Amirah Mohammad*

“[Speech] concerning public affairs is more than self-expression; it is the essence of self-government.”[1] The recently proposed “Israel Anti-Boycott Act” in Congress reflects a legal trend in the United States that threatens activists by suppressing activism. As of November, twenty-six states, including Florida, Texas, and Arizona, already adopted legislation opposing the Boycott, Divestment, and Sanctions (“BDS”) movement.[2] The Israel Anti-Boycott Act takes the opposition a step further. The Act’s initial proposal made participation in the international boycott of Israel a felony.[3] The act has since been amended to remove potential jail time as a possible penalty, but still allows for criminal penalties of up to $1 million.[4]

The BDS movement is like any other boycott, or nonviolent political, social, or economic protest. BDS is especially similar to the boycott of South Africa apartheid and the boycotts during the Civil Rights movement, both in cause and in method. BDS activists should be protected by the First Amendment because its activities are like those of the NAACP members in Claiborne Hardware Co., i.e., a nonviolent protest demanding justice.[5]

The United States, like other nations, has the power to bring about international change by adopting certain legislation. This was evident when anti-apartheid legislation was adopted globally, including the United States’ Anti-Apartheid Act of 1986, in protest of South Africa apartheid.[6] Even if the United States continues to remain allied with Israel, adopting legislation that suppresses activism with regard to the BDS movement threatens all forms of activism and free speech.

Boycotting is a non-violent form of protest that is considered protected expressive speech.[7] It is essential to the very core of democratic values. It is also an important way to bring about social or political change, considering it played a significant role in both the Civil Rights Movement and the movement to end apartheid in South Africa. When legislation restricting the right to engage in the BDS movement is challenged in court, the Supreme Court should strike it down as unconstitutional. After holding that the right to boycott is protected by the First Amendment as protected expressive speech,[8] the Supreme Court clarified that boycotting is a central part of the constitution and of any nation with free trade of ideas. The Supreme Court has stated that “expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’”[9] Therefore, not only is boycotting protected expressive speech, but the ability to engage in expression on public issues is a critical element in our society and the Supreme Court has treated it as such. Because of this, the BDS movement should not be treated any differently.

Anti-BDS legislation is not only a threat to BDS activists, but it is a threat to the very core of activism in the United States. Therefore, Anti-BDS legislation should be struck down as unconstitutional. The Israel Anti-Boycott Act is “a full-scale attack on Americans’ First Amendment freedoms. Political boycotts, including boycotts of foreign countries, have played a pivotal role in this nation’s history—from the boycotts of British goods during the American Revolution to the Montgomery Bus Boycott to the campaign to divest from apartheid South Africa.”

* J.D. candidate, 2019, Florida International University College of Law.

[1] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).

[2] Anti-BDS Legislation by State, Palestine Legal, https://palestinelegal.org/righttoboycott/ (last visited Feb. 8, 2019).

[3] Glenn Greenwald & Ryan Grim, U.S. Lawmakers Seek to Criminally Outlaw Support for Boycott Campaign Against Israel, Intercept, (July 19, 2017, 12:30 PM), https://theintercept.com/2017/07/19/u-s-lawmakers-seek-to-criminally-outlaw-support-for-boycott-campaign-against-israel/.

[4] Kate Ruane, Congress Is Trying to Use the Spending Bill to Criminalize Boycotts of Israel and Other Countries, ACLU, (Dec. 10, 2018, 6:15PM), https://www.aclu.org/blog/free-speech/rights-protesters/congress-trying-use-spending-bill-criminalize-boycotts-israel-and.

[5] Claiborne Hardware Co., 458 U.S. at 913–915.

[6] Israeli Practices towards the Palestinian People and the Question of Apartheid, U.N. Doc. E/ESCWA/ECRI/2017/1 (2017), https://electronicintifada.net/sites/default/files/2017-03/un_apartheid_report_15_march_english_final_.pdf (concluding that Israel is guilty of the crime of apartheid and further stating that: “Apartheid in southern Africa was brought to an end, in part, by the cumulative impact of a variety of measures, including economic sanctions and sports boycotts, undertaken with the blessing of United Nations bodies and many Member States, and with grassroots support in States with strong strategic and economic ties with South Africa. The effectiveness of the anti-apartheid campaign was in large part due to the transnational activism of civil society, which reinforced the intergovernmental consensus that took shape in the United Nations.”)

[7] Claiborne Hardware Co., 458 U.S. at 913–915.

[8] Id.

[9] Id. at 913 (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)).

[10] Kate Ruane, Congress Is Trying to Use the Spending Bill to Criminalize Boycotts of Israel and Other Countries, ACLU, (Dec. 10, 2018, 6:15PM), https://www.aclu.org/blog/free-speech/rights-protesters/congress-trying-use-spending-bill-criminalize-boycotts-israel-and.