Anti-Israel boycott ban: how is this possibly legal?

[Deeg]

From this Boston.com article: https://www.boston.com/news/politics/2017/07/19/rep-joe-kennedy-iii-reviewing-controversial-israel-anti-boycott-bill-he-supports-following-aclu-concerns

In a nutshell: a proposed bill makes it illegal to support the pro-Palestinian BDS boycott movement. From the article, the bill:

would make supporting a movement to boycott Israel over its treatment of Palestinians a felony punishable by up to a $1 million fine and 20 years in prison, according to the American Civil Liberties Union.

It supposedly gets bi-partisan support, which flummoxes me. The article doesn’t detail what “supporting” means but it’s hard to see how this is possibly legal or good. Apparently the ACLU agrees.

[Velocity]

Yeah, I cannot see how this is not in violation of the 1st Amendment. There may be something about the bill that we don’t know about, something that would explain it better.

And more than 200 Congressmen supporting it?

[Smapti]

I can’t even see how it would be enforceable. Am I going to be required to purchase a certain amount of Israeli-made goods?

[Captain_Amazing]

It’s already illegal to participate in a boycott against a friendly country because a foreign power asks you to. The bill specifically adds requests to boycott Israel by the United Nations and the EU to the general boycott ban.

[Deeg]

@Captain_Amazing

It’s already illegal to participate in a boycott against a friendly country because a foreign power asks you to. The bill specifically adds requests to boycott Israel by the United Nations and the EU to the general boycott ban.

I’m not sure how this applies. Is the BDS boycott movement a foreign power? To my (admittedly low) knowledge, BDS is advocating for a peaceful boycott to get Israel to stop pushing new settlements.

[Deeg]

@Smapti

I can’t even see how it would be enforceable. Am I going to be required to purchase a certain amount of Israeli-made goods?

I would imagine that donating money to BDS would run afoul of the law.

[Captain_Amazing]

@Deeg

I’m not sure how this applies. Is the BDS boycott movement a foreign power? To my (admittedly low) knowledge, BDS is advocating for a peaceful boycott to get Israel to stop pushing new settlements.

It’s directed against the UN Human Rights Commission, which voted to set up a database of companies doing business with Israeli settlements and to encourage a blacklist of those companies

It’s already illegal for US companies to participate in the Arab League boycott of Israel, and has been since the 1970s. Here’s the website of the Commerce Department office that enforces the law.

https://www.bis.doc.gov/index.php/enforcement/oac

[Captain_Amazing]

@Deeg

I would imagine that donating money to BDS would run afoul of the law.

It wouldn’t. You would run afoul of the law if you were a US based company that engaged in international trade and entered into agreements with foreign countries or international governmental organizations not to sell goods to Israel or Israeli settlements, gave them information about which companies that your company did business with that sell goods to Israel or Israeli settlements, or entered into agreements that were conditional on you not selling goods to Israel or Israeli settlements.

[BigT]

Let me ask lawyer Dopers. What are people’s rights in regards to boycotts? I’ve always assumed they were a form of speech.

[Alessan]

@Deeg

To my (admittedly low) knowledge, BDS is advocating for a peaceful boycott to get Israel to stop pushing new settlements.

According to J-Street:

J Street advocates for a two-state solution and a secure, Jewish, and democratic future for Israel. The Global BDS Movement does not support the two-state solution, recognize the right of the Jewish people to a state, or distinguish between opposition to the existence of Israel itself and opposition to the occupation of the territory beyond the Green Line. Further, some of the Movement’s supporters and leaders have trafficked in unacceptable anti-Semitic rhetoric. The Movement is not a friend to Israel, nor does its agenda, in our opinion, advance the long-term interests of either the Israeli or Palestinian people.

Note that J-Street is a left-wing American organization that the current Israeli government basically considers pro-Palestinian traitors.

[Evan_Drake]

I would have thought adding Israel to the number of countries one cannot ship to would be sufficient.
There must be any number of 'stans and South Sea Islands too difficult to deliver to. Some for safety reasons; hell, some British firms make a big deal out of delivering to the Highlands and Islands, which is in the same country.
Anyway I don’t see how a US company can be forced not to decline orders from any other country on earth, including Britain, Germany, Russia or Tibet etc., if they don’t want to.

[DPRK]

There is already an ongoing issue, in regards to Europe anyway, where certain settlements are not regarded as being in Israel (there is a list based on ZIP code) and therefore products originating there not eligible for tax breaks and free trade agreements.

If you couldn’t ship to/from Tel Aviv, that would definitely fly in the face of the EU-Israel Association Agreement.

[Tom_Tildrum]

@Deeg

The article doesn’t detail what “supporting” means …

If I’m picking my way through the legislation correctly, 50 USC 4607 is the existing law that would be modified by the proposed bill. There are several prohibitions, but this seems to be the broadest:

(A) Refusing, or requiring any other person to refuse, to do business with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, pursuant to an agreement with, a requirement of, or a request from or on behalf of the boycotting country. The mere absence of a business relationship with or in the boycotted country with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, does not indicate the existence of the intent required to establish a violation of regulations issued to carry out this subparagraph.

(B) Refusing, or requiring any other person to refuse, to employ or otherwise discriminating against any United States person on the basis of race, religion, sex, or national origin of that person or of any owner, officer, director, or employee of such person.

