This bill doesn't criminalize free speech. This is another instance of hysteria. The same people who want to censor free speech when they don't like it are the ones attacking this bill. Adorable.
Prof. Eugene Kontorovich does a good job of explaining why it is not a violation of free speech:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/27/israel-anti-boycott-bill-does-not-violate-free-speech/?utm_term=.a1e5e4d1c946Here are the highlights:
Kontorovich's piece first:
1. He claims that there already is a law on the books that is directly relevant to this topic and conversation:
1977 Export Administration Act. This law was made in reaction to the Arab Boycott of Israel, though the law can apply to other countries as it doesn't just explicitly say it is only relevant to Israel.
The new bill just clarifies what defines a foreign boycott is and specifies punishments for violations of that law. This law has been held up for decades and it was even pointed out that "refusing to do business is not an inherently expressive activity, as the Supreme Court held in Rumsfeld v. FAIR." (
https://www.oyez.org/cases/2005/04-1152)
Also, this bill does nothing close to what the Anti-Israel side is claiming it does. The 1977 law was never used to punish activists who simply state that they support a boycott or that they oppose Israel or any other country. The 1977 law explicitly states that "the many regulations enacted pursuant to the law
already define 'support' to be limited to 'certain specified actions' that go well beyond merely 'speech' support."
An example of this:
"However, if a KKK member places his constitutionally protected expression of racial hatred within the context of a commercial transaction — for example, by publishing a “For Sale” notice that says that he will not sell his house to Jews or African Americans — it loses its constitutional protection. The Fair Housing Act forbids publishing such discriminatory notices, and few doubt the constitutionality of the Fair Housing Act."This is 100% relevant to what BDS aims to do by supporting foreign-backed boycotts. More importantly, BDS has engaged in these actions on college campuses (ex. putting eviction notices on Jewish student's dorms and apartments at NYU:
http://www.nydailynews.com/new-york/pro-palestine-nyu-students-serve-fake-eviction-notices-jewish-undergrads-article-1.1768087)
More importantly, irrelevant to Israel as a whole, the ACLU's misguided opposition to this bill, if legally successful, could void ALL American sanctions on countries like Cuba, Iran, Russia and N. Korea:
"If refusing to do business with a country is protected speech because it could send a message of opposition to that country’s policies, doing business would also be protected speech. Thus, anyone barred from doing business with Iran, Cuba or Sudan would be free to do so if they said it was a message of support for the revolution, or opposition to U.S. policy, or whatever."
Prof. Eugene Volokh also does a good job of explaining why in this own article:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/25/theres-no-first-amendment-right-to-engage-in-anti-israel-boycotts-but-there-is-a-right-to-call-for-such-boycotts/?utm_term=.2a69566c29f9This article goes into some more detail about what is constitutionally permissible and how the ACLU's opposition could have unintended consequences.
