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:
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.”]
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