Israel Anti-Boycott Act Violates 1st Amendment:

ACLU met with push-back in Congress

Lucette Moran
Jul 27, 2017 · 6 min read

Last Monday, the ACLU wrote in opposition to the Israel Anti-Boycott Act, on the grounds that, in its current form, U.S. citizens who peacefully boycott Israel could be penalized up to $1 million and 20 years in prison. Cosponsors were shocked to learn that the bill contains such penalties; Senator Cardin and Senator Portman continue to defend bill.

* * *

Just last week, Senator Ben Cardin (D-MD) took a stance against Turkey’s detention of Amnesty International and other human rights activists. In fact, he implored the Turkish government to “reassure the international community of its commitment to protecting human rights by ending harassment of activists and enabling their work without fear of reprisal.” The sentiment was encouraging, especially as other leaders in American foreign policy continue to disappoint.

But then, Senator Cardin also wrote S. 720 The Israel Anti-Boycott Act. If enacted, this bill would flagrantly violate the First Amendment by prohibiting Americans from supporting, participating in, or requesting information about boycotts against Israel, and imposing criminal punishment on those who do any of the aforementioned acts. The American Civil Liberties Union (ACLU) reviewed the text, and released a letter last week condemning the constitutional issue within the bill. Any person — whether as an individual or as a business entity — whose “lack of business ties to Israel is politically motivated” could be criminally punished under this bill; even though, as the ACLU emphasizes, many people engage in this same behavior whether or not their motives are political. This method of measurement would therefore penalize U.S. persons solely based on their political beliefs and opinions.

The Israel Anti-Boycott Act (IABA) would amend Section 8 of the Export Administration Act of 1979, in order to prohibit “any United States person” from participating in boycotts requested by intergovernmental organizations targeting Israel and its settlements in Palestine. The bill was formulated in response to a United Nations Human Rights Council resolution last year. The U.S. has continuously supported its ally Israel through accusations of human rights abuses, using its veto power in the UN Security Council or by abstaining in General Assembly resolutions. But, the U.S. government cannot prohibit American participation in the boycott encouraged by the United Nations, because, as it stands, the EAA only prohibits the support of boycotts initiated by foreign countries, not intergovernmental organizations. The IABA would add prohibiting both types of boycotts to the law.

Under the Export Administration Act, the President was given legal authority to regulate U.S. exports on issues of national security, foreign policy, and foreign boycotts. In regards to boycotts, it states:

… the President shall issue regulations prohibiting any United States person, with respect to his activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to… support any boycott fostered or imposed by a foreign country against a country which is friendly to the United States…

The Act expired on August 20, 2001, but the President is still granted these powers due to the International Emergency Economic Powers Act, which was invoked in Executive Order 13222 by former President George W. Bush. In doing so, President Bush declared that in light of “unrestricted access of foreign parties to U.S. goods… and the existence of certain boycott practices of foreign nations,” the expiration of the EAA constituted a threat to national security. The Executive Order renewed the EAA, for one year, and has been subsequently renewed each year since by the Commander-in-Chief.

As for the maximum penalties the ACLU is citing, those are not found literally in the text of the Israel Anti-Boycott Act — but they do exist. In Section 4(c)(2), the IABA says:

… Whoever knowingly violates or conspires to or attempts to violate any provision of Section 8(a) or any regulation, order, or license issued thereunder shall be fined in accordance with section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705).

And in referring to that section, the International Emergency Economic Powers Act clearly states that anyone who violates a law issued under it would face a civil penalty of up to $250,000, or a criminal punishment of up to $1 million dollars, 20 years in prison, or both.

A few days after the ACLU publicly released the implications of the Israel Anti-Boycott Act, journalists from The Intercept approached Senator Cardin and several other representatives about the letter. Specifically, they questioned co-sponsors on the ACLU’s comments and the role of the American Israel Public Affairs Committee (AIPAC), who named the passage of the bill a top priority for its 2017 Lobbying Agenda. One by one, co-sponsors revealed that they had little to no idea what The Intercept or the ACLU were talking about. Some responses, such as from Senator Gary Peters (D-MI) and Sen. Bob Menendez (D-NJ), suggest that they might not have even read the bill.

Senator Cardin continues to insist that the ACLU has misread the act, and that the bill does not include criminal penalties. He and Senator Portman even co-penned a letter in response to the ACLU, claiming that some of the questionable conduct of the bill — quoted or linked directly from the proposed legislation in this blog, in the ACLU’s letter, and in articles published by The Intercept — simply ‘do not exist.’ Perhaps Senator Cardin and Senator Portman did not intend to infringe upon First Amendment rights in the writing of this bill; regardless, the language is there.

A small number of senators, and Rep. Joe Kennedy III (D-MA), have begun to acknowledge that the Israel Anti-Boycott Act (including an identical bill in the House) might require further revision, yet not a single member of Congress has removed their name from it since the ACLU’s letter on July 17. Rather, Sen. John Kennedy [R-LA] actually joined as a co-sponsor of the bill on July 25. This underwhelming response is unacceptable.

As his constituent, I am especially frustrated with Senator Cardin for introducing a bill without possessing full knowledge of its breadth. So, to paraphrase my senator, I say to the United States Government, let’s stop this bill in its tracks right now.

Let’s take the necessary steps to protect human rights by ending the harassment of activists and enabling them to do their work without fear of reprisal.

No matter a person’s stance on the Israeli-Palestinian conflict, no matter if the target of protests is an ally of the United States government — American citizens are provided the right to express their political beliefs through boycott by the First Amendment. And our government needs to take this issue seriously as they continue to move the Israel Anti-Boycott Act forward.


If you’re from Maryland, we need to call or email Sen. Ben Cardin’s office.

Washington, D.C. Office
509 Hart Senate Office Building
Washington, DC 20510
Tel: (202) 224–4524

Baltimore Office
100 S. Charles Street, Tower 1, Suite 1710
Baltimore, MD 21201
Tel: (410) 962–4436

Sen. Rob Portman (R-OH) is also a primary sponsor of the bill. Emailor contact him below:

Washington, D.C. Office
448 Russell Senate Office Building
Washington, DC 20510
Phone: 202–224–3353

Columbus Office
37 West Broad Street, Room 300
Columbus, OH 43215
Phone: 614–469–6774
Toll-Free: 1–800–205–6446 (OHIO)

Some significant co-sponsors include: Sen. Bill Nelson (D-FL), Sen. Marco Rubio (R-FL), Sen. Richard Blumenthal (D-CT), Sen. Robert Menendez (D-NJ), Sen. Lindsey Graham (R-SC), Sen. Joe Manchin III (D-WV), Sen. Ted Cruz (R-TX), Sen. Jerry Moran (R-KS)…

Find the full list of cosponsors (31 Republicans and 14 Democrats) here.


Originally published at When We Should Protest on July 27, 2017.

Photo by claudia gabriela marques vieira
Lucette Moran

Written by

DC Professional, MD Resident. American University, School of International Service (2016). Arabic Scholarship at SQCC, Embassy of Oman (present).

Welcome to a place where words matter. On Medium, smart voices and original ideas take center stage - with no ads in sight. Watch
Follow all the topics you care about, and we’ll deliver the best stories for you to your homepage and inbox. Explore
Get unlimited access to the best stories on Medium — and support writers while you’re at it. Just $5/month. Upgrade