Senate bill 720 seeks to criminalize speech supporting a boycott of Israel. The bill is meant to target the growing BDS movement. Boycott, Divestment, Sanctions (BDS) is a Palestinian-led movement for freedom, justice and equality. BDS upholds the simple principle that Palestinians are entitled to the same rights as the rest of humanity. Inspired by the South African anti-apartheid movement, the BDS call urges action to pressure Israel to comply with international law.
This anti-boycott bill is part of a long tradition that seeks to undermine labor, civil rights and liberation movements employing non-violent protest. I’ll explore the history of anti-boycott laws later in the diary.
If the bill is enacted, violators would be subject to criminal penalties including imprisonment for up to 20 years. Here’s the letter the ACLU sent to the Senate yesterday:
The bill seeks to expand the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 which, among other things, prohibit U.S. persons from complying with a foreign government’s request to boycott a country friendly to the U.S. The bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts. Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison. We take no position for or against the effort to boycott Israel or any foreign country, for that matter. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.
There is a House version as well. What’s deeply troubling is that many of the Senators and Representatives co-sponsoring this bill do not seem to understand its implications. The Intercept called the offices of several Democratic co-sponsors who were unaware that the bill criminalizes support for a boycott.
THE CRIMINALIZATION OF political speech and activism against Israel has become one of the gravest threats to free speech in the west. In France, activists have been arrested and prosecuted for wearing t-shirts advocating a boycott of Israel. The U.K. has enacted a series of measures designed to outlaw such activism. In the U.S., governors compete with one another over who can implement the most extreme regulations to bar businesses from participating in any boycotts aimed even at Israeli settlements, which the world regards as illegal. On U.S. campuses, punishment of pro-Palestinian students for expressing criticisms of Israel is so commonplace that the Center for Constitutional Rights refers to it as “the Palestine Exception” to free speech.
But now, a group of 43 Senators – 29 Republicans and 14 Democrats – want to implement a law that would make it a felony for Americans to support the international boycott against Israel, which was launched in protest of that country’s decades-old occupation of Palestine. The two primary sponsors of the bill are Democrat Ben Cardin of Maryland and Republican Rob Portman of Ohio. Perhaps the most shocking aspect is the punishment: anyone guilty of violating its prohibitions will face a minimum civil penalty of $250,000, and a maximum criminal penalty of $1 million and 20 years in prison.
The 14 Democrats who want to make it a felony for Americans to support a boycott of Israel are:
- Ben Cardin (MD)
- Bill Nelson (FL)
- Robert Menendez (NJ)
- Richard Blumenthal (CT)
- Gary Peters (MI)
- Maria Cantwell (WA)
- Chuck Schumer (NY)
- Maria Cantwell (NH)
- Kirsten Gillibrand (NY)
- Joe Donnelly (IN)
- Joe Manchin (WV)
- Ron Wyden (OR)
- Chris Coons (DE)
- Michael Bennett (CO)
The bill is part of a concerted campaign by anti-Palestinian groups to criminalize non-violent protest of Israel’s oppressive policies and violation of Palestinian’s human rights. Concerted pressure by left-wing activists is a concern for the Israeli government which has been accustomed to unquestioned support from most European and US administrations. In 2015, the EU instituted labelling requirements which direct Israeli companies to clearly label agricultural products made in the Occupied Territories. It is illegal for occupying powers to exploit the natural resources (including land) in any way. The US went almost as far, by issuing a statement that effectively warned Israeli companies from labelling goods made in the West Bank or East Jerusalem as “Made in Israel”.
The push-back from anti-Palestinian groups has been severe. Those who support, or even fail to oppose, a boycott of Israel modeled on the South African example, have been viciously attacked. Pamela Geller’s outfit called various left-wing Jewish organizations “judenrat” and “kapos” last year when they opposed anti-BDS laws at the state level.
AIPAC has been pushing several versions of anti-BDS legislation through state legislatures for years. They’ve been successful to varying degrees, in Indiana, Tennessee, South Carolina and Illinois. The bill seeks to criminalize speech supporting BDS in the US, in the same way it is in Israel. The Israeli Supreme Court has called the BDS movement “political terrorism” and allowed publishers to be sued for printing statements supporting BDS. The Senate and House bills seek to do something similar here, by criminalizing non-violent protest and political speech. Similar attempts have had some success in Europe. A French court fined activists protesting at a grocery store $14,500 for wearing t-shirts that supported BDS. That is the sort of reality American protestors might face as well.
A note on the history of anti-boycott laws and how they have been used to suppress dissent, unions and liberation movements is below.
The Forward discussed the origins of this bill in their brief note:
The Israel Anti-Boycott Act, introduced in March by Sens. Ben Cardin, D-Md., and Rob Portman, R-Ohio, would expand 1970s-era laws that bar complying with boycotts of Israel sponsored by governments — laws inspired at the time by the Arab League boycott of Israel — to include boycotts backed by international organizations. Those adhering to boycotts would be the subject of fines.
