Jonathan A. Greenblatt is chief executive of the Anti-Defamation League. Stuart Eizenstat, senior counsel at the law firm of Covington & Burling, helped negotiate anti-boycott laws in 1977 as President Jimmy Carter’s chief White House domestic policy adviser.
Bipartisan legislation is making its way through Congress that would bar Americans from joining in boycotts by international organizations against companies doing business in Israel. The bill, known as the Israel Anti-Boycott Act, has attracted much criticism from free-speech advocates, including the American Civil Liberties Union, which argues that the legislation would violate First Amendment rights.
These concerns are unfounded. It is important to understand why this legislation is needed and why it would not amount to a violation of free speech.
In 1977, the Business Roundtable, American Jewish organizations and the Carter administration supported and Congress passed legislation that prohibited American companies from complying with boycotts imposed by foreign governments against nations friendly to the United States. The measure aimed squarely at the Arab League's secondary boycott of Israel and was designed to protect Americans from discriminatory action if they wished to do business with Israel. Over its 40 years of operation, the law helped to break the back of the Arab boycott.
The Israel Anti-Boycott Act would extend the 1977 law to international organizations, such as the United Nations or even the European Union, that might parallel the Arab League’s original “blacklist” of companies doing business with Israel, which was the heart of its boycott.
It couldn't come at a better time. Already, the U.N. Human Rights Council has passed a resolution last year requesting its high commissioner for human rights to create a database of companies that operate in or have business relationships in the West Bank beyond Israel's 1949 Armistice Lines, which includes all of Jerusalem, Israel's capital.
If the high commissioner implements this resolution, as he appears determined to do, it will create a new “blacklist” that could subject American individuals and companies to discrimination, yet again, for simply doing business with Israel.
Moreover, the European Union has instituted a mandatory labeling requirement for agricultural products made in the West Bank and has restricted its substantial research and development funds to Israeli universities and companies to only those with no contacts with territories east of the Armistice Line.
None of the many U.N. member states that are serial human rights violators are accorded similar treatment. Not Iran. Not Syria. Not North Korea. Only Israel.
These kinds of actions do not create the right atmosphere to prompt resumption of peace talks between Israel and the Palestinians that the Trump administration is seeking to jump-start.
In criticizing the pending anti-boycott legislation, the ACLU and other opponents ignore the four-decade track record of the 1977 law. They have not cited a single instance in which “political beliefs” have led to civil or criminal penalties under current law. Courts have repeatedly upheld the 1977 act against constitutional challenges on free-speech grounds as a legitimate restriction on commercial conduct.
To be clear, criticism of Israel, its treatment of Palestinians and its settlement policies are indeed protected by the First Amendment as free speech. The Israel Anti-Boycott Act does not target the rights of U.S. individuals and companies to criticize Israel, which — like any country — is subject to criticism for its policies.
What companies and individuals would not be able to do under this legislation, however, is boycott Israel at the behest of international governmental organizations, just as they are now prohibited from doing at the behest of Arab nations. Congress has wide constitutional authority to limit such discriminatory international commercial conduct that lawmakers find contrary to U.S. national interests.
To the extent any of this is unclear in the current draft of the bill, we would support further efforts to clarify this fact. The authors of the bill in the Senate have already indicated their willingness to consider modifications.
The Israel Anti-Boycott Act, like its 1977 predecessor, is designed to protect U.S. businesses and individuals from being pressured into a discriminatory economic boycott of Israel or other friendly nations by international governmental organizations. While Congress has a heavy agenda, this bill should be passed promptly, before another “blacklist” of U.S. companies becomes a reality.
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