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This report provides information and analysis on a boycott, divestment, and sanctions ("BDS") movement against Israel. The BDS movement is generally seen as a loose grouping of actors from various countries who advocate or engage in economic measures against Israel or Israel-related individuals or organizations, though defining precisely what may or may not constitute BDS activity is subject to debate.
The report also analyzes economic measures that "differentiate" or might be seen as differentiating between (1) Israel in general and (2) entities linked with Israeli-developed areas and settlements (whose legality is questioned under international law). Such settlements are found in the West Bank, East Jerusalem, and Golan Heights—areas that Israel has controlled and administered since the 1967 Arab-Israeli war. Debate is ongoing in the United States and elsewhere about whether economic differentiation (such as with regard to product labeling policies) between Israel proper and Israeli settlements constitutes a form of BDS.
The report also discusses
These considerations present a number of policy questions for Congress and the Trump Administration. For more information, see CRS Report RL33476, Israel: Background and U.S. Relations, by [author name scrubbed].
The labeling of certain products imported from the West Bank is a subject with some connection to the debate regarding the BDS movement and economic differentiation. There appear to be some similarities between U.S. and European Union (EU) labeling laws and guidelines. Both jurisdictions call for the West Bank to be identified as the place of origin, but a November 2015 European Commission notice called for the labels for certain imports into the EU—Israel's largest trading partner—to provide additional information to EU consumers by further differentiating between products from Israeli settlements and from nonsettlement areas within the West Bank. This has fueled debate about whether the EU's guidelines might constitute, encourage, or foreshadow punitive economic measures against Israel.
In 2015 and 2016, President Barack Obama signed trade and customs legislation (P.L. 114-26 and P.L. 114-125, respectively) that opposed BDS-related measures against Israel. However, the Administration asserted—including in a presidential signing statement for P.L. 114-125—that certain provisions in the legislation that sought to treat "Israeli-controlled territories" beyond 1949-1967 armistice lines (including West Bank settlements) in the same manner as Israel itself were not in line with U.S. policy. Some legislation proposed in the 115th Congress contains similarly controversial language.
Participating in the BDS movement would not appear to place a U.S. organization in violation of existing federal antiboycott legislation, which targets organizations' participation in foreign boycotts. No foreign state has proclaimed that it participates in the BDS movement, and the movement does not have a secondary tier targeting companies that do business in or with Israel. If Members of Congress are inclined to propose legislation regarding BDS, they might consider using, as points of reference, legal and regulatory frameworks Congress and the executive branch have used to designate actors of concern under various rubrics having to do with trade and/or national security.
Opponents of the BDS movement or of economic differentiation have proposed the enactment of legislation that would prohibit the provision of public funding to U.S. corporations, academic institutions, groups, or individuals that engage in BDS activity. Some scholars and commentators have argued that such legislation would raise First Amendment concerns, while others have argued that such legislation would be consistent with the First Amendment. The constitutionality of a restriction on the availability of public funds would depend upon the particulars of the legislation at issue.
Israeli officials seek to prevent a boycott, divestment, and sanctions (BDS) movement against Israel from gaining strength. The BDS movement is a loose grouping of actors from various countries that advocate or engage in economic measures against Israel or Israel-related individuals or organizations. Defining precisely who may or may not constitute the BDS movement, or what may or may not constitute BDS activity, is subject to debate. Congress and the executive branch have taken actions to counter BDS measures, and Members of Congress debate how best to do so in light of various constitutional issues, as well as foreign policy questions regarding Israeli-developed settlements whose legality is uncertain under international law. The BDS movement that announced itself in 2005 calls for BDS as a means to change Israel's treatment of Palestinians. Because the movement appears by its own words to equate Zionism with "settler colonialism," observers generally conclude that the movement is anti-Zionist and seeks to delegitimize the specifically Jewish character of Israel. Debate is ongoing in the United States and elsewhere about whether economic differentiation between Israel in general and Israeli-controlled areas and settlements in the West Bank, East Jerusalem, and Golan Heights—areas that Israel has controlled and administered since the 1967 Arab-Israeli war—constitutes a form of BDS. Some international organizations—including the European Union and United Nations—have taken actions that either encourage states to differentiate between Israel and its settlements, or could make it easier for political or economic differentiation to take place. Israel's government and many of its leading political figures draw little or no distinction between economic measures targeting settlements and those targeting areas clearly inside of Israel. To date, BDS or differentiation measures have not significantly affected Israel's economy or relations with countries around the world. However, these measures exist within a larger context of international criticism of Israel on its dealings with Palestinians. Israel and many of its supporters regularly raise the possibility of Israel's political isolation, asserting that it could lead toward Israel's delegitimization. Israeli anti-BDS and anti-differentiation efforts in the United States apparently have included public diplomacy, outreach to allies within the Jewish diaspora, and countering activist groups in contexts where pro-BDS sentiment and criticism of settlements is particularly strong—including college campuses and social media. Pending legislation for the 116th Congress includes the Combatting BDS Act (CBDSA), which is part of a larger bill known as Strengthening America's Security in the Middle East Act of 2019 (S. 1). CBDSA would protect state and local government measures from federal preemption if they prohibit investment in or contracts with certain business or government entities engaging in economic measures targeting Israel or Israel-controlled territories. The Senate passed S. 1 in February 2019, and it is the subject of robust debate among Members of Congress. Some state and local governments have enacted or are considering measures to counteract BDS-related or differentiation measures. State and local economic sanctions meant to influence foreign politics ordinarilyDevelopments Involving International Organizations
Summary
Some Members of Congress have proposed legislation intended to preserve state and local anti-BDS or antidifferentiation measures.
This report provides information and analysis on the following issues that Congress and the Trump Administration currently face:Background on the BDS:
Congress and the Trump Administration currently face a number of policy questions on these issues. The BDS The BDS movement's activities differ from the longtime Arab League boycott against Israel (see "General Antiboycott Legislative Considerations" below) in part because the movement is comprised of various non-state actors. The movement exists within a larger context of Israel's complex economic and political relations with the world. For more information, see CRS Report RL33476, Israel: Background and U.S. Relations, by [author name scrubbed]Jim Zanotti.
The BDS movement is generally seen as a loose grouping of actors from various countries who advocate or engage in economic measures against Israel or Israel-related individuals or organizations, though defining preciselyAs mentioned above, defining precisely who may or may not constitute the BDS movement, or what may or may not constitute BDS activity, is subject to debate.1 Those who areprofess to be part of the movement or support it generally express sympathy for the Palestinian cause. No foreign government has acknowledged participating in the BDS movement, and the movement does not have a secondary tier targeting companies that do business in or with Israel.
In July 2005, various Palestinian civil society groups issued a "Call for BDS."2" and have since identified themselves as leading the BDS movement.3 These groups compared their grievances against Israel to the "struggle of South Africans against apartheid," and sought international support for "non-violent punitive measures"34 against Israel unless and until it changes its policies by (in the words of the "call")
Specifically, these Palestinian civil society groups called upon "international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel similar to those applied to South Africa in the apartheid era," and sought to have this audience pressure their "respective states to impose embargoes and sanctions against Israel."6
The stated goals of the movement to change Israel's treatment of Palestinians might, if achieved, have broader implications for the demographic and sociopolitical structure of Israel within its original 1948 borders.7 For example, some Israelis and their supporters voice concern that the movement's demands for an end to "occupation" of Arab lands and for promoting a "right of return" for Palestinian refugees could endanger Israel's identity as a Jewish state if the demands were interpreted as insisting that refugee populations be able to live and vote in Israel.
Israeli officials strenuously oppose the BDS movement, and statements by U.S. officials have consistently denounced any boycotts or other punitive economic measures targeting Israel. In their Senate confirmation hearings in January 2017, Secretary of State Rex Tillerson and Permanent Representative to the United Nations Nikki Haley stated their opposition to BDS-related measures.8
The Global BDS Movement does not support the two-state solution, recognize the right of the Jewish people to a state or distinguish between opposition to the existence of Israel itself and opposition to the occupation of the territory beyond the Green Line. Further, some of the Movement's supporters and leaders have trafficked in unacceptable anti-Semitic rhetoric.10
The BDS movement's website claims that the movement is "an inclusive, anti-racist human rights movement that is opposed on principle to all forms of discrimination, including anti-semitism and Islamophobia."11 Additionally, the website does not "call for either a 'one state solution' or a 'two state solution,' instead focusing on the "realization of basic rights and the implementation of international law."12
Israeli officials strenuously oppose the BDS movement, and statements by U.S. officials have consistently denounced any boycotts or other punitive economic measures targeting Israel.13
Debate is ongoing in the United States and elsewhere about whether economic "differentiation" (such as through product labeling policies) between (1) Israel proper and (2) Israeli-developeddifferentiation between Israel in general and Israeli-controlled areas and settlements in the West Bank, East Jerusalem, and Golan Heights constituteconstitutes a form of BDS. Some individuals and groups who proclaim the need to maintainsay that they support Israel's Jewish identity publicly oppose BDS measures against companies inside Israel, but voice support for economic measures that target the settlements or those doing business there.9 These individuals and groups sometimes cite international political and legal views calling into question the legitimacy of Israeli civilian communities and businesses in areas that Israel has controlled since the 1967 Arab-Israeli war.10
For example, some European countries' pension funds and companies have withdrawn investments or canceled contracts owing to concerns regarding connections with settlement activity, as distinguished from broader anti-Israel economic measures.11 Also, the leading councils of a number of U.S.-based Christian churches have either voted to divest from companies with settlement ties or have considered doing so.
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Developments Involving International Organizations On December 23, 2016, the U.N. Security Council adopted Resolution 2334 (or UNSCR 2334) by a vote of 14 in favor, zero against, and one abstention by the United States. The resolution, among other things:
Following the adoption of UNSCR 2334, Palestinian political leaders indicated that they will campaign "to require that other countries not just label products made in the settlements, but ban them."12 Claims by Palestinian activists and observers that the resolution provides legal and political backing for future boycotts were accompanied by expressions of consternation by Israeli observers.13 Although the Palestinian Authority (PA) supports boycotts of settlement products, it generally opposes wider boycotts of Israel.14 One analyst asserted that because UNSCR 2334 distinguishes between Israel and the settlements, the resolution "flies in the face of the demands of many BDS supporters, by explicitly advocating a two-state solution, including a secure (and legitimate) Israel."15 Other notable actions or developments from the past two years include the following:
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BDS or economic differentiation measures exist within a larger context of international criticism of Israel. Israel and many of its supporters, along with the international media, frequently raise the possibility of Israel's "isolation" (or, as some Israelis characterize it, "delegitimization").19 Some Israeli officials and outside observers have downplayed the concern, pointing to improvements in Israel's relations with a number of countries.20 Moreover, while some divestment from and boycotts of Israel or Israeli goods have taken place in recent years,21 such measures appear to have had little overall effect on Israel's economy. For example, one observer pointed to the tripling of foreign investment in Israel from 2005 to 2016 to claim that BDS or related economic measures against Israel have not been successful.22
In September 2015, the Israel-based company SodaStream closed its West Bank factory and relocated its operations inside Israel, though its CEO claimed that the BDS movement had only a "marginal" effect on these changes.23 Reportedly, all of SodaStream's West Bank-based Palestinian employees (between 500 and 600) were laid off because none could obtain permits from Israeli authorities to work at the new location.24 In May 2017, 74 of these employees received permits after persistent requests from the company.25 A common Israeli assertion is that BDS advocates or those who differentiate economically between Israel and West Bank settlements harm the employment situation of West Bank Palestinians.26 Many Palestinians and some international human rights groups counter this assertion by stating that Palestinians would be able to enjoy greater job prospects if Israeli settlements and movement/access/zoning restrictions in the West Bank did not constrain Palestinians' entrepreneurial capacities or their ability to attract international employers or outside investment.27 Some Israelis attempt to justify constraints on West Bank Palestinians by reference to concerns about security for Israeli citizens located in Israel proper and the settlements.
While widespread consensus across Israel's political spectrum favors countering economic and political measures targeting Israel, there is debate over the extent to which changes in Israeli policy toward Palestinians can improve international attitudes toward Israel. Right-of-center political figures within the government sometimes portray criticisms of Israeli actions as pretexts for more deep-seated prejudice against Israel and/or Jews, while left-of-center figures within the opposition periodically criticize government leaders for steps that may have the potential to undermine support for Israel in international fora.28
Israeli political leaders routinely denounce BDS, and Israel's government has reportedly allocated about $26 million in annual funding to the Ministry of Strategic Affairs aimed at countering BDS-related activities.29 Such countermeasures apparently include assertive public diplomacy, outreach to enlist anti-BDS allies within the Jewish diaspora, and digital initiatives like gathering intelligence on activist groups.30 Some current and former Israeli diplomats were cited in 2016 as saying that robust Israeli efforts to counter BDS may backfire by providing the movement with free publicity and by possibly alienating would-be diaspora supporters—including in the United States—via polarizing rhetoric.31 Some private individuals and organizations have raised funds and public awareness in an effort to counter pro-BDS sentiment in the United States (such as on college campuses and social media websites) and elsewhere,32 and Israel and a number of organizations held an anti-BDS summit in May 2016 at the U.N. General Assembly.33
In March 2017, Israel's Knesset (parliament) passed a law that allows the government to block entry into the country of nonresidents who publicly call for a boycott against Israel or Israelis in West Bank settlements, or are associated with organizations that do so.34 Some of the law's opponents warn of negative consequences to Israel if it keeps out those who assert that they support its interests by means of their opposition to settlements.35
Debates regarding policies that govern the labeling of consumer products imported into the European Union and United States from Israeli settlements, as well as the broader implications of such policies, have become part of the overall policy discussion regarding BDS and differentiation.
Given that the 28-country European Union (EU) is Israel's largest trading partner,36 Israeli officials routinely express concern regarding prospects of reduced Israel-EU economic cooperation as a consequence of Palestinian-related developments. Dating back even to the previous decade, some EU member states have taken a number of steps to "differentiate between Israel and its settlements project in the day-to-day conduct of bilateral relations."37 The EU does not view such "differentiation" measures as part of or supporting the BDS movement.
On November 11, 2015, the European Commission issued a notice setting forth guidelines regarding labeling of certain products38 imported into EU countries from areas that Israel captured in the 1967 Arab-Israeli war, along with an accompanying factsheet.39 The labeling notice provides that products in question coming from Israeli settlements in the West Bank (including East Jerusalem) or Golan Heights should be clearly differentiated from products coming from Israel and those produced (generally by Palestinian-run businesses) outside of settlements in the West Bank, Golan Heights, and Gaza Strip. According to one media report, "EU diplomats say there are no serious plans for additional measures" and that the EU "insists the move is purely technical, applying the EU policy that settlements are illegal."40 The factsheet accompanying the notice stated
The EU does not support any form of boycott or sanctions against Israel. The EU does not intend to impose any boycott on Israeli exports from the settlements. The Commission will only help Member States to apply already existing EU legislation. The indication of origin will give consumers the possibility to make an informed choice.
The Israeli Foreign Ministry responded to the European Commission notice with a statement that read in part, "We regret that the EU has chosen, for political reasons, to take such an exceptional and discriminatory step, inspired by the boycott movement."41 After the move, Israel suspended contact with several EU bodies until a February 2016 conversation between Prime Minister Netanyahu and the High Representative of the EU for Foreign Affairs, Federica Mogherini.42 Palestine Liberation Organization Secretary General Saeb Erekat called the European Commission notice "a significant move toward a total boycott of Israeli settlements, which are built illegally on occupied Palestinian lands."43 Some Israelis from the left of the country's political spectrum reportedly signed a petition welcoming the move.44
Some Members of Congress viewed the implementation of a policy of different labeling for goods from Israeli settlements in negative terms. Two days before the European Commission issued its notice, 36 Senators sent a letter to Mogherini urging her not to adopt the labeling guidelines.45
A State Department deputy spokesperson in the Obama Administration reacted to the guidelines the day after their issuance. He said that the Administration did "not believe that [EU] labeling [of] the origin of products is equivalent to a boycott."46 He further said that U.S. laws for Israeli settlement exports are somewhat similar in requiring them to be marked as products of the West Bank, but that the U.S. laws do not require further differentiation between products from and not from settlements.47
The economic impact of the EU guidelines has been somewhat muted. Some attribute that at least partly to decisions by some EU member states—facing Israeli government pressure—not to implement the guidelines in a robust way.48 One media report citing EU officials emphasized that exports to the EU from within Israel's "internationally recognized borders" still receive preferential customs treatment, and that product labeling analogous to what the EU prescribed has taken place in the United Kingdom (UK) for a few years with "no negative economic effect."49 According to one media report, less than 1% of Israel's annual trade with the EU has been affected by the guidelines.50
Debate has persisted about the implications of EU differentiation measures and proposals.51 An October 2016 report from a European think tank asserted that "One year on, progress on the [EU] application of differentiation has been slow, but important. EU consensus around differentiation has broadened, and European diplomats have taken concrete steps to own and defend it."52 The report also acknowledged the "genuine threat of a resurgence of anti-Semitism" while making the case that differentiation is not a discriminatory measure.53 By contrast, one Israeli journalist characterized the EU labeling system as a "deceptive nascent phase in a slippery slope campaign to impose a full BDS program on Israel."54
Given tensions between the EU and Israel over Israeli settlement policy, some may fear that the EU could seek to review and possibly expand differentiation measures.55 According to one early 2017 news report, some EU diplomats have called for the EU to ensure full implementation of the labeling guidelines. At the same time, this press report noted that EU foreign policy chief Mogherini has not been enthusiastic about the labeling guidelines and appears to have little appetite for further differentiation measures.56
Under U.S. law, eligible articles imported into the United States from Israel, the West Bank, or the Gaza Strip are covered under the 1985 U.S.-Israel Free Trade Agreement (IFTA).57 In January 2016, the Customs and Border Protection (CBP) Agency (within the Homeland Security Department) restated and clarified country of origin marking (i.e., labeling) requirements, based on previous executive branch guidance, as follows:
goods produced in the West Bank or Gaza Strip shall be marked as originating from ''West Bank,'' ''Gaza,'' ''Gaza Strip,'' ''West Bank/Gaza,'' ''West Bank/Gaza Strip,'' ''West Bank and Gaza,'' or ''West Bank and Gaza Strip.'' It is not acceptable to mark the aforementioned goods with the words ''Israel,'' ''Made in Israel,'' ''Occupied Territories-Israel,'' or any variation thereof. Goods that are erroneously marked as products of Israel will be subject to an enforcement action carried out by U.S. Customs and Border Protection.58
A few days after CBP issued these requirements, one commentator wrote: "It is unknown to what degree settlement exporters (and importers of settlement goods) comply with U.S. regulations. Anecdotal evidence indicates that to a great extent they do not, raising questions about the need for stronger enforcement and penalties for non-compliance."59
In February 2016, proposed legislation was introduced in the House (H.R. 4555 and H.R. 4503) and Senate (S. 2474) that would have permitted products exported to the United States from West Bank settlements to be labeled "Made in Israel." None of these bills were enacted during the 114th Congress.
