Blogs

Protecting The Right To Dissent And Boycott

Posted on behalf of Guest Blogger Rahul Saksena, Esq. 

Staff Attorney, Palestine Legal, Chicago, IL

More and more U.S. activists are embracing boycotts as a tactic to peacefully pressure Israel to comply with international law, and to influence public opinion in the United States in favor of the human rights of Palestinians. In response, some lawmakers have scrambled to enact laws aimed at limiting boycotts of Israel. Because the Supreme Court has long held that boycotts “to bring about political, social and economic change” are unquestionably protected under the First Amendment,[1] these legislative initiatives raise a number of constitutional concerns. 

Last year, legislators in New York and a number of other states introduced bills aimed at prohibiting colleges and universities from using public money to fund groups – like the American Studies Association – that support boycotts of Israel.[2] But after civil rights and civil liberties groups protested that the bills flagrantly violated the First Amendment,[3] lawmakers backed off.[4] None of the bills became binding law.

In 2015, some legislators became creative with their strategies, crafting bills aimed at punishing human rights boycotts of Israel in ways aimed at First Amendment challenges. For example, the Illinois legislature passed a bill that creates a list of companies that boycott Israel and requires the state’s pension funds to divest from those companies.[5] Though the bill falls short of prohibiting boycotts (a clear First Amendment violation[6]), the Illinois government’s use of financial levers to punish or dissuade certain speech raises concerns.[7] Parallels can be drawn to O’Hare Truck Service v. City of Northlake, in which the Supreme Court held that a city violated the First Amendment by firing a contractor in retaliation for its refusal to support a particular political candidate. While there are differences between companies that contract with the government and companies that the government invests in, the fact remains that the Illinois bill is an attempt to punish political speech with which it disagrees.

In South Carolina, Governor Nikki Haley recently signed a law aimed at quashing boycotts of Israel.[8] The South Carolina law prohibits any government or agency in the state from doing business with companies that engage in boycotts motivated by the race, color, religion, gender, or national origin of the targeted person or entity. The South Carolina law  appears to be an attempt to use anti-discrimination language to punish political boycotts by prohibiting boycotters from contracting with the state, a clear violation of the principles laid out in O’Hare.[9]  

A third bill, which was introduced in – but did not pass – the New York State Legislature this year,[10] would create a list of individuals, entities, groups, and businesses that boycott Israel and prohibit the state from doing business with anyone on the list. It would also require the state’s pensions to divest from companies that boycott Israel. This bill, a combination of the Illinois and South Carolina approaches, raises the same constitutional concerns.

In Pennsylvania, a bill was introduced that would cut state funding of any college or university that boycotts or divests from Israel.[11] This violates the settled principle that legislators who dislike the content of certain types of speech cannot deny funding to institutions to punish or suppress that speech.[12] The bill is being closely monitored by civil rights and civil liberties organizations that recently sent the sponsor a letter outlining First Amendment concerns with the bill.[13]

At the federal level, an amendment imposing anti-boycott policies on ongoing trade negotiations between the U.S. and the European Union was attached to a controversial free trade bill that was signed into law by President Obama in late June[14] Though the Obama Administration has distanced itself from aspects of the amendment,[15] it represents an attempt by Congress to influence European policies toward Israel. Earlier versions of the anti-boycott amendment also required the White House and certain foreign companies to report on boycotts against Israel, but these affirmative reporting requirements were stripped out of the final bill.

And in legislatures across the country, non-binding resolutions condemning human rights boycotts of Israel have been introduced, and passed in some cases.[16] Regardless of whether a legislative initiative is binding or not, and regardless of whether it affects individuals and entities in the U.S. or abroad, whenever the government officially condemns one side of a political debate, there is an inevitable chilling effect on the speech of those who support that viewpoint.

Indeed, it is controversial and politically-unpopular speech that needs the most protection.[17] Freedom of speech – including the freedom to engage in political boycotts – are no less important in the Israeli-Palestinian context. Just last week, the U.S. Supreme Court noted that questions arising from the Israeli-Palestinian conflict “are among the most difficult and complex in international affairs,”[18] an observation that highlights the need to defeat legislative measures that restrict space for political debate.