Jerusalem24 – In 2018, US Senators Ben Cardin (D-Maryland) and Rob Portman (R-Ohio) introduced the Israel Anti-Boycott Act (IABA) as an anti-BDS law. The law allows states in the US to enact laws requiring contractors to sign pledges against boycotting any goods from Israel.
The proposed law was a response to the growth of the BDS movement’s call for boycotts, divestment, and sanctions against Israel. As of 2020, 32 state legislatures had already passed bills similar to IABA.
IABA was drafted by Senators Cardin and Portman and introduced to the 115th session of Congress in 2018. It had 58 co-sponsors in the Senate, and 292 co-sponsors in the House (216 Republicans, 76 Democrats). The act consisted of House and Senate bills HR 1697 and S 720, and died in Congress.
Critics of the law and supporters of BDS claim that it is unconstitutional. They claim that participation in politically motivated boycotts is a form of free speech protected by the First Amendment and those anti-BDS laws are a form of lawfare.
Even as lawsuits against the anti-BDS legislation have claimed victory after another across the country, a US court of appeals upheld last week an Arkansas law that restricts state contractors from boycotting Israel, raising concerns about governmental infringement on free speech when it comes to criticism of Israeli abuses.
The Eighth Circuit Court ruled last Wednesday that boycotts fall under commercial activity – which the state has a right to regulate – not “expressive conduct” protected by the First Amendment of the US Constitution.
Critics claim that anti-BDS laws are unconstitutional because participation in political boycotts is protected speech and the government cannot require citizens to relinquish First Amendment rights in exchange for government contracts. To demonstrate this, critics refer to NAACP v. Claiborne Hardware Co. The case was of a boycott led by the National Association for the Advancement of Colored People against white merchants in Claiborne. The goal was to pressure city officials to meet demands about racial integration.
The Supreme Court in its decision found that boycotts to bring about political change occupy “the highest rung of the hierarchy of First Amendment values.”
Critics also cite USAID v. Alliance for Open Society (2013) where the Supreme Court ruled that the government cannot require organizations to profess to a specific viewpoint as a condition for government funding.
Anti-BDS laws coerce bidding contractors into professing to a specific viewpoint – namely of not boycotting Israel – which would be an unlawful “constitutional condition.”
The American Civil Liberties Union (ACLU) announced its plans this week to take the Arkansas case to the Supreme Court, which civil rights advocates say will have major implications for free speech.