For additional analysis of enacted and proposed legislation discussed in this section, see "General Antiboycott Legislative Considerations," "Potential First Amendment Issues Facing Laws Intended to Deter BDS Activity," and "Federal Preemption Questions: Commerce Clause and Foreign Affairs" below.
A number of U.S. policymakers and lawmakers have stated opposition to or taken action against the BDS movement. Some Members of Congress argue that the BDS movement is discriminatory and are seeking legislative options to limit its influence. See Table 1 below for a list of proposed anti-BDS or antidifferentiation legislation under congressional consideration.
Some international organizations have taken actions that either encourage states to differentiate between Israel and its settlements, or could make it easier for political or economic differentiation to take place. On November 11, 2015, the European Commission issued a notice setting forth guidelines regarding labeling of certain products imported into European Union countries from areas that Israel captured in the 1967 Arab-Israeli war, along with an accompanying factsheet.17 The labeling notice provides that products in question coming from Israeli settlements in the West Bank (including East Jerusalem) or Golan Heights should be clearly differentiated from products coming from Israel and those produced (generally by Palestinian-run businesses) outside of settlements in the West Bank, Golan Heights, and Gaza Strip. The factsheet accompanying the notice stated The EU does not support any form of boycott or sanctions against Israel. The EU does not intend to impose any boycott on Israeli exports from the settlements. The Commission will only help Member States to apply already existing EU legislation. The indication of origin will give consumers the possibility to make an informed choice. Israel and the United States (under the Obama Administration) had varying responses. The Israeli Foreign Ministry stated, among other things, "We regret that the EU has chosen, for political reasons, to take such an exceptional and discriminatory step, inspired by the boycott movement."18 The Obama Administration's State Department deputy spokesperson said that the Administration did "not believe that [EU] labeling [of] the origin of products is equivalent to a boycott."19 He further said that U.S. laws for Israeli settlement exports are somewhat similar in requiring them to be marked as products of the West Bank, but that the U.S. laws and regulations do not require further differentiation between products from and not from settlements.20 France adopted the European Commission's product labeling guidelines in 2016, and a case challenging their enforcement came before the European Union Court of Justice (CJEU).21 In November 2019, the CJEU ruled that "foodstuffs originating in territories occupied by the State of Israel must bear the indication of their territory of origin, accompanied, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, by the indication of that provenance."22 The spokesperson from the EU's embassy to Israel reiterated that the EU rejects "any form of boycott or sanctions against Israel."23 However, the State Department spokesperson stated that the United States is "deeply concerned" by the EU labeling requirement identified in the CJEU ruling, saying that circumstances surrounding the requirement suggest "anti-Israel bias," and that the requirement "serves only to encourage, facilitate, and promote" BDS measures against Israel.24 According to a study of the EU's enforcement of the 2015 guidelines to date, "Only 10% of the settlement wines on sale in the EU have correct or partially correct origin indication in line with EU rules, i.e. 'Product of West Bank/Golan Heights (Israeli settlement).'"25 In March 2016, the U.N. Human Rights Council (UNHRC) adopted a resolution that, among other things, requested that the U.N. Office of the High Commissioner for Human Rights (OHCHR) produce a database of all business enterprises that have "directly and indirectly, enabled, facilitated and profited from the construction and growth of the (Israeli) settlements."26 This action was denounced by Israel as a "blacklist" and also vehemently criticized by the United States.27 The United States withdrew from the Council in July 2018, citing as a key grievance what Secretary of State Michael Pompeo and then-Permanent Representative to the United Nations Nikki Haley characterized as the Council's bias against Israel.28 The Council's 2016 resolution anticipated that OHCHR would share the requested database with the Council by 2017, but it has not done so to date. In March 2018, OHCHR reported to the Council that it was still gathering information for the list.29 In March 2019, OHCHR wrote to the Council that it needed more time "given the novelty of the mandate and its legal, methodological and factual complexity," fueling debate over whether OHCHR has delayed releasing the database due to political pressure from Israel and its supporters.30 On December 23, 2016, the U.N. Security Council adopted Resolution 2334 (or UNSCR 2334) by a vote of 14 in favor, zero against, and one abstention by the United States. The resolution, among other things Following the adoption of UNSCR 2334, Palestinian political leaders indicated that they would campaign "to require that other countries not just label products made in the settlements, but ban them."31 Since 2018, parliaments in Ireland and Chile have taken legislative steps toward measures—though not enacted to date—that would ban or discourage imports from West Bank settlements.32 Additionally, in 2019, a Canadian court ruled that its government's labeling of settlement products as Israeli was improper, leading the government to appeal the ruling.33 BDS or economic differentiation measures exist within a larger context of international criticism of Israel on its dealings with Palestinians. Israel and many of its supporters regularly raise the possibility of Israel's political isolation, asserting that it could lead toward Israel's delegitimization.34 The international debate around BDS has grown more prominent since the latest round of U.S.-mediated Israeli-Palestinian talks ended unsuccessfully in 2014. It takes place amid general skepticism about the near-term possibility that diplomacy can end large-scale Israeli control over Palestinians in the West Bank and Gaza Strip. Additionally, in July 2018, the Israeli Knesset (parliament) passed a Basic Law defining Israel as the national homeland of the Jewish people. The law's enactment triggered domestic and international debate about the rights of Israel's Arab citizens, who largely identify as Palestinians and comprise about 20% of Israel's population.35 Some Israeli officials and observers have downplayed the threat of isolation, pointing to improvements in Israel's relations with a number of countries.36 Moreover, while some institutional investors (including a few Western government funds and U.S.-based Christian churches) and private companies have withdrawn investments from or canceled contracts in Israeli entities,37 apparently owing largely to settlement-related concerns, such measures appear to have had little overall effect on Israel's economy. To illustrate, a July 2019 media report said that foreign direct investment in Israel is at an all-time high, while explaining Israel's economy is well-suited to resist boycotts because it is less dependent on exports of commodities, which can be sourced elsewhere, than on sales of intellectual property, like software, and business-to-business products, against which it is harder to mobilize consumers.38 In a 2018 report that contained data and findings largely in line with the above explanation, two analysts concluded that Israel could be vulnerable to boycotts in some sectors (including tourism, some services and agricultural products, non-complex manufacturing, and academia), but that such measures would probably have more of a cultural or psychological impact than an economic one.39 Israelis hold varying views about the best way to counter BDS and differentiation, reflecting the fact that some have concerns about international isolation, but the country has yet to experience major economic setbacks.40 The SodaStream Case and Palestinian Employment In 2015, the private Israeli company SodaStream (acquired by PepsiCo in 2018) closed its West Bank factory and relocated its operations inside Israel, though its CEO claimed that the BDS movement had only a "marginal" effect on these changes.41 Reportedly, all of SodaStream's West Bank-based Palestinian employees (between 500 and 600) were laid off because none could obtain permits from Israeli authorities to work at the new location.42 In May 2017, 74 of these employees received permits after persistent requests from the company.43 Israeli observers have routinely asserted that the SodaStream case demonstrates that BDS advocates or those who differentiate economically between Israel and West Bank settlements harm Palestinians who work for Israeli employers based in settlement areas.44 Many Palestinians and some international human rights groups counter that Palestinians would be able to enjoy greater job prospects if Israeli settlements and movement/access/zoning restrictions in the West Bank did not constrain Palestinians' entrepreneurial capacities or their ability to attract international employers or outside investment.45 Some Israelis defend constraints on West Bank Palestinians by citing concerns about security for Israeli citizens located in Israel proper and the settlements. Additionally, In March 2017, the Knesset passed a law that allows the government to block entry into the country of nonresidents who publicly call for a boycott against Israel or Israelis in West Bank settlements, or are associated with organizations that do so.49 Since then, this law has been applied in some prominent cases, such as A case involving the online housing rental service Airbnb (a U.S.-based company) has attracted significant attention in Israel and beyond. In November 2018, Airbnb announced its intent to no longer list properties connected with Jewish West Bank settlements. Although Airbnb asserted that it did not identify with the BDS movement, Vice President Mike Pence and some other U.S. and Israeli figures criticized the company's decision and linked it with BDS.54 After the announcement triggered several lawsuits against Airbnb in the United States and Israel alleging unfair discrimination, the company reversed its decision in April 2019 and pledged to donate all its profits from the settlements to charity.55 For additional analysis of enacted and proposed legislation discussed in this section, see "General Antiboycott Legislative Considerations," "First Amendment Questions," and "Federal Preemption Questions: Commerce Clause and Foreign Affairs" below. Some Members of Congress argue that the BDS movement is discriminatory and have sought legislative options to limit its influence. Other Members have voiced various reservations about anti-BDS legislation. Some of these concerns focus on possible constraints to domestic civil liberties, particularly freedom of speech and political action. Others are that legislation might apply not just to BDS economic actions against Israel, but also differentiation measures against Israeli West Bank settlements. The following are summaries of relevant anti-BDS or anti-differentiation legislation, proposed or enacted.In June 2015, the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (P.L. 114-26) was enacted into law. This law provided trade promotion authority (TPA)6014 For example, the advocacy group Americans for Peace Now (a sister organization to Peace Now in Israel) rejects "efforts to conflate Israel and the settlements" and recognizes "the legitimacy and potential value of activism and boycotts that squarely target settlements and the [Israeli] occupation [of the West Bank]."15 However, Israel's government and many of its leading political figures draw little or no distinction between economic measures targeting settlements and those targeting areas clearly inside of Israel.16
Developments Involving International Organizations
During and after congressional deliberations, public debate regarding this trade negotiating objective focused on whether EU "differentiation" between commerce with Israeli settlements and commerce with Israel constitutes or promotes BDS-related activity.6157 The State Department spokesperson's office weighed in on the debate with a statement following the enactment of P.L. 114-26 that included the following passage:
The United States has worked in the three decades since signing the U.S.-Israel Free Trade Agreement – our first such agreement with any country – to grow trade and investment ties exponentially with Israel. The United States government has also strongly opposed boycotts, divestment campaigns, and sanctions targeting the State of Israel, and will continue to do so.
However, by conflating Israel and "Israeli-controlled territories," a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity. Every U.S. administration since 1967 – Democrat and Republican alike – has opposed Israeli settlement activity beyond the 1967 lines. This [Obama] Administration is no different. The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.62
In February 2016, President Obama signed the Trade Facilitation and Trade Enforcement Act of 2015 (the Customs Act, P.L. 114-125) into law. The act contains a provision similar to the one in P.L. 114-26 that opposes punitive economic measures (such as measures advocated by a nongovernmental boycott, divestment, and sanctions [BDS] movement) against businesses in Israel or Israeli-controlled territories. However, the Obama Administration asserted—including in a presidential signing statement echoing the Administration's response to P.L. 114-26—that certain provisions in P.L. 114-125 that seek to treat "Israeli-controlled territories" beyond 1949-1967 armistice lines (including West Bank settlements) in the same manner as Israel itself are not in line with U.S. policy.63
In the 115th Congress, two Senators and four Representatives introduced the Israel Anti-Boycott Act (IABA, S. 720/H.R. 1697). IABA's main provisions would have applied the legal framework for countering the Arab League boycott against Israel that was in the Export Administration Act of 1979 (EAA) (see "General Antiboycott Legislative Considerations" below) and is also in the Anti-Boycott Act of 2018 (P.L. 115-232, div. A, title XVII, subtitle B, part II) to international governmental organizations such as the United Nations and European Union. The findings in Section 2 of IABA likened the U.N. Human Rights Council's March 2016 resolution, which (as described above) requested a database of companies doing business in West Bank settlements, to the Arab League boycott.
Some groups, including the American Civil Liberties Union (ACLU), claimed that certain provisions of IABA would have unconstitutionally imposed criminal penalties on free speech (see "First Amendment Questions").60 These IABA provisions focused on preventing U.S. businesses from furnishing information to foreign governments or international organizations if doing so could support restrictive trade practices against Israel.
In response to public debate, Senators Rob Portman and Ben Cardin publicized a revised version of S. 720 in March 2018 that apparently sought to narrow the bill's restrictions in such a way that it would target official commercial activity rather than individual political expression. In a press release, Senator Cardin's office said
After months of a healthy dialogue with the public and consultations with outside groups, lawmakers and other legal experts, Cardin and Portman have worked to address concerns that have arisen regarding the legislation, which protects U.S. business from being pressured into complying with unsanctioned foreign boycotts by extending provisions of the 40-year-old Export Administration Act to activity by international governmental organizations.61
Additionally, Section 6(b) of the revised version of S. 720 contained language saying that the bill was not to be construed to alter or establish new U.S. policy "concerning final status issues associated with the Arab-Israeli conflict, including border delineation, that can only be resolved through direct negotiations between the parties."
The ACLU said that the revised version of S. 720 was an improvement upon the original, but maintained that it was still unconstitutional. A March 2018 ACLU letter read, "Whereas the EAA was meant to protect American companies from economic coercion by foreign governments, S. 720 would punish Americans who participate in constitutionally protected political boycotts."62
Separately, in June 2018, the House Foreign Affairs Committee ordered a new version of H.R. 1697 to be reported as an amendment in the nature of a substitute. In seeking to restrict official commercial activity that complies with restrictive trade practices from international organizations, the new version of H.R. 1697 largely mirrored the revised version of S. 720, but H.R. 1697 sought to accomplish this purpose by requiring the President to issue regulations on the subject rather than directly amending the EAA. The ACLU also opposed this version of IABA.63
No version of IABA came to a House or Senate vote in the 115th Congress, and no version has been introduced during the 116th Congress.
116th Congress Proposed Combatting BDS ActThe Combatting BDS Act (CBDSA) was first introduced during the 115th Congress (as S. 170/H.R. 2856), but did not go through a committee approval process. In the 116th Congress, CBDSA was introduced as part of a larger bill known as Strengthening America's Security in the Middle East Act of 2019 (S. 1). S. 1 passed the Senate in February 2019 in a 77-23 vote. A counterpart bill (H.R. 336) was introduced in the House shortly after S. 1 passed the Senate. CBDSA would protect state and local government measures from federal preemption if they prohibit investment in or contracts with certain business or government entities engaging in economic measures targeting Israel "or persons doing business in Israel or in Israeli-controlled territories for purposes of coercing political action by, or imposing policy positions on, the Government of Israel."
Although CBDSA would not protect state or local measures from free speech challenges, several Members of Congress have objected to it,64 presumably because it may make it easier for states to enact constitutionally questionable anti-BDS or anti-differentiation measures. These objections have been part of a robust public debate on CBDSA.65
CBDSA also could face objections based on claims that the executive branch has exclusive constitutional authority to conduct foreign relations (see "Federal Preemption Questions: Commerce Clause and Foreign Affairs" below), as raised in President George W. Bush's signing statement related to nonpreemption language in the Sudan Accountability and Divestment Act of 2007 (P.L. 110-174).66 Another law with similar nonpreemption language is the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (P.L. 111-195).
House Resolution 246In July 2019, the House passed H.Res. 246 ("Opposing efforts to delegitimize the State of Israel and the Global Boycott, Divestment, and Sanctions Movement targeting Israel") by a vote of 398-17, with five voting present. The non-binding resolution opposed the BDS movement and efforts to delegitimize Israel. It also specified its opposition to "efforts to target United States companies that are engaged in commercial activities that are legal under United States law," a statement that could be construed as opposing economic measures against companies doing business with West Bank settlements.67 The resolution also reaffirmed strong support for direct Israeli-Palestinian negotiations and a two-state solution to the Israeli-Palestinian conflict. In the same month, three Representatives introduced a draft resolution (H.Res. 496) that would affirm Americans' First Amendment rights to participate in boycotts "in pursuit of civil and human rights at home and abroad" and would oppose "unconstitutional legislative efforts to limit the use of boycotts."
State-level MeasuresSince 2015, various U.S. states have enacted or proposed anti-BDS or anti-differentiation legislation, or promulgated similar executive orders. Some measures explicitly apply to situations involving both Israel and "Israeli-controlled territories,"68 while the territorial applicability of other measures are less explicit. A number of these state measures have been challenged via lawsuits on First Amendment grounds (see "First Amendment Questions" below).
State-level measures come under two broad categories:
Additionally, at various times, governors of all 50 U.S. states and the mayor of Washington, DC, have reportedly signed onto an initiative sponsored by the American Jewish Committee (AJC) entitled "Governors United Against BDS."71
General Antiboycott Legislative Considerations72|
Bill Number |
Name and Description |
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Israel Anti-Boycott Act. A bill to amend the Export Administration Act of 1979 to include in the prohibitions on boycotts against allies of the United States boycotts fostered by international governmental organizations against Israel, and to add opposition to economic measures taken against Israel as an additional possible basis for the President, in consultation with the House Financial Services and Senate Banking committees, to make a national interest determination to deny applications for credit at the Export-Import Bank for nonfinancial or noncommercial reasons. |
|
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Israel Anti-Boycott Act. Substantially similar to S. 720. |
|
|
Combating BDS Act of 2017. To provide for nonpreemption of measures by State and local governments to divest from entities that engage in commerce-related or investment-related boycott, divestment, or sanctions activities targeting Israel (including persons doing business in Israel or Israeli-controlled territories), and for other purposes. |
|
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Substantially similar to S. 170. |
Since 2015, various U.S. states have also enacted or proposed anti-BDS or antidifferentiation legislation. Some legislation explicitly applies to situations involving both Israel and "Israeli-controlled territories,"64 while observers speculate about the territorial applicability of other legislation that is less explicit.65
Examples of enacted legislation on the state level come under two broad categories:
Additionally, as of May 2017, all 50 U.S. governors and the mayor of Washington, DC, had reportedly signed onto an initiative sponsored by the American Jewish Committee (AJC) entitled "Governors Against BDS."69
The existing U.S. antiboycott regime was largely crafted to address the Arab League (League of Arab States) boycott of Israel. Members might consider the extent to which the existing regime could be applied or modified with respect to efforts to address the BDS movement.
The Arab League boycott has three tiers. The primary boycott prohibits citizens of an Arab League member state from buying from, selling to, or entering into a business contract with either the Israeli government or an Israeli citizen. The secondary boycott extends the primary boycott to any entity worldwide that does business in Israel. The tertiary boycott prohibits Arab League members and their nationals from doing business with a company that deals with companies that have been blacklisted by the Arab League.
In the late 1970s, the United States passed antiboycott legislation establishing a set of civil and criminal penalties to discourage U.S. individuals from cooperating with the Arab League boycott.7173 U.S. antiboycott efforts are targeted at the secondary and tertiary boycotts. U.S. legislation was enacted to "encourage, and in specified cases, require U.S. firms to refuse to participate in foreign boycotts that the United States does not sanction. They have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy."7274 According to the Department of Commerce, in FY2016, 549 requests by Arab League members FY2018, 178 requests to participate in the boycott were reported to U.S. officials. The majority (32594 requests) were from the United Arab Emirates, followed by Qatar (73) and Iraq (54).73Iraq (21) and Qatar (16).75
Participating in the BDS movement would not appear to place a U.S. organization in violation of existing federal antiboycott legislation, which targets organizations' participation in foreign boycotts. No foreign state has proclaimed that it participates in the BDS movement, and the movement does not have a secondary tier targeting companies that do business in or with Israel.
