Anti-BDS bill in US Congress: Criminalising Free Speech

Bills introduced in the US Congress seek to criminalise support for the Boycott, Divestment, and Sanctions (BDS) movements, calling to pressure Israel to end abuses of Palestinians' human rights.

The Senate bill, Israel Anti-Boycott Act (S.720), was introduced in the US Senate by Democratic Senator from Maryland Benjamin Cardin on 23 March 2017. The bill's number of cosponsors has been rising steadily since then, reaching 46 currently; 32 Republican and 14 Democratic Senators, which constitutes close to half the Senate.

A similar bill, the Israel Anti-Boycott Act (H.R.1697) was also introduced in the US House of Representatives on the same day by Peter Roskam, Republican Representative of Illinois's 6th District. The House bill has 249 cosponsors; 185 Republicans and 64 Democrats, constituting close to 60 percent of the House.

The bills were introduced at the time of the annual conference of the powerful pro-Israel lobbying group the American Israel Public Affairs Committee (AIPAC) in March, and match one of its lobbying agenda items for 2017. The bills are even said to have been drafted with the help of AIPAC. 

Israel Anti-Boycott have collected cosponsors from across the political spectrum in the US, including right-wing and moderate Republicans as well as moderate and liberal Democrats. The support that this proposal enjoys confirms AIPAC's powerful position in Washington, where this might be the lone instance of bipartisanship in US Congress.

The support that this proposal enjoys confirms AIPAC's powerful position in Washington

Although they garner great support and popularity among Members of Congress, the bills have been heavily criticised by proponents of civil liberties for their infringement on the freedom of speech and by several groups for conflating Israel with illegal Israeli settlement in the West Bank and East Jerusalem with Israel.

The Israel Anti-Boycott Act

The Israel Anti-Boycott Act of 2017 seeks to amend previous legislation, namely the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, to include prohibitions on boycotting Israel.

The Act would essentially prohibit US citizens and entities from supporting a boycott against Israel

The Act would essentially prohibit US citizens and entities from supporting a boycott against Israel, conducted by foreign governments or international governmental organisations such as the UN and the EU. In these bills, Israel is discussed to include illegal Israeli settlements in the Occupied Palestinian Territories.

	If the bill is amended to subject violators to 'civil penalties', that still means $250,000 in fines for expressing political views [AFP]

According to the American Civil Liberties Union (ACLU), violators will be fined a maximum civil penalty of $250,000 with a maximum criminal penalty of $1 million, and 20 years imprisonment. The House and Senate bills would also expand the previous laws to include a penalty for requesting information about the boycott.

Opposition to the bills  

In the letter to Congress members, ACLU's National Political Director Faiz Shakir urges members of Congress not to cosponsor or support the Israel Anti-Boycott Act of 2017. While the ACLU clarifies that the union takes no political position on the matter, the letter warns that the bill "would impose civil criminal punishment on individuals solely because if their political beliefs about Israel and its policies".

Under this act, the lack of business relations with Israel is only fined when it is politically motivated. According to Shakir, such punishment of entities based on political views is unconstitutional as it violates the First Amendment and the right to free speech and expression. 

The proposals also violate the right to collective action, as a form of expression. As such, individuals protesting Israeli settlement policies would be subjected to severe fines under this bill.

Other organisations have also come out against the bills.

The self-identified "pro-Israel pro-peace" group, J Street, which does not endorse BDS, issued a document detailing concerns about the legislative proposals. Most specifically, J Street expressed concern about blurring the US legal distinction between Israeli settlements and Israel, and thus breaking with established US policy of 50 years and making it a federal crime to boycott settlements.

This essentially limits freedoms for academic discussion and the free exchange of ideas at academic institutions

The proposals currently under consideration in Congress would also threaten academic freedom, and used to punish faculty, students and the American universities that host them, for expressing certain points of view regarding the boycott of Israel. This essentially limits freedoms for academic discussion and the free exchange of ideas at academic institutions.  

Possible amendments?

Following the ACLU letter, the primary sponsors of the Senate bill, Benjamin Cardin and Republican Senator from Ohio Rob Portman, sent a response letter to Faiz Shakir claiming that the bill does not infringe on free speech rights or punish entities for their political views on Israel. The senators insist that the bill is based on already existing laws and is "narrowly targeted at commercial activity".

The senators insist that the bill is based on already existing laws and is 'narrowly targeted at commercial activity'

However, those seemingly minor amendments to existing laws have potential major constitutional violations. ACLU responded with an op-ed confirming that collective actions such as boycott are protected under the US constitution. "When government takes sides on a particular boycott and criminalises those who engage in a boycott, it crosses a constitutional line", David Cole and Faiz Shakir of the ACLU said, adding that the bill "does not target commercial trade; it targets free speech and political beliefs".

Legal experts have also noted that the term "United States person" includes US residents or nationals, businesses and foreign subsidiaries of a US business.

Members of Congress cosponsoring the bills have also faced questions from their constituents regarding ACLU's constitutional concerns. Some have even reported that lawmakers have rushed to sign as cosponsors of the AIPAC-drafted bills without being aware of their contents.

Following the ACLU's public opposition to the bills, lawmakers are put under pressure to consider amendments that address ACLU's concerns. Members of Congress said they are reviewing the bill and discussing possible First Amendment issues. Cardin himself expressed willingness to consider amendments, saying he only thought the bill involves civil penalties not criminal penalties.

The criminalisation of political activism against Israeli policies is taking place across the United States and Europe

However, if the bill is amended to subject violators to civil penalties, that still means $250,000 in fines for expressing political views.   

While some amendments to the House and Senate bills may occur, the issue is far from over. The US Congress has passed bills that seek to combat BDS in the past and it is likely to pass future bills in some form.

The criminalisation of political activism against Israeli policies is taking place across the United States and Europe, with arrests, restrictions on freedom of the press and collective action, and outlawing organisations that support Palestinian rights.

What form of the Israel Anti-Boycott Act bills will pass in US Congress is yet to be seen, but this will not be the last bill targeting activism in support of Palestinian rights.

Dr. Tamara Kharroub is a Senior Analyst and Assistant Executive Director at Arab Center Washington DC.

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.