Anti-boycott act undermines free speech rights

Freedom to Boycott Freedom to Boycott Massachusetts

by Susan Nicholson and Sarah Wunsch.  Originally published in the Gloucester Daily Times

Most people are unaware that a bipartisan majority of the U.S. House of Representatives is poised to undermine our free speech rights by passing the Israel Anti-Boycott Act, amended HR 1697. This act — described by the ACLU as “an unconstitutional infringement of core political speech rights” – criminalizes participation in the boycott, divestment and sanctions movement (BDS), a nonviolent movement using economic measures to pressure Israel to change its policies toward the Palestinians.

Two Massachusetts representatives, Joseph Kennedy and Richard Neal, are among the co-sponsors of this unconstitutional act.

The issue here is not the merits of BDS, but preservation of our constitutional rights. As Massachusetts Representative Michael Capuano has stated, he does not support BDS but believes others should be free to advocate it. (Ayanna Pressley, who recently defeated Capuano in the primary, takes a similar position.) And U.S. Sen. Elizabeth Warren, referring to a similar bill in the Senate, said “I think the boycott is wrong, but I think outlawing protected free speech activity violates our basic Constitution.”

When some of his constituents objected to Kennedy’s co-sponsoring the act, he told them: “Nothing about this bill will force us to buy or not buy anything against our will.” This is wrong, as can be shown by the following example.

Suppose the officers of a church deliberate over boycotting companies that profit from the Israeli occupation. As part of their deliberations, they review a 2016 UN report identifying activities in the occupied territory that raise human rights concerns, such as supplying surveillance equipment for Israeli settlements and checkpoints. After deliberating, the officers decide not to buy Hewlett-Packard printers for church offices, knowing that HP is one of the suppliers of such surveillance equipment.

If the Israel Anti-Boycott Act passes, the church could be fined and its officers jailed for five years. If that isn’t coercion, what is?

Defenders of the act often cite a 1984 court decision upholding the constitutionality of the law on which the act is modeled, the Export Administration Act. But the plaintiff in that case was motivated entirely by self-interested economic reasons. Consequently, the case did not present the First Amendment question – namely, whether persons can be punished for boycotting Israel in an attempt to change its policies.

A federal district case decided just this year squarely presents that key question. The plaintiff, Esther Koontz, was a high school math teacher challenging a Kansas state law that required state contractors to certify that they are not boycotting Israel. Because Ms. Koontz was following a call by her national church to boycott products associated with Israel’s occupation of Palestine, she could not in conscience make the certification. As a result, she lost her teacher training contract with the state.

In blocking Kansas from applying its anti-BDS law, the judge ruled that a boycott to express dissatisfaction with perceived injustice and to influence change in Israeli government action was protected activity under the First Amendment.

This is the recent case that representatives Kennedy and Neal should be studying, not the irrelevant 1984 case.

Adding insult to injury, a third Massachusetts representative, William Keating, sits on the House Foreign Affairs Committee that unanimously approved the Israel Anti-Boycott Act for a vote by the entire House under a suspension of the rules. This fast-track procedure severely limits the possibility for debate and is designed for non-controversial items, such as the naming of a U.S. post office. In a well-deserved rebuke to the committee’s action, the ACLU observed that “Surely a bill that directly impacts the political speech rights of Americans cannot be deemed to be so trivial a matter.”

Passage of the Israel Anti-Boycott Act is a top priority of the influential American Israel Public Affairs Committee, and would receive high praise from Israeli Prime Minister Benjamin Netanyahu. But we do not elect our representatives to promote the interests of a foreign country at the expense of our own constitution. This act must be voted down.

Susan T. Nicholson of Gloucester is a retired attorney who practiced in the Health Law Group of Ropes & Gray. She is currently a member of the Steering Committee of the Palestine Israel Working Group of Massachusetts Peace Action. Sarah Wunsch of Brookline, Mass., is also a retired attorney, having served long term on the legal staff of the American Civil Liberties Union of Massachusetts.