Cecily Zamora
Anti-boycott laws in the United States are a set of regulations that prohibit US companies from complying with other countries' boycotts that the US does not support. These laws are enforced by the Office of Antiboycott Compliance (OAC) within the Department of Commerce's Bureau of Industry and Security (BIS). While these laws are intended to prevent US businesses from participating directly or indirectly in boycotts, they have faced legal challenges on the basis of violating freedom of expression and have been deemed presumptively unconstitutional by some courts. The question of the constitutionality of anti-boycott laws in the US remains a subject of debate and legal interpretation.
| Characteristics | Values |
|---|---|
| Purpose | To prevent US companies from complying with aspects of other countries' boycotts that the US does not support |
| Implementation | Through the anti-boycott provisions of the Export Administration Act of 1979 (EAA) and a 1977 amendment to the Tax Reform Act of 1976 |
| Enforcement | The Bureau of Industry and Security's Office of Antiboycott Compliance (OAC) within BIS |
| Prohibitions | US companies are prohibited from taking certain actions in furtherance or support of a boycott maintained by a foreign country against a country friendly to the US |
| Reporting Requirements | US companies must report their receipt of certain boycott-related requests for information and verify compliance with an unsanctioned foreign boycott |
| Exceptions | A major exception is that exporters can refuse to do business with a boycotted country for non-boycott reasons, such as technical incompatibility or poor products/services |
| Penalties | Criminal penalties for "knowing" violations include fines of up to $50,000 or five times the value of exports, and/or imprisonment of up to five years; administrative penalties include exclusion from practice |
| Constitutionality | Critics argue that anti-boycott laws violate the "unconstitutional conditions" doctrine, which holds that the government cannot infringe on constitutionally protected interests, such as freedom of speech and expression |
| State-Level Variations | Some states have adopted laws or policies that explicitly target companies boycotting Israel or Israeli settlements, while others have faced legal challenges and had to scale back their laws |
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What You'll Learn
Anti-BDS laws and free speech
Anti-BDS laws (Boycott, Divestment, and Sanctions) are a set of regulations that prohibit US companies from complying with other countries' boycotts that the US does not support. The US has been Israel's closest ally on the international stage since the 1960s, and anti-BDS laws have been implemented to prevent US businesses from participating directly or indirectly in the Arab League's boycott of Israel. Most anti-BDS laws take one of two forms: contract-focused laws requiring government contractors to promise that they are not boycotting Israel, and investment-focused laws mandating public investment funds to avoid entities boycotting Israel.
There is significant debate surrounding the constitutionality of anti-BDS laws, with critics arguing that they violate the First Amendment's guarantee of free speech by punishing political views. In May 2021, documentary filmmaker Abby Martin successfully challenged an anti-BDS law in Georgia as unconstitutional, with the United States District Court for the Northern District of Georgia ruling that Georgia Southern University had violated her First Amendment rights by requiring her to sign a pledge not to boycott Israel to be eligible for a speaking arrangement.
The Texan District Court also dismissed several cases cited by proponents of anti-BDS laws, holding that "content-based laws...are presumptively unconstitutional" and that "viewpoint-based regulations impermissibly 'license one side of a debate' and 'create the possibility that the [government] is seeking to handicap the expression of particular ideas".
However, proponents of anti-BDS laws claim that BDS is a form of antisemitism, and thus such laws legislate against hate speech. As of 2020, the question of whether American anti-BDS laws are constitutional has not been settled in courts, and there has been no federal law adopted.
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Anti-boycott laws and the Export Administration Act
The United States has a policy of opposing restrictive trade practices or boycotts imposed by foreign countries against nations that are friendly to the U.S. To enforce this policy, the U.S. adopted anti-boycott laws, which are a set of regulations that prohibit U.S. companies from complying with aspects of other countries' boycotts that the U.S. does not support. These laws are enforced by the Bureau of Industry and Security (BIS) and, more specifically, by the Office of Antiboycott Compliance (OAC).
The anti-boycott laws were first introduced through the 1977 amendments to the Export Administration Act of 1969, which targeted U.S. persons' participation in unsanctioned foreign boycotts. These amendments formed the basis of Section 8 of the Export Administration Act of 1979, implemented as Part 760 of the Export Administration Regulations (EAR). The EAR's anti-boycott provisions prohibit U.S. persons from taking certain actions with the intent to comply with, further, or support an unsolicited foreign boycott.
