Anaya Nolan
Several US states have adopted anti-BDS laws, which restrict state agencies from conducting business with companies that boycott Israel. These laws have sparked controversy, with critics arguing that they infringe on freedom of expression and are discriminatory. Supporters of the laws, however, claim that they protect the First Amendment rights of those who choose to boycott Israel. The constitutionality of these laws remains unresolved, and the debate centres on whether boycotts of Israel can be considered discriminatory and if political boycotts are protected speech. The spread of anti-BDS laws in the US has been influenced by lobbying from groups like the Israel Allies Foundation, and they have impacted businesses, organisations, and individuals who boycott or call for boycotts against Israel.
| Characteristics | Values |
|---|---|
| Number of US states with anti-boycott laws | 27 |
| Number of US states with anti-boycott laws that explicitly target companies that refuse to do business in Israeli settlements | 17 |
| Maximum criminal penalty for US citizens, businesses and organisations that boycott Israel | $1 million fine and 20 years in prison |
| Minimum civil penalty for US citizens, businesses and organisations that boycott Israel | $250,000 |
| US states with anti-boycott laws | Alaska, Florida, Texas, New York, South Carolina, Illinois, Georgia, Arizona |
| Organisations that oppose anti-boycott laws | American Civil Liberties Union (ACLU), Human Rights Watch, CAIR Legal Defense Fund, Partnership for Civil Justice Fund, Israel Allies Foundation (IAF) |
| Organisations that support anti-boycott laws | AIPAC, Israel American Council |
| Individuals who oppose anti-boycott laws | Timothy Cuffman, Charlie Kirk, Steve Bannon, Tucker Carlson, Matt Walsh, Marjorie Taylor Greene, Thomas Massie |
| Individuals who support anti-boycott laws | Marco Rubio, Eugene Kontorovich, Alan Clemmons, Joseph Sabag |
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What You'll Learn
The constitutionality of anti-BDS laws
Anti-BDS laws are state laws or executive orders that penalize businesses, organizations, or individuals that engage in or call for boycotts against Israel. Twenty-seven states have implemented such laws, with the specific provisions varying widely. Some laws only apply to companies that refuse to do business in Israel, while others also target those that refuse to do business in Israeli settlements.
The debate surrounding the constitutionality of these laws revolves around two central issues:
- Discrimination: The first issue is whether boycotts of Israel, and boycotts in general, can be considered a form of discrimination on par with discrimination based on gender, race, or similar attributes. If boycotts of Israel are deemed discriminatory, the government may have the authority to enact laws against them.
- Freedom of Speech: The second issue is whether political boycotts are protected speech under the First Amendment. Critics argue that participation in political boycotts is a form of protected speech and that anti-BDS laws violate freedom of speech by coercing contractors to profess a specific viewpoint (not boycotting Israel) as a condition for government contracts or funding. They cite cases such as NAACP v. Claiborne Hardware Co. and USAID v. Alliance for Open Society (2013) to support their argument.
Federal courts in Arizona, Kansas, and Texas have blocked similar state anti-boycott laws on First Amendment grounds, with the ACLU playing a significant role in these challenges. However, in June 2022, the United States Court of Appeals for the Eighth Circuit held that the law did not violate the First Amendment as it served "purely commercial purposes."
The spread of anti-BDS laws in the United States has been influenced by the lobbying efforts of the Israel Allies Foundation (IAF), which encourages the formation of pro-Israel caucuses in foreign parliaments.
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The impact of anti-BDS laws on free speech
The Boycott, Divestment, Sanctions (BDS) movement has sparked debate over anti-BDS laws' impact on free speech. Critics argue that these laws infringe on the First Amendment right to freedom of speech and political expression. They claim that boycotts are a legitimate form of protest and that anti-BDS laws are discriminatory against a disfavoured political viewpoint. In contrast, proponents argue that BDS boycotts are discriminatory against Israelis and can be considered hate speech, justifying legal restrictions.