Some Members of Congress have introduced legislation seeking to extend existing antiboycott penalties to BDS-related activity. If enacted, the Israel Anti-Boycott Act (S. 720, H.R. 1697—see Table 1) would amend.
As mentioned above, the Israel Anti-Boycott Act introduced in the 115th Congress (S. 720/H.R. 1697) would have applied federal antiboycott legislation to also apply to boycotts fostered by international governmental organizations against Israel. Members might also consider legal and regulatory frameworks that Congress and the executive branch have used to designate actors of concern under various rubrics having to do with trade and/or national security. One option would be to create a dual system under which Congress could explicitly designate foreign BDS "offenders" (either individuals or entities) through legislation, while also authorizing executive branch agencies (including the State, Treasury, or Commerce Departments) to designate foreign "offenders" via case-by-case determinations based on a number of criteria. Such criteria could include market behavior and its impact or potential impact on Israel, evidence of intent, coordination with other parties, etc. Congress could require the executive branch to justify its designations/nondesignations through reports, either as a matter of course or upon congressional or congressional leadership request. Such congressional designation measures, however, could raise bill of attainder concerns under the Constitution, as well as definitional concerns in identifying BDS participation.74
As discussed above, opponents of the BDS movement have proposed the enactment of legislation, either at the federal or U.S. state level, that would limit or deter participation in BDS-related activities and/or economic "differentiation" (between Israel and Israeli settlements).76 These proposals have taken a number of forms. For instance, an early iteration of congressional legislation would have restricted the availability of federal funds to entities, including universities, which engaged in BDS activity.77 More recently, some states have enacted laws that prohibit government contractors from boycotting or discriminating against countries including Israel.78 Other states have taken action to restrict the investment of state funds in entities that engage in BDS activity.79 Under these restrictions, state pension funds, for example, may be required to divest from companies engaged in BDS activity.
Some scholars and commentators have argued that legislation and other government action designed to deter or eliminate BDS activity potentially would raise First Amendment concerns,80 while others have argued that such action would be consistent with the First Amendment or would not implicate the First Amendment at all.81 This section discusses key concepts and precedents that might factor into a reviewing court's analysis of the constitutionality of certain proposed and enacted laws and executive actions related to BDS activity.
In sum, the degree to which a restriction on BDS activity would implicate the First Amendment and whether, even if it did, it would nonetheless be permissible turns on a number of unsettled questions. The first and most obvious is whether the act of refusing to deal with Israel or Israeli-affiliated entities is expressive conduct protected by the First Amendment. Important to this analysis may be whether those participating in BDS activity are attempting to make a political statement or are attempting to gain an economic advantage. Another relevant factor may be whether the government, in enacting the restriction, may be viewed by a reviewing court to be suppressing a disfavored message or, instead, to be regulating discriminatory conduct. Answers to these questions would likely turn on the text of the specific statutes at issue, as well as a number of other factors that may be difficult to predict.
The First Amendment to the Constitution, incorporated against the states by the Fourteenth Amendment,82 provides that "Congress shall make no law ... abridging the freedom of speech ...."83 According to the Supreme Court, "the First Amendment [generally] means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."84 The Freedom of Speech Clause refers specifically to the freedom of speech.85 Some nonverbal conduct, however, may also convey a message and be entitled to protection under the First Amendment.86
The Supreme Court has found that the government generally has more leeway to regulate expressive conduct than it has to regulate pure speech.87 Nonetheless, there are limits on the government's ability to regulate conduct protected by the First Amendment.88 The government normally may not, for example, regulate conduct because of its expressive elements.89
The Supreme Court has generally interpreted refusals to do business, including through boycotts,90 as conduct that may be permissibly regulated.91 Boycotts aimed at gaining an economic advantage for the boycotting parties are generally considered to be within the government's power to regulate and even to prohibit.92 However, boycotts aimed at achieving something other than an economic advantage, particularly when the motivation is political or social in nature, may have more of an expressive element, which, according to Supreme Court precedent, could qualify for First Amendment protection.93
No definitive precedent exists examining whether BDS activity is protected by the First Amendment.94 Scholars who have written and commented on the issue disagree,95 leading one commentator to describe the question as a "thorny" one and others to acknowledge that the answer to the question may not be straightforward.96 Participants and advocates of the BDS movement characterize their activity as speech protected by the First Amendment.97
To support this argument, BDS supporters may point to the Court's decision in NAACP v. Claiborne Hardware.98 In that case, the Court held that an economic boycott of white-owned businesses by black citizens was entitled to First Amendment protection. The Court distinguished the situation from typical boycotts intended to secure an economic advantage for a particular business interest. While recognizing the government had considerable power to restrict economically motivated boycotts, the Court in Claiborne Hardware held that the "right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself."99
It may be argued that, like the Claiborne Hardware boycotters, BDS participants' intent is to cause economic harm, but their aim is not to destroy competition.100 Instead, BDS proponents' stated aim is to place pressure on Israel to make desired policy changes.101 Moreover, the BDS participants might claim that their activity is nonviolent and politically motivated, designed to force governmental change.102 Following that reasoning, it might be argued that their activity should receive a similar degree of protection under the First Amendment as the boycott at issue in Claiborne Hardware.
There are, however, characteristics that distinguish the protected boycott in Claiborne Hardware from the BDS movement, which might factor into a reviewing court's analysis as to whether BDS activity is similarly protected by the Constitution.103 For instance, the Claiborne Hardware boycott involved an effort to influence the policies of domestic local governments and to vindicate rights guaranteed by the U.S. Constitution.104 Matters of foreign policy were not examined by the Court.105 The BDS movement, on the other hand, seeks to influence the conduct of a foreign government, Israel, perhaps in contravention of the foreign policy of the United States.106 Courts generally provide broad deference to Congress and to the executive branch in matters of foreign affairs.107 It remains unclear whether that deference might affect a court's judgment regarding the degree to which the government may permissibly seek to deter BDS activity.
There is another important difference between Claiborne Hardware and regulation of BDS activity. In Claiborne Hardware, the Court explicitly noted that it was not deciding that "a narrowly tailored statute designed to prohibit certain forms of anticompetitive conduct or certain types of secondary pressure may restrict protected First Amendment activity."108 The Claiborne Hardware Court left open the question of whether a statutory boycott restriction tailored by a legislature to balance legitimate competing interests might survive constitutional review even if it burdened protected speech.109
At least one commentator has argued that a Supreme Court decision issued the same year as Claiborne Hardware provides support for the argument that BDS activity is not protected by the Constitution.110 In International Longshoremen's Ass'n, v. Allied Intern., Inc., the Court upheld a statutory prohibition on certain union boycotts as applied to a politically motivated boycott against a foreign government's policies.111 At issue in the case was a union's decision, in the wake of the Soviet Union's invasion of Afghanistan, to stop handling Russian products. A U.S. importer of Russian products challenged the union's actions as violating the National Labor Relations Act, which prohibits "unions from inducing employees to refuse to handle goods with the object of forcing any person to cease doing business with any person."112 In reviewing the case, the Supreme Court considered whether, among other things, the boycott was protected by the First Amendment.
The Court held that the union's boycott was prohibited by federal law and the statutory prohibition did not raise First Amendment concerns.113 With regard to the union's argument that the boycott was protected by the First Amendment, the Court observed that it had previously held that secondary picketing by union members was not protected activity under the First Amendment.114 The Court went on to conclude that it was "even clearer" that the boycott at issue was entitled to "still less consideration under the First Amendment" because such conduct was "designed not to communicate but to coerce."115
The Court's opinion in International Longshoremen's Ass'n, however, may not provide precise support for arguments regarding the permissibility of statutory restrictions on BDS activity. For example, International Longshoremen's Ass'n dealt with restrictions on union boycotting activity.116 Such restrictions traditionally have been viewed by the Court (including in Claiborne Hardware) as permissible "as part of 'Congress' striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife.'"117 BDS activity does not primarily involve activities by unions or collective bargaining organizations, which may limit the applicability of Court jurisprudence regarding the First Amendment implications of government restrictions on union-led boycotts.
Some commentators also point to federal statutes and executive orders that have restricted the ability of U.S. persons to participate in boycotts sponsored or enforced by a foreign government, to argue that BDS activity may permissibly be restricted.118 For example, the Export Administration Act of 1979 imposed criminal penalties on U.S. persons engaged in "any boycott fostered or imposed by a foreign country against a country which is friendly to the United States."119 The EAA regulations prohibited, among other things, U.S. persons from responding to questionnaires sent by the Arab League to aid those countries in their boycott against Israel.120 These regulations were unsuccessfully challenged on First Amendment grounds by some companies who wished to respond to questionnaires that they received.121
The U.S. Court of Appeals for the Seventh Circuit upheld the restriction on answering the Arab League questionnaire, and found that the restriction was a constitutionally valid regulation of commercial speech.122 Commercial speech regulations are reviewed under a more lenient standard than regulations of political speech.123 The plaintiffs in these cases had attempted to argue that their decision to answer the questionnaire was political speech, warranting full First Amendment protection because "the decision to boycott Israel is itself a political decision," and, therefore, "their answers to the questionnaires should be viewed as attempts to influence political decision making."124 The Seventh Circuit disagreed, finding instead that "the appellants do not seek to answer the questionnaire in order to influence the Arabs' decision to conduct or enforce a trade boycott with Israel.... They wish through their answers only to show that the boycott's sanctions should not be applied to them, because they have not violated its terms."125 In other words, they sought to protect their economic interests and not to engage in political arguments. The Seventh Circuit, therefore, held their speech was commercial and affirmed the lower court's finding that the regulations were properly tailored to withstand scrutiny.126
BDS activity may be distinguishable from the activity prohibited and regulated by the EAA. The EAA prohibited participation in boycotts enforced by foreign governments.127 BDS activity is not enforced by a foreign government.128 Furthermore, unlike the companies that challenged the EAA regulations, BDS participants generally do not appear to be seeking to protect their own economic interests, rather, they appear to seek to pressure Israel to change its policies.129 It might, therefore, be argued that BDS activity is not commercial speech, but political speech, and regulations of political speech generally are scrutinized more closely than commercial speech restrictions. For these reasons, the case law upholding regulations promulgated under the EAA might not provide directly analogous precedent to regulations of BDS activity. However, the regulations at issue in the Seventh Circuit case applied unambiguously to speech.130 They prohibit the communication of information from one party to another via speech.131 The case did not examine whether the activity of boycotting a foreign nation for political or economic reasons was speech protected by the Constitution or the degree to which that activity might be restricted even if it is protected speech.
The cases discussed above indicate that politically motivated boycotts generally may receive some degree of constitutional protection. However, the government may have greater leeway to regulate boycotts, even politically motivated boycotts, than it has to regulate pure speech, particularly where the boycotters have the power to coerce neutral third parties to comply with a boycott. Whether a particular statute or regulation burdening BDS activity would withstand scrutiny would likely turn on a number of factors, which may be difficult to predict, but could include the type of regulation at issue, the actors (i.e., would-be boycotters) to which it applied, and whether it was viewed by a reviewing court to be aimed at suppressing a particular message.
An early congressional proposal to deter participation in the BDS movement would have restricted participating entities from receiving government funding, igniting a debate about the constitutionality of such a restriction.132 The government has broad powers under the Spending Clause of the Constitution to tax and spend for the general welfare.133 The powers granted by the Spending Clause include the powers to limit what can be done with federal funds in order to ensure that they are used in accordance with Congress's will.134 However, the Supreme Court has found that the First Amendment does limit the conditions that can be placed on the receipt of federal funds.135 Whether the government constitutionally may restrict the availability of federal funding to entities engaged in BDS activity could depend upon a number of factors, including the specifics of the funding restriction at issue and whether it is intended to target or suppress speech.
Some scholars have argued that, even if there is arguably some expressive quality to BDS activity, proposals to restrict entities engaged in BDS activity from receiving government funding should be viewed as possible prohibitions on discrimination.136 Specifically, some commenters have likened a possible restriction on discrimination against Israel-affiliated entities to other constitutionally permissible legislative prohibitions on discrimination, such as government restrictions against race-based discrimination by private entities.137
Two cases identified in support of this argument are Grove City College v. Bell and Christian Legal Society v. Martinez.138 In Grove City College, the Supreme Court held that Title IX of the Higher Education Amendments of 1972, which bans sex discrimination by universities that receive federal funds, did not violate the First Amendment rights of the educational institutions accepting the funds.139 According to the Court, "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept."140
In Christian Legal Society, the Court upheld a public law school's requirement that student groups allow all interested students to join their organizations in order to be recognized by the school and to receive the benefits of recognition (e.g., recognized student groups could receive financial assistance from the school for their events).141 The Christian Legal Society (CLS) argued that the law school's nondiscrimination policy violated CLS's First Amendment rights to limit its membership to Christians. The Supreme Court disagreed.142 According to the Court, the law school's policy did not require the group to refrain from discrimination directly. Instead, the law school's policy placed only "indirect pressure" on the group to allow any interested student to join regardless of that student's religious beliefs.143 If CLS wished to continue to discriminate in its membership, all it needed to do was forgo government subsidy.144 Furthermore, the Court noted that the law school's nondiscrimination policy had no effect on the beliefs any organization wished to espouse.145 Instead, the policy regulated CLS's conduct "without reference to the reasons motivating that behavior."146
Applying the reasoning of these cases in the present context, if a federal funding restriction applied only to BDS activity, without reference to motivation, and did not restrict a funding recipient's ability to speak about boycotts or to express an opinion about Israel, it could be argued that such a restriction would be constitutional. Under this reasoning, people would remain free to communicate their beliefs about Israel's policies and the wisdom of placing economic pressure on the country, but would not be free to engage in conduct that discriminated on the basis of a person's association with Israel.147 On the other hand, some have argued that laws aimed at restricting or deterring BDS activity, even if they would apply only to refusals to deal and not to the expression of support for the BDS movement, are nonetheless aimed at suppressing the message communicated by BDS participation and raise First Amendment issues.148 Supreme Court precedent has indicated that funding restrictions intended to suppress the private parties' expression of a particular viewpoint are unconstitutional.149 In Christian Legal Society the Court upheld the antidiscrimination requirement but explicitly noted that the requirement did not "target conduct on the basis of its expressive content."150 Opponents of BDS-related funding restrictions might claim that a restriction on federal funding to entities engaged in BDS activity would be a restriction enacted on the basis of the message communicated by the BDS movement, which could arguably place the restriction outside the Court's holding in Christian Legal Society. In other words, they might argue that in enacting the funding restrictions, the government was attempting to disfavor a message the government dislikes, and the funding restriction may implicate the First Amendment for that reason.
Even if the First Amendment is implicated by a restriction on funding to entities engaged in BDS activity, in general, the government is not required to fund goals with which it does not agree.151 The government generally may prohibit recipients of federal funds from using those funds in a way the government does not approve, provided that the restrictions on the use of the funds are germane to the federal interest in the program to which the funds are directed.152 For example, the Supreme Court has held that the government could prohibit the use of federal funds for family planning services to advocate or provide referrals for abortion.153 However, under Supreme Court precedent, the government cannot prescribe what an entity that receives federal funds may say with private money.154 Therefore, the government could not require recipients of federal funds to espouse a government-approved policy that applied to the entire organization, including the portion funded privately.155 Consequently, even if BDS activity is protected by the Constitution, the government may be able to restrict the use of federal funds by entities engaged in the BDS movement to support BDS activity, so long as the conditions on the use of the funds are germane to the federal interest being funded and do not burden speech funded privately.
As discussed earlier, since 2015 some states have taken action related to BDS activity. Generally, these actions fall into two categories: (1) prohibitions on state contracting with entities that engage in BDS activity and (2) divestment of state assets from companies that participate in BDS.156
Some states have either considered or enacted legislation to restrict state contracting with entities engaged in BDS activity.157 Similar to the arguments surrounding proposed restrictions on government funding for entities engaged in BDS activity against Israel, some scholars and commentators argue that these laws bar discrimination by government contractors against Israel and Israeli-affiliated entities, and, thus, do not raise First Amendment concerns.158 Government contractors in many situations are already prohibited from discriminating on the basis of race, color, religion, sex, and national origin.159 If a reviewing court accepted the argument that the state government contracting restrictions applied only to discriminatory conduct and were not aimed at suppressing a particular viewpoint, the restrictions might be upheld.
However, similar to the arguments surrounding potential government funding restrictions, if BDS activity is protected speech, the First Amendment may limit the government's ability to restrict that activity by government contractors.160 The Supreme Court has held that government contractors do not surrender their First Amendment rights as a result of the contract.161 Government contractors, therefore, retain their rights to engage in speech on matters of public concern, outside of the performance of the contract, and the Constitution limits the government's ability to terminate the contract on the basis of their speech.162 However, the Supreme Court has also acknowledged that the government has legitimate interests as a contracting party, which may outweigh the First Amendment rights of contractors in some circumstances.163 Reviewing courts therefore weigh contractors' rights to engage in speech on matters of public concern against the government's rights and interests as a contractor to determine whether the limitation on speech rights is permissible under the circumstances.164 If a reviewing court determined that a restriction on a government contractor's ability to engage in BDS activity outside the scope of the contract limited the speech of the contractor, a court might balance the competing interests of the state and the contractor to determine whether the limitation was permissible.
Another distinction that may be important is whether the contracting restriction applies to existing government contracts or to contracts prior to their formation.165 The Supreme Court has held only that the Constitution limits the termination of existing contracts in retaliation for engaging in protected speech.166 The Court has not opined on whether this protection would extend to new bids for government contracts, that is, whether the Constitution limits the government's ability to deny the award of a contract on the basis of the contractor's otherwise-protected speech.167 Lower courts that have considered this question have disagreed on this issue.168
Certain states have also taken action to divest state funds from entities engaged in BDS activity.169 For example, the governor of New York recently signed an executive order requiring all state agencies to divest funds from entities engaging in BDS activity.170 As with previously analyzed restrictions, the key issues in determining the constitutionality of such actions are whether BDS activity is protected by the First Amendment and, if it is, the degree to which the government is attempting to suppress a disfavored message by enacting the restrictions on investment.171
Proponents of state action to restrict investment in entities engaged in BDS activity argue that BDS is not protected speech and investment restrictions, therefore, do not implicate the First Amendment.172 If a reviewing court were to accept that argument, the state restrictions on investment arguably could be permissible under the First Amendment.