The OAC is responsible for administering and enforcing the Anti-Boycott Act of 2018, Part II of the Export Control Reform Act of 2018 (ECRA), and the antiboycott provisions in Part 760 of the EAR. These authorities discourage and, in some cases, prohibit U.S. companies from supporting boycotts maintained by foreign countries against U.S.-friendly nations. U.S. companies must report their receipt of boycott-related requests for information to the OAC and refrain from agreements to refuse to do business with boycotted countries or blacklisted persons for boycott-related reasons.
Violations of the anti-boycott laws can result in administrative and criminal penalties, including monetary fines of up to $300,000 per violation or twice the value of the underlying transaction, as well as the revocation of BIS export licenses. The ECRA outlines these potential sanctions, and the OAC determines the appropriate enforcement actions and recommended sanctions.
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Anti-boycott laws and human rights
The United States has a history of peaceful boycotts to address human rights abuses and drive political change. For instance, the 1960s boycott of white-owned businesses in Mississippi by the NAACP and the 2018 boycott of the National Rifle Association. Boycotts have also played a significant role in international campaigns against apartheid in South Africa and atrocities in Darfur.
In the context of the Israeli-Palestinian conflict, the Boycott, Divestment and Sanctions movement (BDS) was established in 2005. The primary goal of the BDS movement is to pressure Israel to withdraw from the occupied territories. The movement calls for a boycott of Israeli goods, particularly those produced in Israeli-occupied territories, and encourages divestment from Israeli corporations. Critics of the BDS movement argue that it is antisemitic, claiming that it seeks to delegitimize Israel and applies a double standard to the country. However, supporters of the movement refute these claims, asserting that opposing Israel as a Jewish state is anti-Zionist but not antisemitic. They emphasize that the BDS movement officially opposes antisemitism and targets boycott decisions based on Israel's complicity in human rights violations.
Anti-boycott laws in the US, such as the Anti-Boycott Act of 2018, aim to prevent US companies from participating in or supporting boycotts that are considered unsanctioned foreign boycotts. These laws prohibit US companies from taking certain actions, such as agreeing to refuse to do business with a boycotted country or blacklisted individuals associated with the boycott. The Office of Antiboycott Compliance (OAC) within the Bureau of Industry and Security (BIS) is responsible for enforcing these laws.
The application of anti-boycott laws in the context of human rights has been controversial. On the one hand, critics argue that these laws infringe on freedom of speech and the right to express views through non-violent means, which is protected under international human rights law. They contend that boycotts are a legitimate form of expression and political participation. Additionally, in certain cases, anti-boycott laws have been used to penalize companies that refuse to do business with illegal Israeli settlements, effectively deterring them from ending their involvement in human rights abuses.
On the other hand, proponents of anti-boycott laws argue that they are necessary to counteract the economic impact of boycotts and promote free trade. They assert that boycotts can disrupt economic activities and harm businesses that are indirectly involved in the boycotted entities. However, the interpretation and enforcement of anti-boycott laws vary across different states and jurisdictions, leading to legal challenges and debates over their constitutionality.
In conclusion, anti-boycott laws in the US have sparked debates over their compatibility with human rights, particularly the right to freedom of expression and the role of boycotts as a tool to address human rights abuses. The complex nature of the Israeli-Palestinian conflict and the differing perspectives on the BDS movement further complicate the discussion surrounding anti-boycott laws and human rights.
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Anti-boycott laws and US foreign policy
The United States has a policy of opposing restrictive trade practices or boycotts imposed by foreign countries against other countries that are friendly to the US. The anti-boycott laws were adopted to discourage and, in some cases, require US firms to refuse to participate in foreign boycotts that the US does not sanction. These laws are enforced by the Bureau of Industry and Security (BIS) and the Office of Antiboycott Compliance (OAC).
The anti-boycott laws are a set of regulations that prohibit US companies from complying with aspects of other countries' boycotts that the US does not support. For example, these laws have been used to prevent US companies from participating directly or indirectly in the Arab League's boycott of Israel. The Arab League's boycott has lessened over the years but remains in effect in some countries.
