Cardin Unveils Amended, But Still Unconstitutional, Israel Anti-Boycott Act

On March 3, U.S. Senator Ben Cardin announced amendments to the much-criticized Israel Anti-Boycott Act, a bill that would prohibit some actions taken to comply with, further, or support a boycott of Israel imposed by the United Nations or the European Union.

The amendments do not solve its underlying constitutional infirmities, even while they address some of its most egregious elements by, for example, removing the criminal penalty of up to 20 years in prison, and giving lip service to the First Amendment right to engage in political boycotts. Criminal financial penalties of up to $1 million have not been removed from the bill.

The bill remains at its essence an attack on political speech, including support for certain boycotts for Palestinian rights, as its supporters have made clear. Participation in and support for political boycotts is protected by the First Amendment, as the U.S. Supreme Court held in the 1982 case, NAACP v. Claiborne Hardware Co., and as a federal court in Kansas recently affirmed in issuing a preliminary injunction blocking that state from enforcing an anti-boycott law.

“This bill is yet another glaring example of our legislators pandering to AIPAC at the expense of our constitutional rights in order to shield Israel from criticism for its egregious violations of Palestinian rights,” said Palestine Legal attorney Rahul Saksena. “No amendments can fix the bill’s foundational flaws. This is a time when lawmakers should be bolstering our constitutional rights to engage in political dissent, through boycotts and other means, including boycotts for Palestinian rights. Instead, they are undermining our ability to take collective, democratic action to oppose oppressive policies, at home and abroad.”

If the IABA is enacted, it will penalize political speech. For example, an employee of a human rights nonprofit who distributes research on companies operating in illegal West Bank settlements could face severe financial penalties if they do so to support a call by an international governmental organization to boycott Israeli settlements.

Similarly, if enacted, a company that takes an ethical and political position of aligning their business practices with international human rights standards, as espoused by the UN Human Rights Council, could face severe penalties if they refuse to do business in an illegal West Bank settlement.

For more information on why amending the bill is insufficient, read this blogpost from August 2017. Click here for a memo against the bill, signed by over 100 organizations. And click here to read the ACLU’s letter opposing the amended bill.