Other observers, however, have noted that the constitutional status of BDS activity is, at the least, unclear.173 If BDS activity is protected by the First Amendment, the constitutionality of a restriction on state investment in entities engaged in that activity would also be uncertain.174 According to one scholar, whether a state limitation on investing its funds in entities because of their speech might violate the First Amendment is without "direct precedent, at least at the Supreme Court."175
The closest analogue appears to be the Supreme Court's line of cases analyzing restrictions on government funding, discussed earlier.176 In the Court's most recent opinion analyzing a government funding restriction on speech, Chief Justice Roberts distilled the Court's precedent in this area, writing that "the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program – those that specify the activities Congress wants to subsidize – and conditions that seek to leverage funding to regulate speech outside the contours of the program itself."177 A court reviewing state investment restrictions might, therefore, examine whether the restriction represented the government's expression of support for a specific public policy or an attempt by the government to "leverage" its investing power "to regulate speech."178
Most of the First Amendment challenges to existing BDS regulations have concerned state anti-BDS laws that condition the receipt of government funds or public employment on a commitment by the grantee or employee not to engage in BDS activity.81 This report focuses on the First Amendment analysis that has been applied to these laws prohibiting government contractors from engaging in BDS activity.
General Background A court's review of a First Amendment challenge to a law regulating BDS activity would depend on the terms of the regulation and the type of activity it regulates. For example, product labeling requirements that differentiate between Israel and the West Bank or Golan Heights on the basis of geographic origin could be challenged under the First Amendment insofar as they compel speech—but they may be subject to a lower standard of scrutiny that applies to certain commercial disclosure requirements and thus more likely to be upheld under that more relaxed standard.82 To take another example (discussed in more detail below), a court might analyze a divestiture law placing conditions on government spending under a more lenient standard, particularly as compared to a law directly prohibiting private parties from engaging in BDS activity.83 For instance, in 2016, the governor of New York signed an executive order requiring all state agencies to divest funds from entities engaging in BDS activity.84 A number of commentators argued that this New York order violated the First Amendment because it effectively penalized protected expressive activity.85 This executive order remains in effect and has not been assessed by courts.86To determine whether a challenged regulation is unconstitutional under the First Amendment, a threshold issue is whether the government action is targeting "speech" protected by the First Amendment.87 In general, the Supreme Court has distinguished statutes that regulate conduct from those regulating speech.88 If a law primarily targets conduct and "only incidentally burdens" protected expression, an "intermediate scrutiny" standard would likely apply, "under which a 'content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.'"89
On the other hand, if the government is "target[ing] speech based on its communicative content," the policy will generally be subject to strict scrutiny and be "presumptively unconstitutional" unless the government can show that the law is "narrowly tailored to serve compelling state interests."90 The Supreme Court has said that a law will be impermissibly content-based "if a law applies to particular speech because of the topic discussed or the idea or message expressed."91 If a law discriminates based on a speaker's viewpoint, or targets "particular views taken by speakers on a subject," it will also likely be unconstitutional.92 Additionally, a government action targeting conduct may be subject to heightened scrutiny if the targeted conduct "possesses sufficient communicative elements to bring the First Amendment into play."93 However, if the government is speaking for itself, it may make content and viewpoint distinctions in choosing that speech.94 The "government speech" doctrine, explained in more detail below, recognizes that the government "is entitled to promote a program, to espouse a policy, or to take a position."95
The fact that a law targets private speech or expressive conduct does not necessarily render that regulation unconstitutional. In rare circumstances, a law directed at expressive activity because of its content may survive strict scrutiny.96 Further, there are certain types of speech that the government may more freely regulate without triggering strict scrutiny.97 One of these categories is commercial speech, defined alternatively as speech that "does 'no more than propose a commercial transaction'"98 or that is "related solely to the economic interests of the speaker and its audience."99 Governments may prohibit commercial speech that is misleading or related to unlawful activity, and regulations of other types of commercial speech are generally subject to an intermediate level of review, rather than strict scrutiny.100 Under this intermediate standard, courts will uphold regulations of commercial speech so long as the regulation "directly advances" a "substantial" government interest and "is not more extensive than is necessary to serve that interest."101 And as suggested above, a regulatory scheme that primarily targets commercial conduct may be subject to even more relaxed review under the First Amendment.102
As a result, resolving any First Amendment challenge to an anti-BDS law requires analysis of a number of different issues. To determine what level of scrutiny to apply, a court would ask whether these laws target protected speech activity or merely regulate conduct. If they regulate speech, the next question is what type of speech is regulated by the law. And depending on the nature of the challenged law and the regulated speech, a number of other First Amendment doctrines may come into play, including the government speech doctrine, the unconstitutional conditions doctrine, the Pickering balancing test, and the presumption against content- and viewpoint-based laws, all of which are discussed below.
Boycotts as Conduct or Expressive ActivityTo determine whether the First Amendment is implicated by laws that prohibit companies or individuals contracting with the government from engaging in BDS activity, one critical preliminary question is whether BDS activity qualifies as constitutionally protected speech. The answer to this question depends on the particular activity at issue in any given dispute, as the Supreme Court has previously said that laws prohibiting boycott activities do not necessarily violate the First Amendment.103 In general terms, a law will be more likely to violate free speech guarantees if it targets political speech, as opposed to economic activity or non-expressive conduct.104
In NAACP v. Claiborne Hardware, the Supreme Court held that the First Amendment protected certain activities related to a boycott.105 The NAACP had organized a boycott of white businesses after local governments responded unfavorably to a petition concerning a series of demands for racial equality.106 A number of the white merchants subject to the boycott sued the NAACP under common law theories as well as state statutes prohibiting anticompetitive activity.107 The Supreme Court noted that this boycott included expressive activities that were, under prior case law, constitutionally protected types of speech and association:
The boycott was launched at a meeting of a local branch of the NAACP attended by several hundred persons. Its acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join in its cause.108
Nonetheless, the Claiborne Court's analysis was not complete once it concluded that the boycott involved protected activity.109 The Court acknowledged that in prior cases, it had held that Congress could prohibit "secondary boycotts and picketing by labor unions" as unfair trade practices, even if these regulations had "an incidental effect on First Amendment freedoms."110 In Claiborne, however, the Court said that the government's interest in these types of economic regulations could justify regulating speech activity only in "certain narrowly defined instances."111 Accordingly, the government's "broad power to regulate economic activity" did not provide it the "right to prohibit peaceful political activity such as that found in the boycott in this case."112
After Claiborne, the Supreme Court has emphasized that the government may regulate the non-expressive aspects of boycott activities without violating the First Amendment, so long as it is not targeting political speech itself. For instance, in Federal Trade Commission (FTC) v. Superior Court Trial Lawyers Association, the Court upheld an order from the FTC concluding that a group of lawyers had engaged in unfair trade practices and violated federal law by refusing "to represent indigent criminal defendants … until the District of Columbia government increased the lawyers' compensation."113 The Supreme Court acknowledged that the group's "efforts to publicize the boycott, to explain the merits of its cause, and to lobby District officials to enact favorable legislation" were protected activity, but concluded that the FTC order did not "curtail" or "condemn[]" those speech activities.114 Instead, the order permissibly targeted only the boycotters' economically motivated conduct: the "concerted refusal by [the] lawyers to accept any further assignments until they receive[d] an increase in their compensation."115 In light of this precedent, some have argued that while expressive activity surrounding boycotts may be protected, a refusal to deal is not itself protected by the First Amendment.116
Somewhat similarly, the Supreme Court concluded that the First Amendment did not protect a number of law schools attempting to protest the Solomon Amendment in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR).117 Under the Solomon Amendment, higher education institutions "would lose certain federal funds" if they "denie[d] military recruiters access equal to that provided other recruiters."118 Prior to the passage of the Solomon Amendment in 1996, some law schools, in actions that some have equated to a boycott,119 had restricted military recruiting on campus on the basis that the military's "policy on homosexuals in the military" violated the schools' nondiscrimination policies.120 FAIR argued that by forcing the schools to "disseminate or accommodate a military recruiter's message," the Solomon Amendment violated their First Amendment rights.121
The Supreme Court disagreed, concluding that the schools were not actually engaging in protected speech when they hosted interviews and other recruiting efforts.122 Considering the requirement that schools host recruiters, the Court said that "a law school's decision to allow recruiters on campus is not inherently expressive," explaining that "[n]othing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military's policies."123 In the Court's view, the schools' actions were expressive only because they accompanied that conduct "with speech explaining it."124 The Court further held that even though the Solomon Amendment might sometimes compel schools to speak—such as when they send notifications about military recruiting activities—this did not violate the First Amendment because the speech regulation was "incidental to the Solomon Amendment's regulation of conduct."125
This distinction between expressive and nonexpressive conduct has been central to the lower court decisions reviewing challenges to state laws prohibiting contractors from boycotting Israel. One of the key preliminary questions has been whether the regulated BDS activities are protected by the First Amendment, as in Claiborne, or whether instead they are economic or non-expressive conduct that the state may regulate, as in Superior Court Trial Lawyers Association and FAIR. For instance, one federal trial court in Arkansas Times LP v. Waldrip concluded that an Arkansas law requiring companies doing business with the state to "certify that they are not boycotting Israel" did not regulate protected speech.126 The court said that the boycotts prohibited by the state law included only "a contractor's purchasing activities with respect to Israel" and did not include "criticism of [the state law] or Israel, calls to boycott Israel, or other types of speech."127 The court held that the prohibited boycott activities, like the activities at issue in FAIR, were not "inherently expressive."128 The court reached this conclusion after deciding that "a refusal to deal, or particular commercial purchasing decisions," are expressive only if accompanied by explanatory speech.129 The court further said that Claiborne protects only "nonviolent, primary political boycotts to vindicate particular statutory or constitutional interests."130
Three other trial courts, however, have concluded that similar state laws do regulate protected speech, concluding that the covered boycott activities are expressive in nature.131 For instance, in Amawi v. Pflugerville Independent School District, a federal district court in Texas held that the regulated "BDS boycotts are inherently expressive conduct."132 The court observed that, as conceded by the state, the boycotts were "political" and represented participants' disagreement with Israeli policy.133 Quoting Claiborne, the court concluded that although the refusal to deal could be seen as conduct, in a political boycott, "the 'elements of speech, assembly, association, and petition … are inseparable' and are magnified by the 'banding together' of individuals 'to make their voices heard.'"134 Under the circumstances, said the court, "'[r]efusing to buy things' … takes on special significance."135 Further, the court said that even if political boycotts are not generally expressive, the Texas statute targeted only expressive boycotts because it was limited to actions that were "intended to penalize, inflict harm on, or limit commercial relations specifically with Israel."136 In the court's view, the government was targeting conduct based on "the expressive purpose behind the refusal to buy things."137
Similarly, a federal district court in Arizona had previously held in Jordahl v. Brnovich that a state law regulated expressive conduct when it prohibited state entities from contracting with companies unless they certified that they were not boycotting Israel.138 The court noted that the Arizona law prohibited boycott activities only "when taken 'in compliance with or adherence to calls for a boycott of Israel.'"139 The court concluded that this language "necessarily contemplates prohibiting collective conduct aimed 'to achieve a common end'; here, a 'boycott of Israel.'"140 The court held that because this law prohibited "the collective element" of these boycott activities, targeting actions "taken in response to larger calls to action that the state opposes," the law infringed on "the very kind of expressive conduct at issue in Claiborne."141
Arizona argued in Jordahl that even if these boycotts were considered speech, at most, these activities qualified as "commercial" speech entitled to less protection under the First Amendment.142 The state cited Briggs & Stratton Corp. v. Baldridge, a 1984 case from a federal appellate court that had concluded that certain boycott-related activities were commercial in nature.143 In Briggs & Stratton Corp., U.S. companies challenged a federal law preventing them from responding to questionnaires the Arab League circulated to assure the League that they were not violating a trade boycott of Israel.144 The appellate court ruled that while the boycott itself might involve political speech, the companies' answers to these questionnaires were motivated solely by economic interests, making their responses commercial speech.145 The Jordahl court concluded that unlike those companies, the Arizona law was being applied to plaintiffs whose actions were politically motivated, and therefore did not regulate only commercial speech.146
Finally, in Koontz v. Watson, a federal trial court in Kansas concluded that a state law similarly requiring contractors to certify that they are not boycotting Israel regulated conduct that was "inherently expressive."147 The court said that "[c]onduct is inherently expressive when someone understands that the conduct is expressing an idea without any spoken or written explanation."148 The regulated boycotts, according to the court, were inherently expressive because they were easily associated "with the message that the boycotters believe Israel should improve its treatment of Palestinians."149 The court also concluded that forcing the plaintiff challenging the law "to disown her boycott is akin to forcing plaintiff to accommodate Kansas's message of support for Israel," distinguishing this case from FAIR.150
Thus, while a number of federal trial courts have concluded that BDS activity qualifies as expressive conduct protected by the First Amendment,151 at least one trial court has reached the opposite conclusion, holding that boycott activity is not expressive.152 Further, three of these cases are currently on appeal. Accordingly, whether state laws regulating BDS activity infringe on expressive activity protected by the First Amendment can fairly be described as an open question—although the majority view of reviewing courts so far appears to be that collective boycott activity motivated by disapproval of the Israeli government's policy decisions is expressive conduct.153Assuming that an anti-BDS law does regulate constitutionally protected speech, the next relevant question is what standard a court should apply to determine whether the law violates the First Amendment. Different doctrines may bear on this question, depending on the particular law at issue. Laws placing conditions on government funding or employment will likely implicate the government speech doctrine as well as the unconstitutional conditions doctrine or the Pickering balancing test. A law that discriminates on the basis of content or viewpoint is subject to heightened scrutiny.
Government Speech DoctrineAs mentioned above, the "government speech" doctrine permits the government to make content and viewpoint distinctions when it is speaking for itself.154 Concurrently, the government is entitled to decide under certain circumstances that it will subsidize certain types of speech and not others.155 Further, "[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee."156 Thus, for example, in Rust v. Sullivan, the Supreme Court upheld federal provisions prohibiting health programs receiving federal funding from encouraging the use of abortion.157 The Court said that Congress had permissibly decided that "abortion counseling and referral" were outside the scope of the grant program, and the federal regulations were appropriately "designed to ensure that the limits of the federal program are observed."158 But the Supreme Court has also emphasized that the First Amendment may still prohibit certain types of funding limitations, particularly if they "discriminate invidiously … in such a way as to '[aim] at the suppression of dangerous ideas,'"159 or impose "a disproportionate burden calculated to drive 'certain ideas or viewpoints from the marketplace.'"160 Anti-BDS spending limitations may implicate two different First Amendment doctrines: the unconstitutional conditions doctrine and the Pickering balancing test.
