As Congress Mulls Bill to Outlaw Israel Boycotts, the Real Experts Weigh In

As reported Wednesday in numerous outlets, a group of 43 Democratic and Republican U.S. senators have teamed up to introduce a bill, drafted with the help of the American Israel Public Affairs Committee, that would make any support for boycotts of Israel over its occupation of the West Bank a felony, subject to fines of up to $1 million and twenty years in prison. (A parallel House bill is now up to 237 sponsors, already enough for passage.) The bill’s bipartisan backing — both Chuck Schumer and Kirsten Gillibrand are on board — has already led the ACLU to issue a letter warning the Senate that the legislation would unconstitutionally “impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies.”

What, exactly, the bill would outlaw is in dispute: Senators Ben Cardin and Rob Portman, the bill’s primary sponsors, wrote back to the ACLU today that the bill is “narrowly targeted at commercial activity,” not personal participation in boycotts; Gillibrand seems to agree, with her spokesperson telling the Intercept that “we have a different read of the specific bill language” and offering to sit down with the ACLU to discuss it. (Schumer’s office, meanwhile, provided a link to a floor speech in which the senator called Israel boycotts “the reinvented form of anti-Semitism.”)

ACLU staff attorney Brian Hauss maintains that the Israel Anti-Boycott Act would “prohibit people in the United States from supporting boycotts targeting Israel,” and as such violates the First Amendment. (He notes that Nassau County’s recently adopted law banning the county from doing business with Israel boycotters could be used to prohibit Roger Waters from being booked to play the Nassau Coliseum because of his political views.)

“The language refers to ‘any United States person,’ not just institutions,” Hauss tells the Voice in an email. “That applies to any individual who buys almost any consumer goods. So if it comes to the authorities’ attention that someone has avoided purchasing Sabra hummus online out of political motivations and a desire to support an international boycott, they could be held liable under the bill.”

Center for Constitutional Rights deputy legal director Maria LaHood concurs: “This is an amendment to another law” that defined the term United States person as “any United States resident or national,” U.S. business, or foreign subsidiary of a U.S. business, she tells the Voice. “I don’t know what their argument is that it does not apply to individuals.”

To take the temperature of New Yorkers on this bill, we headed to the city’s center for debates over Boycott, Divestment, Sanctions (or BDS, as the movement is known) and free speech: the Park Slope Food Coop, where members have voted down joining the boycott en masse, but the tumult continues, most recently with four members having their shopping rights suspended for a year after they interrupted a presentation about Israeli factories on the West Bank. The results of our inquiry were…instructive? Let’s go with instructive:

• Bill Lawrence, co-op member since 2008: “Chuck Schumer is going to vote for any bill that helps Israel — that’s his shtick. Me personally, I don’t think this bill’s constitutional. If it is what it seems to be, you can’t make it criminal to boycott anything.”
• Jeff Mandelbaum, co-op member since 1996: “Any law that outlaws boycotts is ridiculous.”
• Andy, co-op member since 2003, declined to give last name: “If the ACLU is against it, I’ll probably be against it, too.”
• Sarah Unrue, co-op member since 2012: “You shouldn’t censor people and their right to have an opinion.”
• Baila Olidort, co-op member since 2012: “My initial response is that so much of the BDS movement is really dubious, because I feel like it’s directed against Israel when there are so many countries whose violations are just off the charts. Picking on Israel the way the BDS proponents do really smacks of, I have to say this, anti-Semitism. I feel like the ACLU’s statement is misleading.”
• Dan Becker, co-op member since 2013: “I was born in Israel, and I’m so glad to find out that the ACLU’s getting involved in this, and I’d like to find out more.”
• Josh Lerner, co-op member since 2003: “I don’t think we should be regulating boycotts.”
• Vicki Hikem, co-op member since 2008: “I don’t support the bill; I think we should have the right to boycott governments who abuse human rights.”

There you have it: Seven out of eight Park Slope Food Coop members agree that the Israel Anti-Boycott Act is addlepated. If Schumer and Gillibrand ever want to be able to buy bulk wheatgrass in peace, they’d do well to listen.

[Update 7/25: After this Daily Beast article asserted that the Israel Anti-Boycott Act would be toothless because it only applies to “international governmental organizations” and BDS was launched by Palestinian nongovernmental organizations, we reached out to the ACLU and CCR lawyers for clarification. LaHood replied that while she would certainly argue the bill doesn’t apply to BDS, “that doesn’t mean it’s how it would be interpreted.” And Hauss responded that since the bill states that the U.N. Human Rights Council’s March 24, 2016, resolution calling for a list to be compiled of companies operating in Palestinian territories constitutes an action to “boycott, divest from, or sanction Israel,” the effect would clearly be to chill public support for BDS: “If you’re not sure what a criminal law means, the safest answer is always self-censorship. That is a First Amendment harm in its own right, and one we should be particularly vigilant in combating.”]