While the measure is aimed at the Boycott, Divestment and Sanctions movement, it also targets efforts by the United Nations and the European Union to distinguish products manufactured in Israel from those manufactured in West Bank settlements.
It’s worth noting at this point, the long history on anti-boycott laws, which were first employed at the end of the 19th century and the start of the 20th as a tool against organized labor. In 1901, Deitrich Loewe opened a non-union factory in Danbury, CT. The United Hatters of America (UHU) led a strike and worked with the American Federation of Labor (AFL) to promote a national boycott by consumers, wholesalers and retailers. Loewe filed suit contending the boycott was a violation of the Sherman Antitrust Act. The case was Loewe v Lawlor, and Loewe won in the Supreme Court. For years, the courts continued to issue injunctions against boycotts and strikes, and supporting employers who forced employees to sign non-unionization contracts (yellow dog contracts).
These practices continued till the 1932 Norris-LaGuardia Act, which, among other things exempted labor unions from antitrust laws. The US Supreme Court applied Norris-LaGuardia in the New Negro Alliance v. Sanitary Grocery Co. case in 1938, supporting the right of workers to organize a boycott. In this case it was black workers protesting discriminatory hiring practices. Since then, there’s been a long history of labor organized boycotts in the US, including the salad bowl strike organized by Cesar Chavez and the United Farm Workers.
Boycotts have a long history in liberation struggles and anti-colonial movements. In particular, Gandhi (building on the thoughts of an earlier generation of leaders including Naoroji) led a successful boycott of British goods during the Indian independence struggle. The Indian Swadeshi movement lasted for almost half a century, and intentionally targeted the economic underpinnings of colonial exploitation.
A more recent example is the South African boycott movement, which applied sustained pressure on the apartheid-era government to end the practice of apartheid. Israel was a close ally of the South-African government. The Israeli government has such a concerted focus on BDS because it’s aware of how the South African apartheid regime was forced to end its discriminatory practices under pressure from an international boycott.
Anti-boycott laws were employed in the US against Dr. Martin Luther King Jr. and other leaders of the Montgomery Improvement Association in 1955 in response to the Montgomery Bus Boycott.
White officials in Alabama conducted two concerted efforts to defeat Martin Luther King, Jr., and the civil rights movement legally, by indicting King for violating an anti-boycotting law during the Montgomery bus boycott and for income tax fraud, in 1956 and 1960, respectively.
On 21 February 1956 King was indicted by the Montgomery County Grand Jury for his boycott of the Montgomery City Lines, Inc. According to the State of Alabama, King and 89 others violated a 1921 statute that outlawed boycotts against businesses. — kingencyclopedia.stanford.edu/…
Taylor Branch’s “Parting the Waters” discussed in extensive detail how Alabama attempted to use this law to shut down the activities of the MIA and the SCLC.
Attempts by states to criminalize civil rights related boycotts continued up until the 1980s:
The case, N.A.A.C.P. v. Claiborne Hardware, arose out of a 16-year effort by black civil rights leaders to achieve some modicum of racial equality in Claiborne County in Mississippi. In 1966, black citizens of the county, under the leadership of Charles Evers, field secretary of the National Association for the Advancement of Colored People, presented white elected officials with a petition for constitutional equality. Included were such fundamental demands as desegregation of public schools, selection of blacks for jury duty, integration of the public toilets in the county courthouse, and insistence that ”Negroes are not to be addressed by terms as ‘boy,’ ‘girl,’ ‘shine,’ ‘uncle,’ or any other offensive term, but as ‘Mr.,’ ‘Mrs.,’ or ‘Miss,’ as is the case with other citizens.”
These demands were ignored, and, in response the local N.A.A.C.P. chapter organized a boycott of white merchants in the area. The boycott proved singularly effective, so effective that Mississippi officials reacted with a legal attack.
After years of litigation, a Mississippi trial court found that the boycotters had unlawfully and maliciously interfered with the white merchants’ businesses, engaged in a secondary boycott in violation of state law and violated the Mississippi antitrust statute. Damages, penalties and attorney’s fees of $1.25 million plus interest were assessed against the N.A.A.C.P. and 130 individuals. The Mississippi Supreme Court reduced the damages and rejected some of the trial court’s legal theories – including a ruling that retroactively applied a state statute enacted two years after the boycott had begun – but it nonetheless found the boycott to be a violation of state law.
In July 1982, the Supreme Court ruled unanimously for the NAACP, and said that calls for violence by some could not be used to criminalize non-violent protest by others. In Justice Stevens’ decision he wrote:
”One of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.”
“[Legal] liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.”
‘A massive and prolonged effort to change the social and political and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts.’
PS. I am deeply indebted to a fellow Kossack who, years ago, shared their substantive knowledge of the history of anti-boycott laws with me.