Unconstitutional Conditions DoctrineWhile the government has significant discretion to define a program's scope, and in doing so, decide not to fund certain types of expressive activity,161 the First Amendment may still limit its ability to place certain conditions on funds. As a general matter, Congress has significant discretion under the Constitution's Spending Clause "to tax and spend for the 'general Welfare,' including by funding particular state or private programs or activities."162 This includes the power to fund only certain activities and exclude others, and to place reasonable conditions on funds to ensure they are used only for the intended purposes.163 However, the government may not impose conditions that are unconstitutional.164 Accordingly, the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests."165 Laws that condition a grant of federal or state funding on a recipient's speech will likely be analyzed under this unconstitutional conditions doctrine.166
Defenders of the state laws prohibiting contractors from engaging in BDS activity have argued that these conditions are permissible exercises of government speech.167 Others have concluded that these laws violate the unconstitutional conditions doctrine, largely relying on a 2013 case, Agency for International Development v. Alliance for Open Society International, Inc., in which the Supreme Court held that a federal spending condition violated the First Amendment.168 The federal funds were part of a program "to combat the spread of HIV/AIDS around the world."169 One condition required recipients to have "a policy explicitly opposing prostitution and sex trafficking."170 The Supreme Court struck down that condition as unconstitutional.171 Noting that prior cases had distinguished between "conditions that define the federal program and those that reach outside it," the Court concluded that this condition went beyond "defining the limits of the federally funded program" to limit the recipient's speech outside the bounds of that program.172 The Court emphasized that another condition on the grant preventing the funds from being used to promote prostitution was sufficient to prevent misuse of federal funds—suggesting that the challenged condition had to "be doing something more."173 In the Court's view, this limitation created an "ongoing condition on recipients' speech and activities, a ground for terminating a grant after selection is complete," violating the First Amendment.174
Some have argued that laws placing anti-BDS conditions on government funds could run afoul of the principle from Alliance for Open Society.175 One law professor has suggested that at least some state policies could be characterized as "conditions that seek to leverage funding to regulate speech outside the contours of the program itself."176 Contractors subject to these laws have argued that they affect their "personal consumer decisions" and prevent them from speaking out about personal boycott activities.177 Further, if courts believe that anti-BDS certification requirements compel contractors to express messages with which they do not agree178 or "to accommodate [the state's] message of support for Israel,"179 they might be concerned with whether this compelled speech is occurring outside the confines of the funded program, running afoul of Alliance for Open Society.180 By contrast, at least one defender of a challenged anti-BDS law has argued that even if particular contractors are worried about specific expressive activities, the challenged law as a whole primarily governs the performance of state contracts, permissibly setting out how funds should be spent to further the state's goals.181 So far, however, no courts have ruled on how this aspect of the unconstitutional conditions doctrine applies to existing state laws.182
Public Employee SpeechA related but distinct test would likely govern a court's analysis when it evaluated the application of anti-BDS laws to specific government contractors or employees: the Pickering balancing test.183 The Supreme Court has recognized that the government has an interest in regulating the speech of employees to efficiently provide public services.184 When employees perform their duties, they are generally speaking on behalf of the government, and the government can accordingly control their speech as a corollary of the government speech doctrine.185 However, in Pickering v. Board of Education, the Supreme Court emphasized that when public employees speak as citizens, outside the course of their ordinary duties, they do not completely "relinquish the First Amendment rights they would otherwise enjoy" to discuss public issues, including matters related to the offices where they work.186 The Court said in Pickering that to analyze the constitutionality of a restriction on an employee's speech, a reviewing court should balance the interests of the employee, as a citizen, against "the interest of the State, as an employer."187 The Pickering balancing test, therefore, protects a public employee's speech when they are speaking as a citizen on a matter of public concern, and when the employee's and the public's interest in that speech outweighs the government's interest as an employer.188
Pickering, however, resolved an employee's lawsuit alleging that his employer improperly retaliated against him for exercising his First Amendment rights—it was "a post hoc analysis of one employee's speech."189 Where a court is not evaluating an individual retaliation suit, but instead reviewing a preemptive, government-wide policy, it may apply a stricter test pursuant to the Supreme Court's decision in United States v. National Treasury Employees Union (NTEU).190 NTEU involved a challenge to a federal statute that prohibited most government employees from receiving honoraria, including payments for speeches or articles.191 After ruling that the ban did affect employees when speaking as citizens, the Court said that the government's burden in justifying this broad provision was especially "heavy" because the law represented a "wholesale deterrent to a broad category of expression by a massive number of potential speakers,"192 imposing a more "significant burden on expressive activity."193 Drawing from precedent outside the Pickering line of cases, the Supreme Court said that to justify the ban, the government would have to "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."194 Ultimately, the Supreme Court held that the ban was unconstitutional.195 The Court has described the NTEU standard as closer to "exacting scrutiny than the traditional Pickering analysis."196
Laws that require government employees or contractors to abstain from BDS activities are potentially subject to review under either Pickering or NTEU.197 The trial courts that have evaluated state anti-BDS laws so far have struck down such laws under NTEU's heightened standard,198 given that the laws are "preemptive restriction[s] on the speech of numerous potential speakers."199 States have primarily argued that NTEU is not implicated because they are not regulating speech,200 but they have also argued that they meet the standard outlined in that case. For example, in Jordahl, the state asserted two different interests to justify its anti-BDS law—an interest in regulating commercial activity and an interest in preventing national-origin discrimination—but the trial court rejected both of them.201 The court said that the law's "legislative history … call[ed] these stated interests into doubt."202 Instead, in the view of the court, the goal of the law appeared to be "to penalize the efforts of those engaged in political boycotts of Israel and those doing business in Israeli-occupied territories because such boycotts are not aligned with the State's values."203 This interest, said the court, was "constitutionally impermissible."204
But even assuming that the government's stated interests were the real justifications for the law, the Jordahl court held in the alternative that they could not justify the ban because it was not "necessary to advance" those interests.205 Citing NTEU's requirement that the state must offer evidence to prove that any harm caused by the regulated speech is real, the court said that the state had "failed to produce any evidence of Arizona's business dealings with Israel, Israeli entities, or entities that do business with Israel that would suggest the State was seeking to regulate boycotts of Israel that were intended to suppress economic competition."206 The court ruled that the state's "speculative fears of subsidizing boycotts of Israel" could not suffice to justify the law's "broad prospective restriction on boycotting activity."207
Presumptions against Content and Viewpoint DiscriminationAs mentioned above, a law that discriminates against certain speech or expressive conduct on the basis of its "communicative content" will be subject to strict scrutiny and will be "presumptively unconstitutional" unless the government can show that the law is "narrowly tailored to serve compelling state interests."208 Some of the trial courts evaluating state anti-BDS laws have held that these laws target expressive conduct on the basis of its content or viewpoint and are therefore unconstitutional.209 In Koontz, the court said that the legislative history of the Kansas law showed that its goal was "to undermine the message of those participating in a boycott of Israel."210 In the view of the court, this record suggested "either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel," either of which was "impermissible" under the First Amendment.211 The court further held that even if the law's goal was "to regulate boycotts intended to suppress economic competition coming from Israel—a goal that Claiborne permits," it would still fail First Amendment scrutiny because it was not "narrowly tailored" to achieve that goal.212 Specifically, the Kansas court said that the law was "overinclusive" because it also banned "political boycotts," as well as "underinclusive" because it did not "regulate other conduct that affects trade."213
The Amawi court reached a similar conclusion, reasoning that the Texas anti-BDS law was "a content-based restriction because it singles out speech about Israel, not any other country," and was "a viewpoint-based restriction because it targets only speech 'intended to penalize, inflict harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory'"—which is to say, it targeted "only 'anti-BDS' speech."214 The state argued in Amawi that it had a compelling interest in regulating commerce and in prohibiting contractors from "violating anti-discrimination principles," including preventing discrimination on the basis of national origin.215 With respect to this first interest, the court concluded that an interest in regulating commerce could not justify a law that directly targeted speech, rather than merely imposing an incidental burden.216 Turning to the second interest, the court concluded the law "was not," in fact, enacted to prevent national origin discrimination.217 Noting that the law "target[ed] only boycotts of Israel," and on its own terms, left companies free to boycott persons or entities of Israeli national origin so long as they were outside Israel itself, the court said that the law was underinclusive if its goal was truly to prevent national-origin discrimination.218 The court viewed the legislative history to further underscore that the law was singling out particular speech because of its message.219
Outside of Amawi, defenders of anti-BDS laws have similarly argued that the goal is not to prohibit or penalize certain speech, but instead to prevent discrimination.220 It is largely an open question whether the government's interest in preventing discrimination could justify restricting speech on the basis of its content.221 The Supreme Court has recognized that at least in some contexts, the government's interest in preventing discrimination is a "compelling" one.222 But even if the government's interest is compelling, strict scrutiny also requires the government to show that its law is "narrowly tailored" to meet that interest.223 As discussed above, some trial courts have concluded that current state anti-BDS laws are not sufficiently tailored to an anti-discrimination interest.224 Nonetheless, Supreme Court precedent does suggest that in at least some circumstances, the government's interest in preventing discrimination might justify applying an anti-discrimination law to specific activity protected by the First Amendment.225
Federal Preemption Questions: Commerce Clause and Foreign Affairs226 As noted above, some state and local governments have enacted or are considering measures to counteract BDS-related or differentiation measures. State and local economic sanctions meant to influence foreign politics ordinarily raise three related constitutional issues: (1) whether they are preempted by federal law under the Constitution's Supremacy Clause; (2) whether they burden foreign commerce in violation of the dormant Foreign Commerce Clause and, if so, whether they are protected by the market participant exception; and (3) whether they impermissibly interfere with the federal government's exclusive power to conduct the nation's foreign affairs.As noted above, some state and local governments have enacted or are considering measures to counteract BDS-related or differentiation measures. State and local economic sanctions meant to influence foreign politics ordinarily raise three related constitutional issues: (1) whether they are preempted by federal law under the Constitution's Supremacy Clause; (2) whether they burden foreign commerce in violation of the dormant Foreign Commerce Clause and, if so, whether they are protected by the market participant exception; and (3) whether they impermissibly interfere with the federal government's exclusive power to conduct the nation's foreign affairs.180 The constitutionality of any given state or local measure would depend upon the particulars of the legislation at issue and whether Congress enacts any law to sanction BDS participants or prohibit BDS compliance. The preemption issue has not arisen in any BDS-related litigation to date.
The Supremacy Clause of the Constitution establishes that federal statutes, treaties, and the Constitution itself are "the supreme Law of the Land."181227 Accordingly, states can be precluded from taking actions that are otherwise within their authority if federal law is thereby impeded. The extent to which a federal statute preempts state law in a given area is within the control of Congress. Congress may, by clearly stating its intent, choose to preempt all state laws, no state laws, or only those state laws with certain attributes.182228 When Congress enacted the antiboycott provisions of the Export Administration Act (EAA) in 1977,183229 for example, it expressly preempted any state or local measure that "pertains to participation in, compliance with, implementation of, or the furnishing of information regarding restrictive trade practices or boycotts fostered or imposed by foreign countries against other countries."184
Even absent an express preemption provision such as that found in the EAAAnti-Boycott Act, an act of Congress can impliedly preempt state or local action. Where Congress has not expressly preempted state and local laws, two types of implied federal preemption may be found: field preemption, in which federal regulation is so pervasive that one can reasonably infer that states or localities have no role to play,185233 and conflict preemption, in which "compliance with both federal and state regulations is a physical impossibility,"186234 or where the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."187235 The Supreme Court felled a Massachusetts law on the latter ground because the law imposed sanctions on Burma (Myanmar) in such a way that frustrated the implementation of a federal statutory scheme also targeting Burma.188236
In order toTo preclude implied preemption, Congress may sometimes include nonpreemption language in sanctions legislation. One bill in the 115th Congress has been introduced to preserve state and local anti-BDS or antidifferentiation measures. The Combating BDS Act of 2017, S. 170 (see Table 1),The Combatting BDS Act of 2019, Title IV of S. 1 (see "Proposed Combatting BDS Act" above) would preserve state and local anti-BDS or anti-differentiation measures that meet certain requirements The bill would permit state and local governments to divest their own assets from, or prohibit government contracting with, certain entities that they determine engage in BDS-related activity, as defined by the bill and subject to its restrictions. The bill appears to be modeled on Section 3 of the Sudan Accountability and Divestment Act of 2007, which provides that certain state and local actions targeting Sudan are notdoes not clarify whether state and local anti-BDS or anti-differentiation measures that do not meet the bill's qualifications would be considered preempted by any federal law.189
The Constitution provides Congress with the authority to regulate both interstate and foreign commerce.190237 In addition to this affirmative grant of constitutional authority, the Supreme Court has recognized that the Commerce Clause implies a corresponding restraint on the authority of the states to interfere with commerce, even absent congressional action.191238 This inferred restriction arising from congressional inaction is generally referred to as the "dormant" Commerce Clause. Under this established principle, states and localities are prohibited from unreasonably burdening or discriminating against either interstate or foreign commerce unless they are authorized by Congress to do so.192239 In a series of cases involving state taxes, the Supreme Court has set out criteria for examining whether state measures impermissibly burden foreign commerce where affirmative congressional permission is absent. In sum, the Court has required a closer examination of measures alleged to infringe the Foreign Commerce Clause than is required for those alleged to infringe its interstate counterpart,193240 but has also provided some room for state measures in situations where a federal role is not clearly demanded.194
Where Congress has not clearly immunized a state selective purchasing or divestment law, a state may defend a challenged law by invoking the market participant doctrine, which protects those laws in which the state or local government acts as a buyer or seller of goods rather than as a regulator.195242 Consequently, state and local measures that pertain to the investment of government funds, as well as measures that regulate government procurement, may be defended on the ground that the state or local government is merely making investment or purchasing choices for itself and not regulating other investors or buyers, as the case may be. The market participant doctrine, however, may not apply where the state seeks to affect behavior beyond the immediate market in which it is operating; the doctrine does not immunize laws from other constitutional challenges; and the Supreme Court has suggested the doctrine may not even apply in Foreign Commerce Clause cases.196243
"Power over external affairs is not shared by the States; it is vested in the national government exclusively."197244 Consequently, state or local laws that encroach on the federal government's authority over foreign affairs may be deemed constitutionally impermissible. In its 1968 decision in Zschernig v. Miller,198245 the Supreme Court struck down an Oregon law prohibiting nonresident aliens from inheriting property unless they could demonstrate to the Oregon state courts that their home countries allowed U.S. nationals to inherit estates on a reciprocal basis and that payments to foreign heirs from the Oregon estates would not be confiscated. Although the federal government had not exercised its power in the area, the Supreme Court nonetheless found that the inquiries required by the Oregon statute would result in "an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress."199246 The Court distinguished an earlier decision, Clark v. Allen,200247 which had upheld a similar California statute on the ground that the statute in that case could be implemented through "a routine reading of foreign law" and did not require the particularized inquiries demanded by the Oregon statute.201
The Supreme Court reaffirmed Zschernig and the dormant foreign affairs power in 2003 when it248
In 2003, the Supreme Court struck down a California law requiring insurers to report life insurance policies held by Holocaust victims because the law interfered with an executive agreement supporting a German initiative to resolve Holocaust insurance claims without litigation.202 It249 But while treating Zschernig as good law, the Court relied primarily on traditional preemption analysis rather than the dormant foreign affairs power,250 leaving some ambiguity as to the continued vitality of the doctrine. Yet lower courts continue to rely on Zschernig to invalidate state laws deemed to conflict with the federal foreign affairs power.251 Still, it appears to be an open question whether Congress can permit state and local regulations that conflict with federal foreign policy,203252 or whether states and localities that enact such measures can invoke a "market participation" exception to shield them from challenges on foreign policy grounds.204253 Prior to enactment of the Sudan Accountability and Divestment Act of 2007, a federal district court enjoined enforcement of an Illinois law that prohibited the deposit of state or municipal funds in any financial institution that does business in or with Sudan, on the basis that the law interfered with the federal government's dormant foreign policy power.205254 It does not appear that any court has yet addressed whether the nonpreemption language in the Sudan Accountability and Divestment Act of 2007 would effectively shield similar state laws from legal challenges.
Author Contact Information
Acknowledgments
[author name scrubbed], Analyst in Middle Eastern Affairs, provided research assistance.
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The United States recognized the Golan Heights as part of Israel in 2019; however, U.N. Security Council Resolution 497, adopted on December 17, 1981, held that the area of the Golan Heights controlled by Israel's military is occupied territory belonging to Syria. |
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Ibid. |
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The "Wall" is a term commonly used by Palestinians to describe the separation barrier that Israel has built in various areas roughly tracking (though departing in significant ways at some points from) the 1949-1967 Israel-Jordan (West Bank) armistice line, also known as the "Green Line." |
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These three objectives are found at http://www.bdsmovement.net/call. |
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| 7. |
See, e.g., McMahon, op. cit.; Tracy, op. cit. |
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| 8. |
In his January 11 hearing, Secretary Tillerson indicated that actions by countries that are seen to advance BDS-related goals would "shade" the U.S. view of those countries. In her January 18 hearing, Ambassador Haley said, "I will not go to New York and abstain when the U.N. seeks to create an international environment that encourages boycotts of Israel." |
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| 9. | See https://bdsmovement.net/colonialism-and-apartheid/summary. See, e.g., David M. Halbfinger, "A Look at the International Drive to Boycott Israel," New York Times, July 28, 2019. See https://jstreet.org/policy/boycott-divestment-and-sanctions-bds/#.XZIu00ZKiUl. See, e.g., Department of State Press Statement, Decision by EU Court of Justice on Psagot Case, November 13, 2019; Secretary of State Michael Pompeo, Remarks at the AIPAC Policy Conference, Washington, DC, March 25, 2019. In April 2019, BDS movement co-founder Omar Barghouti, a permanent resident of Israel, was prohibited by U.S. government officials from making a trip to the United States despite holding valid travel documents. Noa Landau, "U.S. Denies Entry to BDS Founder Omar Barghouti," haaretz.com, April 11, 2019. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 10. | Ron Kampeas, "4 takeaways from the House's big vote against the Israel boycott movement," Jewish Telegraphic Agency, July 26, 2019. The most-cited international law pertaining to Israeli settlements is the Fourth Geneva Convention, Part III, Section III, Article 49 Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, which states in its last sentence, "The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." Israel insists that the West Bank does not fall under the international law definition of "occupied territory," but is rather "disputed territory" because the previous occupying power (Jordan) did not have an internationally recognized claim to it, and given the demise of the Ottoman Empire at the end of World War I and the end of the British Mandate in 1948, Israel claims that no international actor has superior legal claim to it. |
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| 11. |
See, e.g., Barak Ravid, "Denmark's Largest Pension Fund Divests From German Firm Which Operates Quarries in Israeli Settlements," Ha'aretz, December 15, 2016; Bernard Avishai, "The E.U. vs. B.D.S: The Politics of Israel Sanctions," New Yorker, January 22, 2016; Noah Browning, "Major Dutch pension firm divests from Israeli banks over settlements," Reuters, January 8, 2014; Ministry of Finance (Norway), "Three companies excluded from the Government Pension Fund Global," press release, August 23, 2010, https://www.regjeringen.no/en/aktuelt/three-companies-excluded-from-the-govern/id612790/. |
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| 12. |
Peter Baker, "A Defiant Israel Vows to Expand Its Settlements," New York Times, December 27, 2016. |
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| 13. |
Jumana al Tamimi, "Boycott move buoyed by UN resolution," Gulf News, December 26, 2016; Alan Baker, "The Dangers of UN Security Council Resolution 2334 (2016)," Jerusalem Center for Public Affairs, December 26, 2016. |
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| 14. |
Uri Savir, "Why the PA is distancing itself from BDS movement," Al-Monitor Israel Pulse, May 8, 2016; Yoel Goldman, "Abbas: Don't Boycott Israel," Times of Israel, December 13, 2013. |
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| 15. |
Natan Sachs, "What's new and what's not in the U.N. resolution on Israeli settlements," Brookings Institution (Markaz blog), December 26, 2016. |
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|
|
See https://peacenow.org/page.php?name=bds-name-and-shame-them#.XY0MDkZKiUk 16.
|
|
See, e.g., Yossi Klein Halevi, "Boycotting Israel won't end the Palestinian tragedy," Los Angeles Times, February 19, 2019. 17.
|
|
The text of the notice is available at http://eeas.europa.eu/delegations/israel/documents/news/20151111_interpretative_notice_indication_of_origin_of_goods_en.pdf, and the factsheet at http://eeas.europa.eu/delegations/israel/documents/news/20151111_indication_of_origin_fact_sheet_final_en.pdf. The labeling rules are required for fresh fruit and vegetables, wine, honey, olive oil, eggs, poultry, organic products, and cosmetics; and are optional for pre-packaged foodstuffs and the majority of industrial products. 18.
|
|
Text of statement available at http://mfa.gov.il/MFA/PressRoom/2015/Pages/Israel-condemns-EU-decision-on-labeling-11-Nov-2015.aspx. 19.
|
|
Bradley Klapper, "US OK With New EU Labeling Rule for Israeli Settlement Goods," Associated Press, November 12, 2015. At a daily press briefing the day before the European Commission issued its labeling notice, the deputy spokesperson had said that it could be "perceived as a step on the way" to a boycott. 20.
|
|
Ibid. See U.S. Customs and Border Protection, West Bank Country of Origin Marking Requirements, Cargo Systems Messaging Service #16-000047, January 23, 2016. 21.
|
|
Andrew Rettman, "Shops should label Israeli settler goods, EU jurist says," EUObserver, June 13, 2019. 22.
|
|
CJEU, Press Release No 140/19, Judgment in Case C363/18 Organisation juive européenne, Vignoble Psagot Ltd v Ministre de l'Économie et des Finances Luxembourg, November 12, 2019. 23.
|
|
Raphael Ahren, "In landmark ruling, EU's top court says settlement product labeling mandatory," Times of Israel, November 12, 2019. 24.
|
|
Department of State Press Statement, Decision by EU Court of Justice on Psagot Case, November 13, 2019. 25.
|
European Middle East Project MORE INFO. https://www.timesofisrael.com/europe-failing-to-implement-eu-settlement-labeling-directive-study-shows/
26.
|
See U.N. Human Rights Council resolution 31/36 (A/HRC/31/L.39), March 22, 2016, paragraph 17; and paragraphs 96 and 117 of Human Rights Council Document, A/HRC/22/63, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, February 7, 2013. |
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|
Mohamad Torokman, "U.S. condemns U.N. call for list of firms operating in West Bank," Reuters, March 31, 2016; Transcript of Remarks by Ambassador Nikki Haley, U.S. Permanent Representative to the United Nations, Geneva, Switzerland, June 6, 2017, available at https://usun.state.gov/remarks/7828. |
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|
|
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|
|
U.N. Human Rights Council, Thirty-seventh session (26 February-23 March 2018), Database of all business enterprises involved in the activities detailed in paragraph 96 of the report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem, Report of the United Nations High Commissioner for Human Rights. For some names of companies that might be included in a database, see Itamar Eichner, "Top companies face UN blacklist over operations in settlements," Ynetnews, February 12, 2019; Tovah Lazaroff, "Companies on UNHRC settler blacklist: We're doing nothing wrong," jpost.com, October 26, 2017. 30.
|
|
Nick Cumming-Bruce, "U.N. Database on West Bank Is Postponed," New York Times, March 6, 2019. 31.
|
|
Peter Baker, "A Defiant Israel Vows to Expand Its Settlements," New York Times, December 27, 2016. 32.
|
|
Amir Prager, "The Decisions by Ireland and Chile to Ban Products from the Settlements," Institute for National Security Studies Insight No. 1142, February 26, 2019. 33.
