Is Anti-BDS Legislation Unconstitutional?

The boycott, divestment and sanctions movement against Israel rejects a two-state solution and seeks to delegitimize Israel. That's why true progressives oppose BDS.

At the same time, we also support free speech. Americans have the right to buy, or not buy, goods made anywhere in the world and to urge others to do the same. Boycotting is a form of speech. That's why anti-BDS legislation needs to be carefully worded to accomplish its narrowly tailored goals without infringing on constitutionally protected speech.

To some extent, those who disagree about the constitutionality of  S. 720, the Israel Anti-Boycott Act, are talking past each other. Opponents seem focused on how the the First Amendment should be interpreted, while proponents seem focused on how the courts (thus far) have in practice interpreted the First Amendment. Thus, it's possible that both sides are right, although opponents may also be misreading the language of S. 720.

The ACLU opposes S. 720 because it believes that  S. 720 "would punish individuals for no reason other than their political beliefs." The ACLU believes that the First Amendment protects the right to boycott Israel, but this seems to reflect how the ACLU thinks the First Amendment applies rather than how courts have applied the First Amendment.

Sen. Ben Cardin (D-MD) and Sen. Rob Portman (R-OH) responded to the ACLU, arguing that "nothing in the bill restricts constitutionally-protected free speech." Rather, the bill regulates commercial conduct related to unauthorized foreign boycotts.

David Schraub argues that the bill might not be perfect or even necessary, but "the more hyperbolic readings -- that it bans the call for a boycott against Israel outright -- seem to be wrong and based on a poor reading of the bill in conjunction with the statute it is modifying."

Full disclosure: I am (currently) a member of both the ACLU and AIPAC. The ACLU might be right about how the First Amendment should be applied, but S. 720 seems to comply with how the courts thus far have interpreted the First Amendment. However, the pro-Israel community must carefully choose the best tactics to oppose BDS, especially when well-intentioned efforts to fight BDS could create well-intentioned free speech concerns.

The biggest mistake (yet) Trump could make would be to endanger the Iran deal. Aaron David Miller and Richard Sokolsky warn that

playing around with a nuclear agreement - however imperfect - that is keeping Iran's finger off the nuclear trigger, is both irresponsible and dangerous. If this is the course the Trump administration follows, it's likely to find itself with the worst of both worlds: an Iran with nuclear weapons expanding its influence in the region. Perhaps in some parallel universe this could be claimed as a beautiful victory that will make America great again, but on planet Earth that just isn't going fly.

Philip Gordon and Richard Nephew write that it's true that Iran's behavior in the region has not improved, but it's also true that this behavior cannot be attributed to the Iran Deal. Gordon and Nephew also explain why tougher sanctions and the threat of military force would not have deterred Iran. The deal is working, and we should be wary of sanctions that could endanger it.

Some of the Iran deal's restrictions expire after 15 years, but many last much longer, and some are permanent--including the prohibition on acquiring nuclear weapons. Also, we are not giving Iran $150 billion.

Trump's first six months -- not good for Israel or Jews. Read the scorecard.

Double standard much? Remember when some pro-Israel groups blasted President Barack Obama for threatening to veto a funding increase for Israel's missile-defense program? No criticism when Trump opposed such an increase last week.

Remember how our Republican friends would go nuts when the Obama administration urged both sides to reduce tensions? No criticism from our Republican friends when Trump again did just that last week.

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