(C) Furnishing information with respect to the race, religion, sex, or national origin of any United States person or of any owner, officer, director, or employee of such person.

(D) Furnishing information about whether any person has, has had, or proposes to have any business relationship (including a relationship by way of sale, purchase, legal or commercial representation, shipping or other transport, insurance, investment, or supply) with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person which is known or believed to be restricted from having any business relationship with or in the boycotting country. Nothing in this paragraph shall prohibit the furnishing of normal business information in a commercial context as defined by the Secretary.

(E) Furnishing information about whether any person is a member of, has made contributions to, or is otherwise associated with or involved in the activities of any charitable or fraternal organization which supports the boycotted country.

(F) Paying, honoring, confirming, or otherwise implementing a letter of credit which contains any condition or requirement compliance with which is prohibited by regulations issued pursuant to this paragraph, and no United States person shall, as a result of the application of this paragraph, be obligated to pay or otherwise honor or implement such letter of credit.

It’s murky in places, but I discern a few things from it:
[ul]
[li]It does not prohibit any political activity; one can still advocate for BDS and donate to organizations that do so. [/li][li]It definitely prohibits business contracts that require compliance with BDS. Suppose I want to sell refrigerators in the UAE, but UAE law requires that any distribution contract must contain a provision whereby the supplier agrees to boycott Israel – I cannot sign that contract. Or at least, I can sign it but I cannot comply with that provision. [/li][li]Nor can I even sign a distribution contract that simply requires me to disclose whether I do business with Israel. [/li][li]If the UAE trade minister says, “it’s not a legal requirement, but we would really like for suppliers doing business with us to agree to boycott Israel,” I cannot so agree.[/li][li]I cannot try to win a distribution contract by volunteering to boycott Israel “on behalf of” the UAE, even if the UAE does not bring it up in negotiations. [/li][li]Here’s where it gets tricky: The law seems to be designed to prohibit support of boycotts imposed or requested by other countries (and the amendment would add the UN). I do not read this law to bar me from deciding to boycott Israel, purely motivated by my own assessment of Israeli policy (or even just sheer anti-Semitism)and absent any consideration of the positions held by Arab nations and the UN. The problem (for both me and the government) would seem to be in proving my motivation.[/li][/ul]

The first point and the last point may be what renders the law constitutional. This is not my area, and I’m not talking from any expertise.

There appears to be disagreement among First Amendment scholars. There is also opposition to the law even from some BDS opponents on the right.

[Procrustus]

@Tom_Tildrum

I do not read this law to bar me from deciding to boycott Israel, purely motivated by my own assessment of Israeli policy (or even just sheer anti-Semitism)and absent any consideration of the positions held by Arab nations and the UN. The problem (for both me and the government) would seem to be in proving my motivation.

I’m not sure. It prohibits “refusal to do business with or in Israel or with blacklisted companies”

Conduct that may be penalized under the TRA and/or prohibited under the EAR includes:
Agreements to refuse or actual refusal to do business with or in Israel or with blacklisted companies.

Ok, just for fun, I hereby refuse to do business with Israel. Come and get me Office of Antiboycott Compliance.

[Evan_Drake]

Actually, Jewish firms in America agreed to boycott nazi Germany during the 1930s; never heard that this wasn’t their entire right so to do.

[Deeg]

@Alessan

J-Street: The Global BDS Movement does not support the two-state solution, recognize the right of the Jewish people to a state, or distinguish between opposition to the existence of Israel itself and opposition to the occupation of the territory beyond the Green Line.

That seems to be a bit of a mischaracterization of BDS’s position. From their FAQ:

The BDS movement does not advocate for a particular solution to the conflict and does not call for either a “one state solution” or a “two state solution”. Instead, BDS focuses on the realization of basic rights and the implementation of international law.

[Deeg]

@Captain_Amazing

It wouldn’t. You would run afoul of the law if you were a US based company that engaged in international trade and entered into agreements with foreign countries or international governmental organizations not to sell goods to Israel or Israeli settlements, gave them information about which companies that your company did business with that sell goods to Israel or Israeli settlements, or entered into agreements that were conditional on you not selling goods to Israel or Israeli settlements.

That seems more reasonable (or at least less troubling), although I’m still puzzled why the original article uses the word “movement” and the BDS organization is mentioned. It comes across as trying to criminalize what the organization is trying to do.

[bobot]

@Captain_Amazing

It’s already illegal to participate in a boycott against a friendly country because a foreign power asks you to. The bill specifically adds requests to boycott Israel by the United Nations and the EU to the general boycott ban.

If I keep my big yap shut, how does Big Brother know who I am boycotting?
ETA: I see Tom Tildrum has shed some light on my question.

[Melbourne]

@Procrustus

I’m not sure. It prohibits “refusal to do business with or in Israel or with blacklisted companies”

"Quote:
Conduct that may be penalized under the TRA and/or prohibited under the EAR includes:
Agreements to refuse or actual refusal to do business with or in Israel or with blacklisted companies. "

Where did the quote come from?

[Captain_Amazing]

@Deeg

That seems more reasonable (or at least less troubling), although I’m still puzzled why the original article uses the word “movement” and the BDS organization is mentioned. It comes across as trying to criminalize what the organization is trying to do.

Because it’s a kind of poorly written newspaper article?

@Melbourne

Where did the quote come from?

That quote comes from the website of the US Office of Antiboycott Compliance