|
|
"Canada to appeal ruling that settlement wines can't be labeled 'Made in Israel,'" Times of Israel, September 7, 2019. 34.
|
|
Chuck Freilich, "Israel is fighting BDS the wrong way," blogs.timesofisrael.com, February 12, 2018. 35.
|
|
See, e.g., Ruth Eglash, "Jewish or democratic? Israel debates its founding principles," Washington Post, July 12, 2018; Dov Lieber, "Law Sets Israel as 'Jewish State,'" Wall Street Journal, July 20, 2018. 36.
|
|
See, e.g., Ido Aharoni, "Israel at 70: Not as isolated as Israelis think," October 1, 2018; Thrall, op. cit. footnote 1. 37.
|
|
38.
|
|
Halbfinger, op. cit., footnote 9. 39.
|
|
Dany Bahar and Natan Sachs, "How much does BDS threaten Israel's economy?" Brookings Institution, January 26, 2018. 40.
|
|
Ariel Kahana, "Bringing BDS to its knees," israelyahom.com, August 17, 2019; Yuli Novak, "The BDS Monster," haaretz.com, September 27, 2018; Maayan Jaffe-Hoffman, "What Israel is doing wrong in the battle against BDS," jpost.com, August 9, 2019. 41.
|
|
"SodaStream Leaves West Bank as CEO Says Boycott Antisemitic and Pointless," theguardian.com, September 2, 2015. 42.
|
|
"SodaStream fires last Palestinian workers after permit row," Agence France Presse, February 29, 2016. 43.
|
|
"SodaStream bringing 74 West Bank Palestinians back to work at Negev plant," Jewish Telegraphic Agency, May 23, 2017. 44.
|
|
See, e.g., David Horovitz, "Victory for BDS as SodaStream's last Palestinian workers lose their jobs," Times of Israel, February 29, 2016. 45.
|
|
See, e.g., Human Rights Watch, Occupation, Inc.: How Settlement Businesses Contribute to Israel's Violation of Palestinian Rights, 2016. 46.
|
|
Nathan Thrall, "How the Battle Over Israel and Anti-Semitism Is Fracturing American Politics," New York Times Magazine, March 28, 2019. 47.
|
|
Ilanit Chernick, "Fighting BDS online," jpost.com, June 16, 2019; "Israel battles BDS with viral videos," i24News, November 6, 2019; Amir Tibon, "'We Are Working on Foreign Soil and Have to Be Very Cautious': Shelved Al Jazeera Film Details Israel's 'Covert War' Against BDS in U.S.," haaretz.com, October 23, 2018; Lidar Grave-Lazi, "First Situation Room to Combat BDS Opens in US," jpost.com, January 24, 2017. 48.
|
|
Cathryn J. Prince, "Israel hosts first-ever anti-BDS conference at UN," Times of Israel, June 1, 2016; Ben Sales, "Thousands gather at United Nations to oppose BDS," Jewish Telegraphic Agency, March 29, 2017. 49.
|
|
Ruth Levush, "Israel: Prevention of Entry of Foreign Nationals Promoting Boycott of Israel," Law Library of Congress Global Legal Monitor, March 17, 2017. 50.
|
|
Human Rights Watch, "Israel: Supreme Court Greenlights Deporting Human Rights Watch Official," November 5, 2019. 51.
|
|
The student cited her decision to enroll at an Israeli university as evidence that she no longer held pro-BDS views. Lila Margalit, "Israel's Supreme Court Hands a Victory to Lara Alqasem, But the Future of Foreigners' Free Speech Remains Uncertain," Lawfare, November 14, 2018. 52.
|
|
Niraj Chokshi, "The Anti-Boycott Law Israel Used to Bar Both Omar and Tlaib," nytimes.com, August 15, 2019. During the week before Israel decided to bar Representatives Tlaib and Omar, Israel's ambassador to the United States Ron Dermer had said that their trip would be permitted. Some observers have asserted that the Trump Administration may have influenced the changed Israeli decision. Israel informed Representative Tlaib that she would be permitted to visit family in the West Bank if she refrained from political criticism of Israel during the trip, but she declined coming under those conditions. 53.
|
|
See, e.g., Dennis Ross and Stuart Eizenstat, "Israel should resist Trump's efforts to politicize support," The Hill, August 22, 2019. 54.
|
|
Biz Carson, "Airbnb Boycotted and Sued for Discrimination Following Israel Settlement Ban," forbes.com, December 11, 2018. 55.
|
|
Julia Jacobs, "Airbnb Reverses Its Policy Banning Listings in Settlements in the West Bank," New York Times, April 11, 2019. 56.
|
|
For more information, see CRS In Focus IF10038, Trade Promotion Authority (TPA), by Ian F. Fergusson. 57.
|
|
Sarah Saadoun, "Don't Protect Israeli Settlement Trade," The Hill, May 15, 2015; Melissa Apter, "Home Run for Cardin," Baltimore Jewish Times, April 30, 2015; Lara Friedman, "The Stealth Campaign in Congress to Support Israeli Settlements," December 1, 2015. 58.
|
|
Full text of statement cited by an AP reporter at https://twitter.com/APDiploWriter/status/615969535087218688, June 30, 2015. 59.
|
|
See, e.g., a presidential signing statement for P.L. 114-125 (H.R. 644) at https://obamawhitehouse.archives.gov/the-press-office/2016/02/25/signing-statement-hr-644. 60.
|
|
61.
|
|
Office of Senator Ben Cardin, Cardin, Portman Amend Israel Anti-Boycott Act, March 3, 2018. 62.
|
|
See https://www.aclu.org/sites/default/files/field_document/aclu_letter_on_revised_s._720_-_3-6-18.pdf. 63.
|
|
64.
|
|
Amir Tibon, "Anti-BDS Bill Passed Senate, but Trouble Awaits in House," haaretz.com, February 10, 2019. 65.
|
|
Marco Rubio, "The Truth About B.D.S. and the Lies About My Bill," New York Times, February 5, 2019; Ron Kampeas, "Congress tackles the anti-Israel boycott, but bipartisanship is fleeting," Jewish Telegraphic Agency, July 19, 2019. 66.
|
|
67.
|
|
Kampeas, op. cit. footnote 14. 68.
|
|
States in which this is the case include Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Nevada, New Jersey, North Carolina, Ohio, and Texas. 69.
|
|
States that have measures to this effect include Arizona, Arkansas, Colorado, Florida, Illinois, Indiana, Iowa, Nevada, New Jersey, New York, North Carolina and Texas. 70.
|
|
States that have measures to this effect include Alabama, Arizona, Arkansas, Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Nevada, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, and Wisconsin. California enacted legislation in September 2016 that requires parties seeking state contracts to certify that any policy that they have adopted against a sovereign nation or people (including Israel) is not discriminatory under specified civil rights or employment and housing legislation. 71.
|
|
72.
|
|
This section was authored by Martin A. Weiss, Specialist in International Trade and Finance. 73.
|
See CRS Report RL33961, Arab League Boycott of Israel, by Martin A. Weiss |
See, e.g., Lidar Grave-Lazi, "First Situation Room to Combat BDS Opens in US," jpost.com, January 24, 2017. |
| 20. |
Ruthie Blum, "Israel's Outgoing Foreign Ministry Chief Dispels 'Myth' of Jewish State's Diplomatic Isolation," Algemeiner, October 20, 2016. |
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| 21. |
Avishai, op. cit. |
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| 22. |
Sangwon Yoon, "The Boycott Israel Movement May be Failing," Bloomberg, June 2, 2016. |
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| 23. |
"SodaStream Leaves West Bank as CEO Says Boycott Antisemitic and Pointless," theguardian.com, September 2, 2015. |
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| 24. |
"SodaStream fires last Palestinian workers after permit row," Agence France Presse, February 29, 2016. |
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| 25. |
"SodaStream bringing 74 West Bank Palestinians back to work at Negev plant," Jewish Telegraphic Agency, May 23, 2017. |
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| 26. |
See, e.g., David Horovitz, "Victory for BDS as SodaStream's last Palestinian workers lose their jobs," Times of Israel, February 29, 2016. |
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| 27. |
See, e.g., Human Rights Watch, Occupation, Inc.: How Settlement Businesses Contribute to Israel's Violation of Palestinian Rights, 2016. |
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| 28. |
See, e.g., Lahav Harkov, "Netanyahu says Israel's image improving as he defends Foreign Ministry's diplomatic efforts," Jerusalem Post, July 26, 2016. |
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| 29. |
Daniel Estrin, "Covertly, Israel prepares to fight boycott activists online," Associated Press, February 17, 2016. |
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| 30. |
Ibid.; Ben Caspit, "Did Israel's reaction to BDS drive movement's growth?" Al-Monitor Israel Pulse, April 27, 2016. |
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| 31. |
Caspit, "Did Israel's reaction to BDS drive movement's growth?" op. cit. |
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| 32. |
Grave-Lazi, op. cit.; "Saban said to quit anti-BDS campus initiative he launched with Adelson," Jewish Telegraphic Agency/Times of Israel, October 1, 2015. |
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| 33. |
Cathryn J. Prince, "Israel hosts first-ever anti-BDS conference at UN," Times of Israel, June 1, 2016. |
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| 34. |
Joshua Mitnick, "Law in Israel bans boycott backers," Los Angeles Times, March 7, 2017. |
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| 35. |
Ibid. |
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| 36. |
According to the European Commission's Directorate General for Trade, for 2015 the countries of the European Union accounted for 30.2% of Israel's total trade volume, while the United States accounted for 20.5%. Document available at http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_113402.pdf. General EU-Israel trade information is available at http://ec.europa.eu/trade/policy/countries-and-regions/countries/israel/. |
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| 37. |
Hugh Lovatt and Mattia Toaldo, "EU Differentiation and Israeli Settlements," European Council on Foreign Relations (ECFR), July 2015. According to one report, the EU has excluded products from settlements from trade preferences for over a decade. "EU sets rule for labeling products made in West Bank settlements," Al Jazeera, November 11, 2015. Additionally, various EU governments have cautioned investors about legal, political, and economic risks supposedly involved in doing business with Israeli settlements. Andrew Rettman, "EU states promote settler boycott amid Israel crisis," EUObserver, July 4, 2014. |
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| 38. |
The labeling rules are required for fresh fruit and vegetables, wine, honey, olive oil, eggs, poultry, organic products, and cosmetics; and are optional for pre-packaged foodstuffs and the majority of industrial products. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 39. |
The text of the notice is available at http://eeas.europa.eu/delegations/israel/documents/news/20151111_interpretative_notice_indication_of_origin_of_goods_en.pdf, and the factsheet at http://eeas.europa.eu/delegations/israel/documents/news/20151111_indication_of_origin_fact_sheet_final_en.pdf. According to one report, "EU foreign ministers made the decision in 2012 but Brussels has repeatedly delayed producing its guidelines, saying it was working on the details." Rory Jones, "Israel Decries EU Label Rules For Settlers," Wall Street Journal, November 12, 2015. In April 2015, 16 of 28 foreign ministers of EU member states signed a letter encouraging EU foreign policy chief Federica Mogherini to issue the notice, and the European Parliament passed a nonbinding resolution in support of this step in September 2015. |
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| 40. |
Jones, op. cit. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 41. |
Text of statement available at http://mfa.gov.il/MFA/PressRoom/2015/Pages/Israel-condemns-EU-decision-on-labeling-11-Nov-2015.aspx. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 42. |
Ori Lewis, "Israel says has mended fences with EU in Netanyahu-Mogherini call," Reuters, February 12, 2016. |
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| 43. |
William Booth, "A Furor over Redefining 'Made in Israel,'" Washington Post, November 12, 2015. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 44. |
Andrew Rettman and Peter Teffer, "EU Shops to Mark 'Israeli Settlement' Products," EUObserver, November 11, 2015. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 45. |
Text of letter available at http://www.cruz.senate.gov/files/documents/Letters/20151109_EU_IsraelLetter.pdf. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 46. |
Bradley Klapper, "US OK With New EU Labeling Rule for Israeli Settlement Goods," Associated Press, November 12, 2015. At a daily press briefing the day before the European Commission issued its labeling notice, the deputy spokesperson had said that it could be "perceived as a step on the way" to a boycott. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 47. |
Ibid. See also U.S. Customs and Border Protection, op. cit. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 48. |
Nigel Wilson, "Israel: EU labelling rules have 'non-existent impact,'" Al Jazeera, December 12, 2016. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 49. |
"EU sets rule for labeling products made in West Bank settlements," op. cit. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 50. |
Wilson, op. cit. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 51. |
See, e.g., Teodora Coptil, "EU-Israel relations: Trojan horses, snakes, ladders and boycotts," European Jewish Press, May 25, 2017; Sarah Leah Whitson, "Chipping Away at 50 Years of Occupation," Public Diplomacy Magazine, June 5, 2017. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 52. |
Hugh Lovatt, "EU differentiation and the push for peace in Israel-Palestine," European Council on Foreign Relations, October 31, 2016. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 53. |
Ibid. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 54. |
Benjamin Weinthal, "European Affairs: BDS spreading like wildfire in Europe?" Jerusalem Post, March 5, 2016. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 55. |
See, e.g., Jodi Rudoren, et al., "E.U. Move Fans Fear of Boycott Aimed at Israel," New York Times, November 12, 2015; Lovatt and Toaldo, op. cit. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 56. |
Andrew Rettman, "EU Diplomats Blame Israel for Jerusalem Volatility," EUObserver, January 27, 2017. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 57. |
United States-Israel Free Trade Area Implementation Act of 1985 (P.L. 99-47), as amended in 1996 by P.L. 104-234 (West Bank and Gaza Strip Free Trade Benefits). The text of the IFTA is available at http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005439.asp. The IFTA rules of origin specify that products are eligible for duty-free treatment if (1) the product is the growth, product, or manufacture of a party, or a new or different article of commerce that has been grown, treated, or manufactured in a party; (2) imported directly from one party to another party; and (3) the cost or value of the materials plus the direct costs of processing operations is not less than 35% of the appraised value of the product. |
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| 58. |
U.S. Customs and Border Protection, West Bank Country of Origin Marking Requirements, Cargo Systems Messaging Service #16-000047, January 23, 2016. Previous executive branch guidance on the subject had been provided via Treasury Decision (T.D.) 95-25, available at http://www.gpo.gov/fdsys/pkg/FR-1995-04-06/html/95-8454.htm; T.D. 97-16, available at http://www.gpo.gov/fdsys/pkg/FR-1997-03-14/pdf/97-6434.pdf; and Presidential Proclamation 6955 of November 13, 1996, available at http://www.gpo.gov/fdsys/pkg/FR-1996-11-18/pdf/96-29613.pdf. |
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| 59. |
Lara Friedman, "Settlement Product Labeling Policies, U.S. vs. EU," Americans for Peace Now, January 27, 2016. See also David Horovitz, "'There's a general condemnation of the West that you hear in many places: Is America withdrawing, is the West withdrawing?'" Times of Israel, February 23, 2016. |
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| 60. |
For more information, see CRS In Focus IF10038, Trade Promotion Authority (TPA), by [author name scrubbed]. |
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| 61. |
Sarah Saadoun, "Don't Protect Israeli Settlement Trade," The Hill, May 15, 2015; Melissa Apter, "Home Run for Cardin," Baltimore Jewish Times, April 30, 2015; Lara Friedman, "The Stealth Campaign in Congress to Support Israeli Settlements," December 1, 2015. |
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| 62. |
Full text of statement cited by an AP reporter at https://twitter.com/APDiploWriter/status/615969535087218688, June 30, 2015. |
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| 63. |
See, e.g., a presidential signing statement for P.L. 114-125 (H.R. 644) at https://obamawhitehouse.archives.gov/the-press-office/2016/02/25/signing-statement-hr-644. |
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| 64. |
This is the case in Arizona, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Nevada, New Jersey, Ohio, and Texas. |
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| 65. |
See, e.g., https://peacenow.org/WP/wp-content/uploads/State-BDS-and-Settlement-legislation-table.pdf. |
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| 66. |
States that have enacted legislation to this effect include Arizona, Arkansas, Colorado, Florida, Illinois, Indiana, Iowa, Nevada, New Jersey, and Texas. |
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| 67. |
See the text of Executive Order 157, signed on June 5, 2016, at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_157_new.pdf. |
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| 68. |
States that have enacted legislation to this effect include Alabama, Arizona, Arkansas, Florida, Georgia, Iowa, Michigan, Nevada, Ohio, Pennsylvania, Rhode Island, South Carolina, and Texas. California enacted legislation in September 2016 that requires parties seeking state contracts to certify that any policy that they have adopted against a sovereign nation or people (including Israel) is not discriminatory under specified civil rights or employment and housing legislation. |
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| 69. |
See http://www.ajc.org/site/c.7oJILSPwFfJSG/b.9394655/k.A643/Governors_United.htm. The text of the statement on which the AJC seeks governors' signatures is available at http://www.ajc.org/atf/cf/%7Bf56f4495-cf69-45cb-a2d7-f8eca17198ee%7D/GOVERNORS_AGAINST_BDS_STATEMENT.PDF. |
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| 70. |
This section was authored by [author name scrubbed], Specialist in International Trade and Finance. |
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| 71. |
|
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|
Website of the Office of Antiboycott Compliance; http://www.bis.doc.gov/AntiboycottCompliance/oacrequirements.html. |
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|
U.S. Department of Commerce, Bureau of Industry and Security, Annual Report to the Congress for Fiscal Year This section was authored by Valerie Brannon, Legislative Attorney. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 74. |
A bill of attainder is a legislative act that imposes punishment without a trial. Such acts are expressly forbidden in Article 1, Section 9 of the Constitution. Designations for the purpose of implementing sanctions are subject to due process, that is, a designated person or entity is likely entitled to notice and opportunity to be heard by a neutral decision-maker prior to the implementation of sanctions. (The process that is due depends on the severity of sanctions, among other things.) For more information, see CRS Report R40826, Bills of Attainder: The Constitutional Implications of Congress Legislating Narrowly, by [author name scrubbed]. |
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| 75. |
This section was authored by [author name scrubbed], Legislative Attorney. |
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| 76. |
|
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|
See Protect Academic Freedom Act, H.R. 4009, 113th Cong. (2014). |
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| 78. |
See supra "State Level Legislation." |
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| 79. |
Id. |
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| 80. | Recent Legislation, First Amendment – Political Boycotts – South Carolina Disqualifies Companies Supporting BDS from Receiving State Contracts, 129 Harv. L. Rev. 2029, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 81. |
Eugene Kontorovich, Can States Fund BDS?, Tablet Magazine (July 13, 2015), http://www.tabletmag.com/jewish-news-and-politics/192110/can-states-fund-bds; Eugene Volokh, Bill to block federal funding to universities that boycott Israel, Wash. Post: Volokh Conspiracy (Feb. 2, 2014), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/07/bill-to-block-federal-funding-to-universities-that-boycott-israel/; see also Marc A. Greendorfer, The Inapplicability of First Amendment Protections to BDS Movement Boycotts, 2016 Cardozo L. Rev. De Novo 112 (2016) (arguing that BDS activity against Israel should not receive First Amendment protection). |
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| 82. |
See Murdoch v. Pennsylvania, 319 U.S. 105, 108 (1943) ("The First Amendment, which the Fourteenth makes applicable to the states, declares..."). |
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| 83. |
U.S. Const. amend. I. |
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| 84. |
Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted). |
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| 85. |
U.S. Const. amend. I. |
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| 86. |
See Texas v. Johnson, 491 U.S. 397, 404 (1989) ("The First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized that its protection does not end at the spoken or written word.... Conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'") (internal citation omitted). |
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| 79.
