The Truth About the Israel Anti-Boycott Act

Summary: The Israel Anti-Boycott Act (S.720 and H.R.1697) expands existing U.S. law to prohibit compliance with anti-Israel boycotts led by international governmental organizations. Arguments that the legislation infringes upon First Amendment rights are incorrect. Nothing in the bill restricts constitutionally-protected free speech. Companies and individuals would remain entirely free to criticize Israel or boycott it on their own volition.

Contention #1: The bill would restrict free speech.

False. Nothing in this bill restricts constitutionally-protected free speech. The bill only regulates commercial conduct intended to comply with, further or support unauthorized foreign boycotts. American courts have routinely upheld federal laws restricting commerce that conflicts with U.S. foreign policy interests as not violating free speech. Accordingly, under the proposed legislation, companies and individuals would be barred from refusing to conduct business with Israel in order to satisfy a request from the United Nations or European Union. However, they would remain entirely free to boycott Israel on their own volition.

Contention #2: The bill would create new penalties for violations.

Untrue. The legislation simply extends existing penalties in the 1979 Export Administration Act (EAA) covering unsanctioned boycotts by foreign states to also cover boycotts led by international governmental organizations.

Contention #3: Commercial conduct is protected free speech.

Courts have repeatedly held that the EAA’s limits on commercial activity—including provisions that prevent U.S. companies from complying with the Arab League boycott of Israel—fall into the category of commercial speech, which does not merit the same constitutional protection as free speech. These rulings affirmed Congress’s wide authority to put limits on international commercial conduct, distinguishing such activity that furthers economic interests from free speech protections under the First Amendment.

Contention #4: Companies could not boycott Israel under this law.

False. A company on its own volition could refuse to do business with Israel for political or economic reasons. But just as companies today are not permitted to comply with the Arab Boycott of Israel, so too would they not be allowed to comply with boycott requests of international governmental organizations.  

Contention #5: Individuals could be punished for criticizing Israel.

Incorrect. This legislation only addresses instances in which U.S. entities—while conducting interstate or international commerce—intentionally further economic boycotts against Israel. It does not affect individuals that simply criticize Israel nor does it prevent them from speaking in favor of boycotts, divestment or sanctions (BDS) against Israel.

Contention #6: BDS supporters would be prosecuted.

Critics incorrectly state that violators of this legislation could end up in prison. There is nothing in this bill that could be reasonably construed to mean that the U.S. government will target individuals for their political beliefs. In the nearly 40 years since the EAA’s passage, enforcement has focused on companies that violate the law, not individuals.

Contention #7: Sharing business information would be punishable.

This flawed argument concerns the United Nations Human Rights Council’s blacklist of Israel. Critics misleadingly assert that a consumer could be subjected to criminal prosecution simply by seeking to learn about the degree to which a company does business in or with Israel—and then sharing that information. However, nothing in this bill prohibits an individual’s ability to inform the public about a company’s activities with or in Israel. The law simply bars furnishing information, in the conduct of commercial activity, directly to an international governmental organization to further a boycott against Israel.

Contention #8: Doing business in Israel would be required.

No. This legislation neither encourages nor compels U.S. companies or individuals to do business with Israel. Rather, the legislation only addresses instances in which U.S. entities—while conducting interstate or international commerce—intentionally further economic boycotts against Israel.