The spread of anti-BDS laws in the United States has led to legal challenges and controversies. As of 2020, the constitutionality of these laws remains unresolved in courts. Critics, including the American Civil Liberties Union (ACLU), argue that anti-BDS laws violate freedom of expression by coercing individuals and companies to profess a specific viewpoint as a condition for government funding or contracts. They cite legal precedents, such as NAACP v. Claiborne Hardware Co., to support their claim that participation in political boycotts is protected speech under the First Amendment.
Several individuals and organisations have filed lawsuits challenging anti-BDS laws and their impact on free speech. In 2020, documentary filmmaker Abby Martin filed a lawsuit against the State of Georgia and Georgia Southern University after her speaking arrangement was cancelled due to her refusal to sign a pledge not to boycott Israel. The United States District Court for the Northern District of Georgia ruled in Martin's favour, holding that her First Amendment rights had been violated. Similar lawsuits have been filed by students, writers, and reporters represented by the ACLU in states like Texas and New York.
The specific provisions of anti-BDS laws vary across different states and countries. In some cases, laws or policies explicitly target companies that refuse to do business with Israel or Israeli settlements. For example, New York published a blacklist of companies participating in boycott activity targeting Israel, while Florida and Texas scrutinised and penalised Airbnb for its decision to remove settlement listings from its platform. These actions have sparked protests and debates on college campuses and across the country, with tensions rising due to ongoing conflicts in the region.
While the debate over the impact of anti-BDS laws on free speech continues, it highlights the complex balance between protecting freedom of expression and addressing perceived discrimination or hate speech. The outcome of legal challenges and public opinion will shape the future of these laws and their impact on boycotts as a form of political expression.
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The use of anti-BDS laws to punish businesses
Anti-BDS laws have been used to punish businesses in several ways. In the United States, 27 states have adopted laws or policies penalizing businesses, organizations, or individuals that engage in or call for boycotts against Israel. These laws often target companies that refuse to do business in Israeli settlements, even if their laws do not explicitly extend to these territories. For example, New York published a list of companies participating in boycott, divestment, or sanctions activity targeting Israel, with which the state cannot invest.
Some states have also targeted companies that refuse to use Israeli products or services in their operations. Florida added Airbnb to its list of "scrutinized companies that boycott Israel," and banned state employees from using the site for work-related trips. The University of Texas administration also prohibited the use of state money to book accommodations on Airbnb.
Anti-BDS laws have also impacted individuals. In May 2018, a Human Rights Watch official had their work visa revoked due to allegations of supporting boycotts of Israel. In another instance, documentary filmmaker Abby Martin filed a free speech lawsuit against the State of Georgia and Georgia Southern University after her speaking arrangement was cancelled when she refused to sign a pledge agreeing not to boycott Israel.
The constitutionality of anti-BDS laws in the US remains a subject of debate. Critics argue that these laws violate the First Amendment by targeting political expression and coercing contractors to profess a specific viewpoint. However, in June 2022, the United States Court of Appeals for the Eighth Circuit ruled that anti-BDS laws did not violate the First Amendment, as they served "purely commercial purposes."
Anti-BDS initiatives have also gained traction outside the US, particularly in Europe. French prosecutors have brought criminal charges against activists promoting boycotts of Israel, resulting in some convictions.
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The spread of anti-BDS laws in US states
The Boycott, Divestment, and Sanctions (BDS) movement calls for boycotting Israel until it ends its occupation, treats Palestinian citizens equally, and honours internationally recognised rights. The spread of anti-BDS laws in US states has been influenced by the lobbying of the Israel Allies Foundation (IAF), which encourages the formation of pro-Israel caucuses in foreign parliaments. The IAF created a model act, a "template bill" that can be easily enacted in multiple legislatures, by combining the anti-BDS bills in South Carolina and Illinois.
As of April 2024, 27 US states have adopted laws or policies penalising businesses, organisations, or individuals that boycott Israel. These include Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, and Wisconsin.
Some states have targeted companies that refuse to do business in Israeli settlements, even if their laws do not explicitly extend to Israeli-controlled territories. For example, New York published a blacklist of companies participating in BDS activity targeting Israel, including two grocers concerned with products originating in settlements. Florida added Airbnb to its list of scrutinised companies that boycott Israel and banned state employees from using the platform for work trips.