|
|
See, e.g., Marc A. Greendorfer, Boycotting the Boycotters: Turnabout is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine, 40 Campbell L. Rev. 29 (2018); Michael C. Dorf, Anti-BDS Laws, Anti-Discrimination Laws, Subjective Legislative Intent, and the First Amendment, Dorf on Law (Feb. 25, 2019), http://www.dorfonlaw.org/2019/02/anti-bds-laws-anti-discrimination-laws.html; Eugene Kontorovich, Can States Fund BDS?, Tablet Mag. (July 13, 2015), https://www.tabletmag.com/jewish-news-and-politics/192110/can-states-fund-bds. 80.
|
|
See, e.g., Defendants-Appellees' Brief at 32, Ark. Times LP v. Waldrip, No. 19-1378 (8th Cir. May 31, 2019). Cf., e.g., Grove City Coll. v. Bell, 465 U.S. 555, 575–76 (1984) (upholding federal funding condition prohibiting discrimination against First Amendment challenge). 81.
|
|
See Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019); Ark. Times LP v. Waldrip, No. 4:18-CV-00914 BSM, 2019 U.S. Dist. LEXIS 27147 (E.D. Ark. Jan. 23, 2019), appeal filed, No. 19-1378 (8th Cir. Feb. 25, 2019); Jordahl v. Brnovich, 336 F. Supp. 3d 1016 (D. Ariz. 2018), appeal pending, No. 18-16896, 2019 U.S. App. LEXIS 28556 (9th Cir. Sep. 20, 2019) (granting motion to stay preliminary injunction because parties agreed that legislative action rendered the appeal moot); Koontz v. Watson, 283 F. Supp. 3d 1007 (D. Kan. 2018). 82.
|
|
See generally CRS Report R45700, Assessing Commercial Disclosure Requirements under the First Amendment, by Valerie C. Brannon. 83.
|
|
Cf., e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587–88 (1998) ("[A]lthough the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake."). 84.
|
N.Y. Codes R. & Regs. tit. 9, § 8.157, Executive Order No. 157, Directing State Agencies and Authorities to Divest Public Funds Supporting BDS Campaign Against Israel, signed on June 5, 2016 |
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|
|
See, e.g., Simon McCormack, Gov. Cuomo's BDS Blacklist Is an Affront to Free Expression, ACLU (June 9, 2016), https://www.aclu.org/blog/free-speech/gov-cuomos-bds-blacklist-affront-free-expression; Daniel Sieradski, Andrew Cuomo's Anti-Free Speech Move on B.D.S., N.Y. Times (June 12, 2016), https://www.nytimes.com/2016/06/13/opinion/andrew-cuomos-anti-free-speech-move-on-bds.html?emc=eta1&_r=0. Cf., e.g., Gilad Edelman, Cuomo and B.D.S.: Can New York State Boycott a Boycott?, New Yorker (June 16, 2016), https://www.newyorker.com/news/news-desk/cuomo-and-b-d-s-can-new-york-state-boycott-a-boycott (saying that "according to several prominent scholars, … the issue isn't so clear-cut"). 86.
|
|
But cf. Ali v. Hogan, No. 1:19-cv-00078, 2019 U.S. Dist. LEXIS 171670, at *1 (D. Md., Oct. 1, 2019) (resolving First Amendment challenge to Maryland Governor's 2017 executive order prohibiting state "agencies from executing procurement contracts with business entities that boycott Israel"). 87.
|
|
See, e.g., Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 572 (1995) (noting that a challenged law does not, on its face, "target speech"). |
Id. |
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| 89. |
Id. ("[The government] may not, however, proscribe particular conduct because it has expressive elements.") (emphasis in original). See also R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (striking down a state statute that prohibited certain conduct, such as cross-burning, with the intent to intimidate others on the basis of their race, gender, or religion because the statute impermissibly discriminated on the basis of viewpoint). |
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| 90. |
The act of joining together with others and agreeing not to do business with a particular entity or entities is commonly understood to constitute a boycott. Boycott, Webster's New Collegiate Dictionary (5th ed. 1977). |
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| 91. |
See FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 426 (1990). |
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| 92. |
Id. at 426-28 (holding that a boycott involving attorneys that refused to accept cases unless the fees they were paid were raised was a violation of the antitrust laws); NAACP v. Claiborne Hardware, 458 U.S. 886, 912 (1982) (observing that the Supreme Court "has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association"). |
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|
|
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) ("[T]he Court's First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct."). 89.
|
|
Holder v. Humanitarian Law Project, 561 U.S. 1, 26–27 (2010) (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997)). In some cases, the Court has suggested an even more relaxed standard may apply to generally applicable regulatory schemes that only incidentally burden speech—or that the First Amendment may not apply at all in such a situation. See, e.g., Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 469–70 (1997); Arcara v. Cloud Books, Inc., 478 U.S. 697, 706–07 (1986). 90.
|
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) |
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| 94. |
One opinion of a federal district court in 2017 does touch on the issue of whether the First Amendment is implicated by BDS activity against Israel. Bronner v. Duggan, 2017 U.S. Dist. LEXIS 48917 (D.D.C. 2017). In that case, members of the American Studies Association (ASA) brought suit against the ASA and its board members alleging that a resolution to boycott Israeli academic institutions had been improperly adopted and that its adoption constituted a breach of fiduciary duty, breach of contract, and other violations. Id. at *1-*4. The defendants claimed, among other things, that to rule against them would violate their First Amendment rights because engaging in the boycott was constitutionally protected speech. Id. at *27-*28. The district court did not examine whether boycotting Israeli academic institutions was constitutionally protected speech. Instead, the court appears to have presumed for the purposes of the case at issue that it is, and held, nonetheless, that a ruling against the defendants in these circumstances would not violate their constitutional rights. Id. at *28. The court reached this conclusion because, to trigger First Amendment protection, the alleged infringement must have arisen from state action, and "the Court's passive enforcement of the obligations expressly assumed by the parties does not constitute state action" Id. at *28-*29. |
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| 95. |
See Recent Legislation, supra note 79 (arguing that BDS activity is protected speech); Greendorfer, supra note 80 (arguing that BDS activity is not protected speech); Kontorovich, supra note 80 (arguing the state legislation directed at BDS activity does not violate the First Amendment); Volokh, supra note 80 (arguing the federal legislation directed at BDS activity would not violate the First Amendment). |
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| 96. |
Gilad Edelman, Cuomo and B.D.S.: Can New York State Boycott a Boycott?, The New Yorker (June 16, 2016), http://www.newyorker.com/news/news-desk/cuomo-and-b-d-s-can-new-york-state-boycott-a-boycott (quoting Professor Ronald Collins as saying "[while] I wouldn't say categorically that there's a First Amendment violation here, I would say that it raises a number of thorny First Amendment issues" and quoting other law professors describing the complexity of the question surrounding possible constitutional protection for BDS activity). |
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|
|
Id. at 2227. It is possible that a law targeting speech would nonetheless be content-neutral. For example, the Supreme Court has said that "a prohibition against the use of sound trucks emitting 'loud and raucous' noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising." Cincinnati v. Discovery Network, 507 U.S. 410, 428 (1993) (quoting Kovacs v. Cooper, 336 U.S. 77, 87 (1949)). 92.
|
|
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). 93.
|
|
Texas v. Johnson, 491 U.S. 397, 404 (1989); see also id. at 406 (holding that flag burning is expressive conduct and that a government law prohibiting this conduct because of its expressive elements was subject to strict scrutiny). 94.
|
|
See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001) ("We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker."). 95.
|
|
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015) (quoting Bd. of Regents v. Southworth, 529 U.S. 217, 229 (2000)) (internal quotation marks omitted). 96.
|
|
See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 39 (2010) (holding that a law prohibiting material support for foreign terrorist organizations could apply to certain types of speech without violating the First Amendment). 97.
|
|
See, e.g., R.A.V. v. St. Paul, 505 U.S. 377, 382–83 (1992) (recognizing that the government may regulate a few limited categories of speech based on their content, including obscenity, defamation, and fighting words). See generally CRS In Focus IF11072, The First Amendment: Categories of Speech, by Victoria L. Killion. 98.
|
|
Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748, 762 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1973)). 99.
|
|
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 561 (1980). |
See Palestine Legal and Ctr. for Constitutional Rights, The Palestine Exception to Free Speech at 34-5 (2015), available at https://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/560c2e0ae4b083d9c363801d/1443638794172/Palestine+Exception+Report+Final.pdf (arguing that BDS activity against Israel is protected speech). |
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| 98. |
458 U.S. 886 (1982). |
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|
Id |
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See | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 103.
|
|
See, e.g., NLRB v. Retail Store Emps. Union, 447 U.S. 607, 616 (1980). 104.
|
NAACP v. |
105.
|
Id. |
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|
Id. at 915. Although the Supreme Court ruled on the case in 1982, the boycott began in 1966 and continued for a number of years. Id. at 898. The NAACP's petition included demands for the desegregation of public facilities and the inclusion of black people on juries—seeking to vindicate constitutionally protected rights. Id. at 899–900. 107.
|
|
Id. at 889–93. |
See Claiborne Hardware, 458 U.S. at 914 (holding that the state's ability to regulated "economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott"); see also supra "The BDS Movement." |
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| 103. |
See Greendorfer, supra note 80 at 116 (distinguishing the boycott at issue in Claiborne Hardware from BDS activity). |
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| 104. |
Claiborne Hardware, 458 U.S. at 913. |
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| 105. |
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|
Id. The National Labor Relations Act "protects the right to strike or picket a primary employer—an employer with whom a union has a labor dispute," but prohibits secondary boycotts against "neutral employers," making it "unlawful for a union to coerce a neutral employer to force it to cease doing business with a primary employer." Secondary Boycotts (Section 8(b)(4)), Nat'l Labor Relations Bd., https://www.nlrb.gov/rights-we-protect/whats-law/unions/secondary-boycotts-section-8b4 (last visited Dec. 2, 2019). While the Supreme Court has recognized that activities such as "peaceful consumer picketing at secondary sites" may be protected by the First Amendment and are not within the scope of the federal prohibition, NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 63 (1964), it has generally upheld the ban on secondary boycotts as applied to conduct that "spreads labor discord by coercing a neutral party to join the fray." NLRB v. Retail Store Emps. Union, 447 U.S. 607, 616 (1980). 111.
|
|
Claiborne Hardware, 458 U.S. at 912. 112.
|
|
Id. at 913. The Court also ruled that even though some participants in the boycott engaged in unlawful and unprotected violence, this was not sufficient to "taint … the entire collective effort." Id. at 933. 113.
|
|
FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 414 (1990). |
See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 28-30 (2010) (deferring to the judgment of Congress that restrictions on the provision of material support, even in the form of speech, to foreign terrorist organizations, would advance the government's interest in combatting terrorism); Intel Containers Int'l Corp. v. Huddleston, 507 U.S. 60, 76 (1993) ("[The] nuances of foreign policy 'are much more the province of the Executive Branch and Congress than of this Court.'") (quoting Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 196 (1983)). |
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| 108. |
Claiborne Hardware, 458 U.S. at 915 n. 49. |
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| 109. |
See id. |
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| 110. |
Greendorfer, supra note 80 at 119. See also Kontorovich, supra note 80 (arguing that Claiborne Hardware is not applicable to restrictions on government contracting with or investment in those engaged in BDS activity and that existing statutory prohibitions against boycotts are justified for similar reasons as BDS restrictions, making restrictions on BDS activity arguably permissible). |
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| 111. |
456 U.S. 212 (1982). |
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Id |
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|
Id. |
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| 115. |
Id. (citing NLRB v. Retail Store Employees, 447 U.S. 607, 616 (1980); American Radio Ass'n v. Mobile S.S. Ass'n, 419 U.S. 215, 229-231 (1974). |
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| 117.
|
|
547 U.S. 47, 65 (2006). |
Id. at 51. |
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|
See | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 120.
|
|
547 U.S. at 51–52. 121.
|
|
FAIR, 547 U.S. at 53. 122.
|
|
Id. at 68. The Court held that the funding limitation did not violate the unconstitutional conditions doctrine because "the First Amendment would not prevent Congress from directly imposing" this requirement. Id. at 60. 123.
|
|
Id. at 64–65 (emphasis added). Accord id. at 66 ("[T]he conduct regulated by the Solomon Amendment is not inherently expressive."). 124.
|
|
Id. at 66. 125.
|
|
Id. at 62. 126.
|
|
No. 4:18-CV-00914 BSM, 2019 U.S. Dist. LEXIS 27147, at *2, 9 (E.D. Ark. Jan. 23, 2019), appeal filed, No. 19-1378 (8th Cir. Feb. 25, 2019). Cf. Ali v. Hogan, No. 1:19-cv-00078, 2019 U.S. Dist. LEXIS 171670, at *12 (D. Md., Oct. 1, 2019) (dismissing challenge to anti-BDS order on justiciability grounds, given the fact that during arguments in the case, the government had advanced a narrower construction of the order that might not infringe protected speech). 127.
|
|
Amawi, 2019 U.S. Dist. LEXIS 27147, at *10. 128.
|
|
Id. at *12. 129.
|
|
Id. at *12–13. 130.
|
|
Id. at *16. 131.
|
|
Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 745 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1042 (D. Ariz. 2018), appeal pending, No. 18-16896, 2019 U.S. App. LEXIS 28556 (9th Cir. Sep. 20, 2019) (granting motion to stay preliminary injunction because parties agreed that legislative action rendered the appeal moot); Koontz v. Watson, 283 F. Supp. 3d 1007, 1024 (D. Kan. 2018). 132.
|
|
Amawi, 373 F. Supp. 3d at 745. 133.
|
|
Id. at 743. 134.
|
|
Id. at 744 (quoting NAACP v. Claiborne Hardware, 458 U.S. 886, 907–08, 911 (1982)). 135.
|
|
Id. |
See Greendorfer, supra note 80 at 120 (arguing that the Export Administration Act (EAA) prohibits boycotts against Israel); Edelman, supra note 95; but see Recent Legislation, supra note 79 at 2037-38 (arguing that the EAA might be unconstitutional under current precedent and distinguishing the activity prohibited by the EAA from BDS activity). |
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| 119. |
The EAA expired in 1994 and, after a brief reauthorization, again in 2001, but regulations issued pursuant to the EAA have remained in effect pursuant to executive orders issued under separate authorities. P.L. 96-72, §8(a)(1) (1979); John T. Masterson Jr., Office of the Chief Counsel for Indus. and Sec., Legal Authority: Export Administration Regulations 2 n.1 (2016). The Ribicoff Amendment to the Tax Reform Act of 1976 might also be of interest because it creates a disincentive to participate in "an international boycott" by denying certain tax advantages to those persons. P.L. 94-455, §1061 (1976) (codified as amended at 26 U.S.C. §999). |
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| 120. |
P.L. 96-72, §8(a)(1) (1979); Masterson Jr., supra note 118, at 2 n.1. |
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| 121. |
Briggs & Stratton Corp. v. Baldridge, 728 F. 2d 915 (7th Cir. 1984); Trane v. Baldridge, 552 F. Supp. 1378 (W.D. Wis. 1983); Briggs & Stratton Corp. v. Baldridge, 539 F. Supp. 1307 (E.D. Wis. 1982). |
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| 122. |
Briggs, 728 F. 2d at 918. |
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| 123. |
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 562-63 (1980) ("The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression."). |
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| 124. |
Briggs, 728 F. 2d at 917. |
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|
Id |
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|
Id |
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|
|
336 F. Supp. 3d 1016, 1042 (D. Ariz. 2018), appeal pending, No. 18-16896, 2019 U.S. App. LEXIS 28556 (9th Cir. Sep. 20, 2019) (granting motion to stay preliminary injunction because parties agreed that legislative action rendered the appeal moot). 139.
|
|
Id. (quoting Ariz. Rev. Stat. § 35-393(1)(a)). 140.
|
|
Id. (quoting NAACP v. Claiborne Hardware, 458 U.S. 886, 907 (1982)). 141.
|
|
Id. |
P.L. 96-72, §8(a)(1) (1979). See Recent Legislation, supra note 94 at 2038 ("A key feature of [the EAA] is that they apply only to boycotts organized by foreign nations against allies of the United States.... By contrast, BDS is led by civil society groups, not foreign sovereigns or terrorist organizations."). |
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| 128. |
See supra "The BDS Movement." |
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|
Id |
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| 134. |
Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321, 2327-28 (2013) ("The [Spending] Clause provides Congress broad discretion to tax and spend for the 'general welfare,' including by funding particular state or private programs or activities. That power includes the authority to impose limits on the use of such funds to ensure they are used in the manner Congress intends."). |
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| 135. |
Id. at 2328 (striking down a requirement that a recipient of federal funds adopt a policy of advocating "abstinence only" that applied to the entire organization, rather than only to the portion of the organization that was implementing the federally funded program). |
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| 136. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 137. |
Kontorovich, supra note 80; Volokh, supra note 80. Laws prohibiting discrimination on the basis of affiliation with Israel are arguably not wholly analogous to prohibitions on discrimination on the basis of race, sex, religion, gender or sexual orientation. Courts generally consider traits like race, religion, sex, and national origin to be immutable characteristics, either unchangeable as a result of birth or central to a person's identity, and afford them a higher degree of constitutional protection. See Fronteiro v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion) ("Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities on the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility....'") (internal citations omitted); see also Jessica A. Clarke, Against Immutability, 125 Yale L.J. 4 (2015) (outlining the concept of immutability in court decisions and arguing against its use); Tiffany C. Graham, The Shifting Doctrinal Face of Immutability, 19 Va. J. Soc. Pol'y & L. 169, 173 (2011) (also discussing immutability and approving of its use to guide court analysis). It might be argued that discrimination on the basis of affiliation with Israel is discrimination on the basis of national origin. See Edelman, supra note 95. However, if it is the case that discrimination against Israeli-affiliated companies is synonymous with discrimination on the basis of national origin, such a finding might throw the constitutionality of other existing prohibitions in doubt. For example, there may then be questions surrounding whether a state law restricting business with Iranian companies discriminates on the basis of national origin. Id. The immutable characteristic of natural origin as applied to individual persons may, therefore, be different than the national origin or location of a company. |
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| 138. |
Volokh, supra note 80. |
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| 139. |
Grove City Coll. v. Bell, 465 U.S. 555, 575-76 (1984). |
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| 140. |
Id. |
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| 141. |
Christian Legal Soc'y v. Martinez, 561 U.S. 661 (2010). |
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| 147.
