the EAA prohibited U.S. companies from entering into agreements with foreign governments to boycott countries friendly to the United States. Whereas the EAA was meant to protect U.S. companies from these compulsory boycotts, the Israel Anti-Boycott Act seeks to dictate the political activities Americans can and can’t engage in. It does so by imposing civil and criminal penalties on American organizations that participate in political boycotts called for by international organizations.
The Israel Anti-Boycott Act, amended by Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio), does contain several significant improvements from the original draft. For example, the bill now makes clear that Americans cannot be imprisoned for their boycott participation. It also provides that speech critical of Israel cannot be used to open an investigation against an individual or as evidence that the person violated the law. These changes alleviate some of the gravest dangers posed by the bill.
But this latest version would still allow people who boycott to be slapped with criminal financial penalties. It suffers from the same fundamental flaw as the original draft by criminalizing participation in constitutionally protected boycotts. In fact, the bill’s sponsors openly admit that it was designed for this purpose. In the press release accompanying its announcement, Sen. Mike Crapo (R-Idaho) the bill as an attempt to “combat Boycott, Divestment, and Sanctions (BDS) efforts targeting Israel.” Sen. Sherrod Brown (D-Ohio) also characterized the bill as “anti-BDS legislation.” Although the bill states that “[n]othing in this Act . . . shall be construed to diminish or infringe upon any right protected under the First Amendment,” these words rings hollow in light of the bill’s obvious purpose.
The Israel Anti-Boycott Act cannot be viewed in isolation. It is part of a sustained legislative campaign in the state and federal governments to suppress boycotts of Israel. Just a few weeks ago, a federal court in Kansas agreed with the ACLU’s First Amendment challenge to a law requiring state contractors to certify that they are not participating in boycotts of Israel. The court recognized that the Kansas state government could not constitutionally suppress our client’s boycott to silence one side in the public debate over the Israeli-Palestinian conflict. In halting enforcement of the law, the court held that our client’s boycott of Israel:
“is protected for the same reason as the boycotters’ conduct in [NAACP v. Claiborne Hardware] was protected. . . . Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced by both Palestinian and Israeli citizens.”
From the campaign to from apartheid South Africa to the recent against the National Rifle Association, boycotts have always been a key feature of American politics. If state and federal governments could outlaw boycotts they don’t like, all sorts of social movements would suffer. Whatever their views are on Israel and Palestine, members of Congress should recognize that the Israel Anti-Boycott Act threatens fundamental First Amendment values. We urge them to oppose it.
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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.