The constitutionality of anti-BDS laws is debated. Critics argue that these laws infringe on freedom of speech and are discriminatory against disfavoured political expression. They cite cases such as USAID v. Alliance for Open Society (2013), where the Supreme Court ruled that the government cannot require organisations to profess a specific viewpoint as a condition for funding. Proponents, however, argue that boycotts of Israel are a form of discrimination against Israelis and can be regulated under existing anti-discrimination laws.
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The criticism of anti-BDS laws by civil liberties organisations
Several civil liberties organisations have criticised anti-BDS laws, arguing that they violate freedom of expression and the right to boycott. The American Civil Liberties Union (ACLU), for instance, has challenged the constitutionality of several states' laws, including in Texas, Florida, and New York. In Texas, the ACLU represented four Texans in a case against a state law requiring government contractors to certify that they are not boycotting Israel or doing business with Israel or Israeli-controlled territories. The federal court blocked the law as unconstitutional, ruling that it violated the First Amendment. Similarly, in Florida, the ACLU criticised an anti-BDS bill, SB 86, as a form of "retribution for the content of speech" and warned of costly litigation challenging its constitutionality.
The ACLU and other critics argue that anti-BDS laws discriminate against protected political expression. They contend that boycotts are a form of political expression protected under the First Amendment, and that anti-BDS laws specifically target boycotts of Israel or Israeli settlements due to the government's disapproval of the boycott's message of protest against Israel. Critics also argue that anti-BDS laws are unconstitutional because participation in political boycotts is protected speech, and citizens cannot be compelled to relinquish their First Amendment rights to receive government contracts. They cite cases such as NAACP v. Claiborne Hardware Co. and USAID v. Alliance for Open Society to support their argument.
Additionally, critics claim that anti-BDS laws are overly broad and vague, failing to clearly define what activities are targeted. For example, Timothy Cuffman criticises the Arizona anti-BDS statute's definition of "boycott" as overly broad and extending beyond the common understanding of the term. Critics also argue that these laws do not adequately distinguish between boycotts of Israel and boycotts of Israeli settlements, which could lead to full boycotts of Israel. This lack of specificity has led to concerns about the potential for arbitrary enforcement and the chilling of legitimate political expression.
Beyond legal challenges, civil liberties organisations have also urged governments and counties to respect the right to boycott and protect free speech. For instance, the New York Civil Liberties Union urged Nassau County to withdraw its threat of legal action against a concert by BDS activist Roger Waters and to repeal its anti-BDS law. In another case, the Council on American-Islamic Relations represented a documentary filmmaker, Abby Martin, in a free speech lawsuit against the State of Georgia and Georgia Southern University over its anti-BDS law. The United States District Court for the Northern District of Georgia ruled in Martin's favour, holding that her First Amendment rights had been violated.
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Frequently asked questions
The 'Can't Boycott Israel' law refers to anti-BDS laws or policies that restrict individuals, businesses, or organizations from boycotting Israel. BDS stands for the Boycott, Divestment, and Sanctions movement, which calls for boycotts of Israel to end its human rights violations. These laws are present in various U.S. states and have sparked debates about their constitutionality and impact on free speech.
Supporters of the law, including certain Republican and Democratic lawmakers, argue that it is necessary to combat discrimination and protect Israel's interests. They believe that governments should be free to end contracts with companies that boycott Israel and that these laws do not infringe on free speech.
Critics of the law, including the American Civil Liberties Union (ACLU) and other civil rights organizations, argue that it violates freedom of expression and discriminates against legitimate political expression. They claim that boycotts are a form of protected political speech under the First Amendment and that anti-BDS laws target specific viewpoints unlawfully.
The 'Can't Boycott Israel' law has led to penalties and blacklisting for businesses and individuals that refuse to do business with Israel or Israeli settlements. This includes economic sanctions, loss of government contracts, and even potential criminal fines and imprisonment in some cases. The law has sparked protests and lawsuits, with some states and companies challenging its constitutionality and impact on free speech.
