In March of 2017, bills were introduced in the US Senate and House of Representatives which would criminalise support of the Boycott, Divestment and Sanctions (BDS) movement as well as other organisations which advocate for a boycott of Israel and Israeli products.
Journalist Rob Wolfe summarised the effects of the proposed legislation as follows,
“The bill, which goes by H.R. 1697 and S. 720, would prohibit American businesses or individuals engaged in interstate or foreign commerce from ‘supporting any boycott fostered or imposed by an international organization, or requesting imposition of any such boycott, against Israel,’according to a congressional summary”.
This would have the effect of criminalising both small and large businesses run by Americans and/or businesses based in the United States from participating in or encouraging other businesses and individuals to boycott Israeli products, divest assets from Israel and advocate for sanctions of Israel.
The bills are fraught with problems on a legal, ethical and moral level.
1. First Amendment
The first amendment to the United States Constitution protects the free speech of individuals and groups of individuals. By criminalising advocacy for a political cause, in this case for a boycott of Israel, the US Congress would be de-facto criminalising a form of non-violent speech which is protected by the First Amendment.
2. Free Enterprise
The United States is a global advocate for free enterprise, but the proposed legislation would seek to enforce criminal penalties on companies for making the decision not to do business with Israeli firms or the Israeli state. Unless an existing contract was violated, in which case it would be a civil rather than a criminal matter, business have the right not to do businesses with whomever they desire.
Domestic anti-discrimination legislation does not apply because the BDS movement encourages the boycott of a foreign state state rather than individuals in the US.
Many businessmen and women decide to operate their enterprises on an ethical level for a verity of reasons. A Christian business owner would likely not sponsor an event or take money from an event promoting perverse activities.
A Muslim business owner would likely not do business with a company that profits from the sale of anti-Muslim literature.
A Jewish business owner may well want to prioritise companies in Israel to show support for Zionism and likewise, a pro-Palestinian business owner might want to boycott Israel to show support for Palestinian freedom.
These ethical decisions should not be interfered with by government. Not only does American law protect private enterprise in this sense, but on a sheer ethical level, it would be wrong to force people to conduct business transactions against their will and against their conscience.
One of the most outspoken supporters of BDS is Pink Floyd founder Roger Waters. Waters lives in the United States and is currently touring North America with his new musical performance Us + Them. This tour would likely be considered interstate commerce according to US law and furthermore, it is likely that a US company is set up to receive profits from the tour.
This could make Waters subject to criminal liability for a tour whose artistic content strongly promotes BDS.
Have we really got to a state of affairs wherein the US is willing to support regimes like Israel which continue to kill Palestinian demonstrators but a 73 year old musician and poet can be prosecuted for making a peaceful political statement to those who paid to hear it?
It is beyond the pale to think that the United States in the 21st century could criminalise such activity.
Recently, the American Civil Liberties Union has written a letter to the co-sponsors of the bills asking them to reconsider their position on the grounds that it violates many existing US laws, including the Constitutional right to freedom of speech and freedom of expression.
This has caused several Congressional climb-downs. Also, the Jewish group J-Street which opposes BDS, has come out against the bills on the grounds of civil liberties.
Even if the bills were passed, the law would almost certainly not stand up in the courts and would end up being an embarrassment for those who drafted a clearly unconstitutional piece of legislation.
In spite of the aforementioned hope, the lingering worry is that members of the US Congress who are elected to protect American citizens have decided to protect the public image of the Israeli state at the expense of the Constitutional freedoms guaranteed to all Americans. This is the biggest tragedy of the effort to pass legislation which amounts to a legal farce.