|
|
283 F. Supp. 3d 1007, 1024 (D. Kan. 2018). 148.
|
|
Id. at 1023. 149.
|
|
Id. at 1024. 150.
|
|
Id. 151.
|
|
Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 745 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1042 (D. Ariz. 2018), appeal pending, No. 18-16896, 2019 U.S. App. LEXIS 28556 (9th Cir. Sep. 20, 2019) (granting motion to stay preliminary injunction because parties agreed that legislative action rendered the appeal moot); Koontz, 283 F. Supp. at 1024. 152.
|
|
Ark. Times LP v. Waldrip, No. 4:18-CV-00914 BSM, 2019 U.S. Dist. LEXIS 27147, at *9 (E.D. Ark. Jan. 23, 2019), appeal filed, No. 19-1378 (8th Cir. Feb. 25, 2019). 153.
|
|
See supra note 151. 154.
|
|
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015). 155.
|
|
See, e.g., Regan v. Taxation with Representation, 461 U.S. 540, 545 (1983) (holding that Congress could permissibly decide not to exclude lobbying activities from tax exemption). 156.
|
|
Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995). 157.
|
|
500 U.S. 173, 193 (1994). 158.
|
|
Id. 159.
|
|
Regan, 461 U.S. at 548 (quoting Cammarano v. United States, 358 U.S. 498, 513 (1959)). 160.
|
|
Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998) (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991)). 161.
|
|
See, e.g., Regan, 461 U.S. at 550. 162.
|
|
Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205, 213 (2013) (quoting U.S. Const. art. I, § 8, cl. 1). 163.
|
|
E.g., Rust v. Sullivan, 500 U.S. 173 (1991). 164.
|
|
Speiser v. Randall, 357 U.S. 513, 526 (1958). See also id. (noting that unconstitutional conditions on funding would "produce a result which the State could not command directly"). See generally South Dakota v. Dole, 483 U.S. 203, 207–08 (1987) (outlining four limitations on Congress's ability to condition its spending). 165.
|
|
Perry v. Sindermann, 408 U.S. 593, 597 (1972). 166.
|
|
See, e.g., United States v. Am. Library Ass'n, 539 U.S. 194, 203 (2003). 167.
|
|
See, e.g., Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 748 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019). 168.
|
|
570 U.S. 205, 213 (2013). |
Id |
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|
Id |
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|
Id. at 217–18. |
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|
Id |
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|
Id |
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See | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 176.
|
|
Edelman, supra note 85 (quoting All. for Open Soc'y Int'l, Inc., 570 U.S. at 214–15) (internal quotation mark omitted). 177.
|
|
See, e.g., Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1029 (D. Ariz. 2018). 178.
|
|
Amawi, 373 F. Supp. 3d at 748. 179.
|
|
Koontz v. Watson, 283 F. Supp. 3d 1007, 1024 (D. Kan. 2018). 180.
|
|
See, e.g., Brief of Amici Curiae Council on American Islamic Relations and Bahia Amawi in Support of Appellant at 12, Ark. Times LP v. Waldrip, No. 19-1378 (8th Cir. Apr. 15, 2019). 181.
|
|
Brief of Amicus Curiae American Jewish Committee in Support of Defendants-Appellants at 18, Amawi, No. 19-50384 (5th Cir. Sept. 6, 2019). 182.
|
|
But cf. Amawi, 373 F. Supp. 3d at 748 (stating that a law may be upheld as government speech only if it advances permissible goals, and holding that the challenged anti-BDS law "was not enacted to advance a permissible goal of government"). |
See Recent Legislation, supra note 79 at 2031-32; Gray, supra note 79 (quoting a legal advocate as arguing that funding restrictions related to BDS activity would be an unconstitutional restriction on speech); Abraham H. Foxman, Op-Ed: Comprehensive Approach to Fighting BDS is Needed, Jewish Telegraphic Agency (May 29, 2015) ("Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down. A decision by a private body to boycott Israel, as despicable as it may be, is protected by our Constitution."). |
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| 149. |
See Regan v. Taxation with Representation, 461 U.S. 540, 550 (1983) (upholding a denial of a tax deduction for lobbying, but pointing out that the restriction on the availability of the deduction would likely be unconstitutional if the denial of funding was aimed "at the suppression of dangerous ideas"). |
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| 150. |
|
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|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 185.
|
|
See id. at 421–22 ("Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created."). 186.
|
|
Pickering, 391 U.S. at 568. 187.
|
|
Id. This balancing test also applies to independent contractors, although the fact that the worker is a contractor rather than an employee may be relevant in the application of the balancing test. Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668, 678 (1996). 188.
|
|
See Pickering, 391 U.S. at 568. 189.
|
|
United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 467 (1995). 190.
|
|
Id. at 466–67. 191.
|
|
Id. at 459–60. 192.
|
|
Id. at 467. |
See id. at 193-95 (upholding restrictions on communications about and referrals for abortions within a federally-funded family planning program); see also Regan, 461 U.S. at 550-51 (finding that Congress could choose not to provide tax incentives to lobbying speech while providing those tax incentives to other kinds of speech without running afoul of the First Amendment). See CRS Report R44797, The Federal Government's Authority to Impose Conditions on Grant Funds, by [author name scrubbed] (listing four limitations on the government's power to place conditions on federal funding: "(1) "the condition must be unambiguously established ...; (2) [it must] be germane to the federal interest in the particular national projects or programs to which the money is directed; (3) [it must] not violate a separate constitutional provision, such as the First Amendment ...; and (4) [it must] not cross the line from enticement to coercion...."). |
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| 153. |
Rust, 500 U.S. at 198. |
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| 154. |
Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321 (2013); see also FCC v. League of Women Voters, 468 U.S. 364 (1984) (holding that the government could not prohibit radio broadcast stations that received some portion of their operating budgets from public funds from editorializing with private donations.). |
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| 155. |
Agency for Int'l Dev., 133 S. Ct. at 2332. |
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| 156. |
See supra "State Level Legislation." |
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|
Id. at 468. |
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|
|
Id. at 475 (quoting Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994)) (internal quotation mark omitted). 195.
|
|
Id. However, the Court ruled only that the honoraria ban could not be applied to the parties before the Court, leaving open the question of whether it could constitutionally be applied to more senior officials. Id. at 475–76. |
Kontorovich, supra note 80; Edelman, supra note 95 (discussing constitutional issues that might be raised by New York governor's executive order directing state agencies to cease doing business with entities that support the BDS movement). |
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| 159. |
See 42 U.S.C. §2000e-2 (prohibiting employers from discriminating against an individual because of the "individual's race, color, religion, sex, or national origin"); Exec. Order No. 11,246, 30 Fed. Reg. 12319, 12935 (1965). |
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|
|
Janus v. Am. Fed'n of State, Cty., and Mun. Emps., Council 31, 138 S. Ct. 2448, 2472 (2018). 197.
|
|
See discussion supra, "Boycotts as Conduct or Expressive Activity." 198.
|
|
See, e.g., Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 753 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1045 (D. Ariz. 2018), appeal pending, No. 18-16896, 2019 U.S. App. LEXIS 28556 (9th Cir. Sep. 20, 2019) (granting motion to stay preliminary injunction because parties agreed that legislative action rendered the appeal moot); Koontz v. Watson, 283 F. Supp. 3d 1007, 1021 (D. Kan. 2018). But at least one trial court that has concluded that the state law it was considering did not infringe on expressive activity protected by the First Amendment. Ark. Times LP v. Waldrip, No. 4:18-CV-00914 BSM, 2019 U.S. Dist. LEXIS 27147, at *14 (E.D. Ark. Jan. 23, 2019), appeal filed, No. 19-1378 (8th Cir. Feb. 25, 2019). 199.
|
|
Amawi, 373 F. Supp. 3d at 753. 200.
|
|
See, e.g., id. at 753. |
See Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668, 685 (1996) (holding that "independent contractors do enjoy some First Amendment protection..."); O'Hare Trucking Serv. Inc. v. City of Northlake, 518 U.S. 712, 720-21 (1996) (finding that the government may not condition the contracting relationship on party affiliation "unless it has some justification beyond dislike of the individual's political association"); see also Recent Legislation, supra note 79 at 2033-34. |
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| 161. |
Umbehr, 518 U.S. at 685. |
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| 162. |
Id. |
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| 163. |
|
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|
Id |
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|
Id. |
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|
Id. |
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|
Id | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 169. |
See supra "State Level Legislation." |
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| 170. |
N.Y. Executive Order 157, signed on June 5, 2016, at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_157_new.pdf. |
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| 171. |
See Edelman, supra note 95 (observing while analyzing Governor Cuomo's executive order that "[the] first challenge is figuring out whether companies that join B.D.S. are engaging in free speech at all.... But, even if the courts would view B.D.S. as a form of free speech, that doesn't necessarily mean Cuomo's order is unconstitutional."). |
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| 172. |
Id. (quoting Alphonso David, counsel to Governor Cuomo, "[BDS activity] is not protected speech ... [It] is conduct that is being advanced to inflict economic harm."); Kontorovich, supra note 80 ("The new laws relate to state contracting and public pension funds' investments. They simply limit a state's business relationships with companies that discriminatorily limit their own business relations. These laws do not prohibit any kind of speech."). |
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| 173. |
Edelman, supra note 95 (quoting one legal scholar as characterizing the issue as raising "a number of thorny First Amendment issues"); Gray, supra note 79 (noting conflicting opinions about the constitutional protection of BDS activity). |
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| 174. |
Edelman, supra note 95. |
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| 175. |
Id. |
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| 176. |
Id. |
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| 177. |
Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, 133 S. Ct. 2321, 2328 (2013); see also Edelman, supra note 95 (describing one legal scholar as observing that "the key question is whether the government is simply stating its views or using the threat of withdrawing funding to pressure people to change their message"). |
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| 208.
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Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). 209.
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Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 748 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019); Koontz v. Watson, 283 F. Supp. 3d 1007, 1023 (D. Kan. 2018). 210.
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283 F. Supp. at 1022. 211.
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Id. 212.
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Id. at 1023. 213.
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Id. 214.
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373 F. Supp. 3d at 428, 750 (quoting Tex. Gov't Code § 808.001). 215.
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Id. at 749–51. 216.
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Id. at 751. 217.
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Id. at 750–51. 218.
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Id. at 749. 219.
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Id. at 750. 220.
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See, e.g., Mark Goldfeder, Stop Defending Discrimination: Anti-Boycott, Divestment, and Sanctions Statutes Are Fully Constitutional, 50 Tex. Tech L. Rev. 207, 230 (2018); Eugene Kontorovich, Anti-BDS Laws Don't Perpetuate Discrimination. They Prevent It., Jewish Telegraphic Agency (June 15, 2016), https://www.jta.org/2016/06/15/opinion/anti-bds-laws-dont-perpetuate-discrimination-they-prevent-it. See also Dorf, supra note 79 (agreeing that if justified on anti-discrimination grounds, anti-BDS laws are likely constitutional). Governments may also, in the future, raise other allegedly compelling state interests. For example, while applying intermediate rather than strict scrutiny, the federal district court in the Briggs & Stratton Corp. case ruled that the federal government's interest in enforcing a law preventing U.S. companies from responding to Arab League questionnaires was "substantial, involving delicate foreign policy questions and the interest of the government in forestalling attempts by foreign governments to 'embroil American citizens in their battles against others by forcing them to participate in actions which are repugnant to American values and traditions.'" Briggs & Stratton Corp. v. Baldridge, 539 F. Supp. 1307, 1319 (E.D. Wis. 1082), aff'd on other grounds, 728 F.2d 915 (7th Cir. 1984). 221.
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Some Supreme Court precedent suggests that anti-discrimination laws may not be applied to compel private speech. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 581 (1995). The Supreme Court was recently presented with a potentially similar legal question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker refused to make a cake for a same-sex wedding, violating a Colorado anti-discrimination law. 138 S. Ct. 1719 (2018). The appeal originally presented the question of whether, assuming that forcing the baker to make this cake would have compelled "speech," the state nonetheless could have justified this action in a strict scrutiny analysis. However, the Court resolved the case on narrower free-exercise grounds. Id. at 1723. Cf. Grove City Coll. v. Bell, 465 U.S. 555, 575–76 (1984) (holding that federal funding condition prohibiting discrimination on the basis of sex did not implicate any First Amendment rights). 222.
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Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (ruling that the IRS could deny a tax exemption to private schools that discriminated on the basis of race even if the denial infringed on the schools' religious beliefs and triggered a strict scrutiny analysis). 223.
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Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). 224.
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Amawi v. Pflugerville Indep. Sch. Dist., 373 F. Supp. 3d 717, 751–52 (W.D. Tex. 2019), appeal filed, No. 19-50384, (5th Cir. May 2, 2019); Koontz v. Watson, 283 F. Supp. 3d 1007, 1023 (D. Kan. 2018). 225.
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See Bob Jones Univ., 461 U.S. at 604 (holding that a denial of a tax exemption was appropriately tailored to achieve the state's compelling interest in preventing racial discrimination). 226.
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This section was authored by Jennifer K. Elsea, Legislative Attorney. |
See Edelman, supra note 95 (In analyzing New York State's executive action, quoting one legal scholar as observing that "It's one thing to say, 'We just want clean hands,' and another to try to put pressure on those entities that support the B.D.S. movement."). |
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| 179. |
This section was authored by [author name scrubbed], Legislative Attorney. |
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| 180. |
For a more in-depth overview of these issues, see CRS Report RL33948, State and Local Economic Sanctions: Constitutional Issues, by [author name scrubbed] and [author name scrubbed], from which some of the material in this section is drawn. |
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U.S. Const., Art. VI, cl. 2. |
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See generally Retail Clerks Int'l Ass'n. v. Schermerhorn, 375 U.S. 96, 103 (1963) ("The purpose of Congress is the ultimate touchstone" with respect to preemption questions). |
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P.L. 96-72, § 8, Sept. 29, 1979, 93 Stat. 521. |
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Id., previously codified at 50 USC § |
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P.L. 115-232, div. A, title XVII, 132 Stat. 2234 (Aug. 13, 2018.) 232.
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50 U.S.C. § 4842(c). |
See, e.g., Wardair Canada Inc. v. Fla. Dep't of Revenue, 477 U.S. 1, 6 (1986). |
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Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). |
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Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2501 (2012) (quoting Fla. Lime, 373 U.S. at 142-43, and Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). See also, e.g., Sprietsma v. Mercury Marine, 537 U.S. 51, 64-65 (2002); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73 (2000); Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248-49 (1984); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203-04 (1983). |
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Crosby, 530 U.S. at 373-74 (noting that such obstacles are to be identified by "examining the federal statute as a whole and identifying its purpose and intended effects"). |
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| 189. |
P.L. 110-174, 121 Stat. 2516, codified at 50 U.S.C. §1701 note. |
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U.S. Const. Art. I, § 8, cl. 3. |
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See, e.g., Cooley v. Bd. of Wardens of Port of Philadelphia, 53 U.S. 299 (1851). |
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See New York v. United States, 505 U.S. 144, 171 (1992) ("While the Commerce Clause has long been understood to limit the States' ability to discriminate against interstate commerce, that limit may be lifted…by an expression of the 'unambiguous intent' of Congress.") (internal citations omitted); South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87-93 (1984). See also Kraft Gen. Foods v. Iowa Dept. of Revenue, 505 U.S. 71, 81 (1992)("Absent a compelling justification ... a State may not advance its legitimate goals by means that facially discriminate against foreign commerce."). |
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See Japan Line, Ltd. v. Cty. of Los Angeles, 441 U.S. 434 (1979). One reason for the difference was that the state tax at issue on an instrumentality in foreign commerce "may impair federal uniformity in an area where federal uniformity is essential," or, in other words, may "prevent [] the Federal Government from 'speaking with one voice when regulating commercial relations with foreign governments.'" Id. at 446-48, 451. See also Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 194 (1983). |
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Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298 (1994) (holding that state statutes that might otherwise violate the "one voice" standard may be valid if there is no clear indication that Congress had intended to bar the state practice). The Court also suggested that "Congress may more passively indicate that certain state practices do not 'impair federal uniformity in an area where federal uniformity is essential....'" Id. at 323. Moreover, it has indicated that Congress "need not convey its intent with the unmistakable clarity required to permit state regulation that discriminates against interstate commerce...." Id. |
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See, e.g., Dep't of Revenue of Ky. v. Davis, 553 U.S. 328, 339 (2008) ("Th[e] 'market-participant' exception reflects a 'basic distinction ... between States as market participants and States as market regulators, there being no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market,'") (internal citations omitted); Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 807-10 (1976) ("Nothing in the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others."). |
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See, e.g., South-Central Timber Dev., Inc., 467 U.S. at 99 (downstream effects); United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208 (1984) (no immunity from other constitutional challenges); Reeves, Inc. v. Stake, 447 U.S. 429, 437-38, n.9 (1980) (application in Foreign Commerce Clause cases unclear). The Federal Court of Appeals for the First Circuit in National Foreign Trade Council v. Natsios, 181 F.3d 38 ( | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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United States v. Pink, 315 U.S. 203, 232 (1942). See also, e.g., Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ("The Federal Government, representing as it does the collective interests of the…states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties."). |
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389 U.S. 429 (1968). |
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Id. at 432. |
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331 U.S. 503 (1947). |
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Zschernig, 389 U.S. at 433-36. |
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Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003). |
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See id. at 415, 419-20. 251.
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See, e.g., Movsesian v. Victoria Versicherung AG, 670 F.3d 1067 (9th Circ. 2012) (applying Zschernig to rule invalid a California insurance statute extending statute of limitations for benefits claims on behalf of "Armenian genocide victim[s]"). |
Matthew Schaefer, Constraints on State-Level Foreign Policy: (Re) Justifying, Refining and Distinguishing the Dormant Foreign Affairs Doctrine, 41 Seton Hall L. Rev. 201, 206 (2011) (noting that President George W. Bush objected in a signing statement to nonpreemption language Congress included in the Sudan Accountability and Divestment Act of 2007). In his signing statement, President Bush wrote This Act purports to authorize State and local governments to divest from companies doing business in named sectors in Sudan and thus risks being interpreted as insulating from Federal oversight State and local divestment actions that could interfere with implementation of national foreign policy. However, as the Constitution vests the exclusive authority to conduct foreign relations with the Federal Government, the executive branch shall construe and enforce this legislation in a manner that does not conflict with that authority. Statement on Signing the Sudan Accountability and Divestment Act of 2007, 43 Weekly Comp. Pres. Doc. 1645 (Dec. 31, 2007). The language in § 3 of the Sudan Accountability and Divestment Act, like similar language in S. |
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Schaefer, supra note |
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Nat'l Foreign Trade Council, Inc. v. Giannoulias, 523 F. Supp. 2d 731 (N.D. Ill. 2007). The court also enjoined the law's provision regarding divestment of pension funds, but on foreign commerce grounds and not the dormant foreign affairs power. |