The anti-boycott laws are implemented through the anti-boycott provisions of the Export Administration Act of 1979 (EAA) and a 1977 amendment to the Tax Reform Act of 1976. The EAA specifies penalties for violations of the anti-boycott regulations, including criminal and administrative sanctions. Criminal penalties for a "knowing" violation can include a fine of up to $50,000 or five times the value of the exports involved, whichever is greater, and imprisonment of up to five years. Administrative penalties can include exclusion from practice.
There are exceptions to most of the prohibitions, including a major exception that permits exporters to refuse to do business with a boycotted country for non-boycott reasons, such as technical incompatibility or poor products or services. However, any person under US jurisdiction who is asked to enter into an agreement or provide information that would violate anti-boycott laws must report this to BIS.
The anti-boycott laws have been the subject of legal challenges, with critics arguing that they infringe on constitutionally protected interests, such as freedom of speech. In some cases, US states have used anti-boycott laws to punish companies that refuse to do business with illegal Israeli settlements in the West Bank. For example, in April 2019, an Israeli court rejected a Human Rights Watch legal challenge to the revocation of Airbnb's decision to remove settlement listings from its platform.
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Anti-boycott laws and employment
Anti-boycott laws prohibit US companies from complying with other countries' boycotts that the US does not support. These laws are enforced by the Office of Antiboycott Compliance (OAC) within the US Department of Commerce's Bureau of Industry and Security (BIS). The OAC administers and enforces the Anti-Boycott Act of 2018, which is part of the Export Control Reform Act of 2018 (ECRA). Under these laws, US companies must report their receipt of requests to engage in boycott-related activities or support unsanctioned foreign boycotts. Prohibited activities include agreements by US companies to refuse to do business with boycotted countries or blacklisted persons for boycott-related reasons.
The anti-boycott laws also apply to individuals. In Texas, for example, individuals were required to certify that they were not engaged in boycotts of Israel or settlements, or they would lose opportunities and income. The American Civil Liberties Union (ACLU) has challenged the constitutionality of several states' laws as violations of freedom of expression. In one case, the ACLU represented two university students who wanted to judge high school tournaments, a freelance writer, and a reporter. US federal courts have issued preliminary injunctions blocking the enforcement of anti-boycott laws in Kansas and Arizona, and legislators in both states have scaled back their laws.
Anti-boycott laws have also been used to target companies that refuse to do business with illegal Israeli settlements in the West Bank. More than 250 million Americans (78% of the population) live in states with anti-boycott laws or policies, and 17 of these states explicitly target companies that refuse to do business with Israel or Israeli settlements. Critics argue that these laws are unreasonable and infringe on constitutionally protected interests, such as freedom of speech. In response to these criticisms, some states have amended their laws. For example, in February 2020, an amendment was introduced to raise the certification exemption from $1,000 to $100,000 in Georgia after a documentary filmmaker, Abby Martin, sued the University of Georgia for cancelling her speaking arrangement because she refused to pledge not to boycott Israel.
The constitutionality of anti-boycott laws has been challenged in court. In April 2019, the Texan District Court dismissed three cases often cited by proponents of anti-BDS laws: Rumsfeld v. FAIR, International Longshoremen's Association v. Allied International, Inc., and Briggs & Stratton Corp. v. Baldridge. The Court held that "content-based laws...are presumptively unconstitutional" and that "viewpoint-based regulations impermissibly 'license one side of a debate' and 'create the possibility that the [government] is seeking to handicap the expression of particular ideas.'". The Court further asserted that the law relied on by the State, HB 89, was unconstitutional under the First Amendment as it restricted free speech.
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Frequently asked questions
Anti-boycott laws are a set of regulations that prohibit US companies from complying with other countries' boycotts that the US does not support. These laws are enforced by the Bureau of Industry and Security's Office of Antiboycott Compliance (OAC).
Anti-boycott laws prohibit US companies from taking certain actions in support of a boycott maintained by a foreign country against a country that is friendly with the US. Prohibited activities include refusing to do business with a boycotted country or blacklisted persons, and furnishing information about business relationships with a boycotted country.
The constitutionality of anti-boycott laws has been challenged by organisations such as the American Civil Liberties Union, which argues that these laws violate freedom of expression. In some cases, US federal courts have issued preliminary injunctions blocking the enforcement of anti-boycott laws. However, the Supreme Court has not addressed whether the "`unconstitutional conditions` doctrine" applies to these laws when no existing business relationship exists.
