Ten things to know about anti-boycott legislation

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This post was drafted in 2016; last updated 3/27/19.

1. 27 states have already enacted legislation that targets boycotts for Palestinian rights.

Anti-boycott laws have been enacted in the following states: Alabama, Arizona, ArkansasCaliforniaColorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky* Louisiana*, Maryland*, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New York*, North Carolina, Ohio, Pennsylvania, Rhode Island, South CarolinaTexas, and Wisconsin*. 

*The governors of Kentucky, Louisiana, Maryland, New York and Wisconsin signed anti-boycott executive orders. 

Visit www.righttoboycott.org for an overview of anti-boycott legislation.

2. Activists have successfully defeated anti-boycott legislation in several states.

For example, in 2018, activists in Missouri defeated an anti-boycott bill. Anti-boycott bills in Washington State and Montana failed to advance in 2017.

In 2016, activists defeated anti-boycott bills in Maryland, Virginia, and Massachusetts. A Maryland coalition defeated the same bill again in 2017, after which the Maryland governor issued an anti-boycott executive order. In New York, activists successfully stopped two anti-boycott bills from passing the legislature before Governor Cuomo signed an anti-boycott executive order. 

At the federal level, pressure from civil liberties groups and concerned citizens succeeded in preventing Congress from passing the Israel Anti-Boycott Act (IABA) in 2018.

3. Other states and the federal government are still considering anti-boycott bills.

Anti-boycott bills are pending in some states, including Missouri and South Dakota, along with amendments to existing anti-boycott laws in Arizona and Texas, in response to litigation challenging those laws. 

Go to https://palestinelegal.org/federal for information about anti-boycott legislation pending in Congress.

4.  Even some county legislatures have waded into the debate.

Some counties have also considered anti-boycott measures. For example, Rockland and Nassau Counties in New York passed anti-boycott ordinances or resolutions. A proposal in New Castle County, DE, failed to pass.

5.  Keep in mind, none of the anti-boycott bills and laws take away your right to boycott for Palestinian rights or to advocate for such boycotts. 

Instead, these initiatives rely on one, two, or three of the following components:

  • Blacklists. Some of the anti-boycott bills/laws require the creation of blacklists of activists, non-profit organizations, and/or companies that are engaged in boycotts of Israel (including, in some cases, “territories controlled by Israel”). It's 21st century McCarthyism.

Interestingly, putting together a list of boycott supporters isn’t as straight-forward as some lawmakers expect, as Illinois discovered. The lack of procedural clarity on who is subject to such singling out and punishment for their political views is one of the big legal issues with these laws. But even addressing the procedural flaws would not overcome the underlying First Amendment concerns raised by these blacklists.

  • Prohibition on government contracts. Some of the anti-boycott bills/laws aim to punish individuals, non-profit organizations, and/or companies that support boycotts for Palestinian rights by prohibiting the state or local government from entering into contracts with them. So, for example, under some anti-boycott laws, the United Church of Christ or the Presbyterian Church (USA) could be prohibited from contracting with the state to run social services like soup kitchens, homeless shelters, or youth programs because of their endorsement of boycotts for Palestinian rights.

  • Pension fund divestment. Many of the anti-boycott bills/laws require state pension funds to divest from companies that boycott Israel (including, in some cases, “territories controlled by Israel”).

6. These anti-boycott bills/laws are unconstitutional and will fail.

The Supreme Court has long held that political boycotts – like boycotts for Palestinian rights – are a form of expression protected by the First Amendment. The government may not condition the receipt of government benefits on the requirement that a person forgo core political speech activity. Nor can the government enact measures that chill our speech rights.

Several courts that have considered anti-boycott laws have agreed. In September 2018, a federal court blocked Arizona from enforcing its anti-boycott law, finding that the law likely violates the First Amendment. A federal court also issued a preliminary injunction against Kansas' enforcement of its anti-boycott law.

The ACLU's case challenging the Arkansas anti-boycott law has been dismissed, but plaintiffs are appealing that decision. Some state legislatures have amended their anti-boycott laws to avoid these lawsuits, but the underlying constitutional concerns remain unchanged, and these laws will continue to be challenged.

7. These bills/laws are a sign that Israel advocacy groups are losing the debate at the grassroots.

Acknowledging the rapid growth of boycott, divestment and sanctions activism, particularly on college campuses, Israel advocacy groups are turning to “more favorable turf” for their efforts to suppress criticism of Israel: the legislative arena. The leader of one Israel advocacy group boasted, “[w]hile you were doing your campus antics, the grown-ups were in the state legislature passing laws that make your cause improbable.”

8. Anti-boycott bills/laws have galvanized activists for Palestinian rights and free speech allies.

New “Freedom to Boycott” coalitions have formed to fight anti-boycott bills in several states, including Maryland, New York, Ohio, and Virginia, as well as at the federal level. These coalitions are raising public awareness about boycotts for Palestinian rights in the media, exposing the anti-speech agenda promoted by the backers of these bills. For example:

9. Anti-boycott laws undermine our fundamental rights and social justice causes in general.

Our legislators should be in the business of protecting our rights, not punishing us for exercising them. We should hold legislators who support these anti-boycott bills accountable for their efforts to stifle collective action to make change. 

One thing is clear: there is a growing disconnect between the grassroots and the political establishment on the issue of Palestinian rights. Many Israel advocacy groups and the politicians who blindly support them are wrong to believe that they can legislate that disconnect away. You can’t change hearts and minds by slandering a human rights movement and taking away fundamental rights.

10. You can help.

  • Look for action alerts to oppose legislation in your state and in the U.S. Congress, or contact your legislators and let them know what you think about these bills.

  • Stand up for your right to boycott by writing to local and national media.

  • Join or start a local coalition to oppose anti-boycott legislation or to start your own boycott campaign and show that such legislation will not scare you away from exercising your right to boycott!

For an overview of anti-boycott legislation around the U.S., visit www.righttoboycott.org.