BY HANK REICHMAN

Earlier today Martin Kich posted a piece on legislation being considered in Congress that, according to an account by Glen Greenwald, “would make it a felony for Americans to support the international boycott against Israel.”  While I think this legislation is unnecessary, ill-advised and frustratingly vague, I am skeptical that it is, as Marty argues, “a major and unjustifiable attack on free political expression.”  I base my skepticism on a close and detailed analysis of the bill posted by David Schraub, a lecturer in law and graduate student in political theory at U.C. Berkeley.  Schraub’s piece is quite lengthy and detailed, including what seems to be the entire text of what the legislation would actually put into statute, but I will try briefly to summarize his arguments as I understand them.

According to Schraub, the proposed legislation is actually an amendment to existing law, which prohibits the boycotting of a country friendly to the United States when it is done at the behest of a boycott call by a foreign country.  This law, which has been upheld by the courts (see Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984)), was a response to “the threat of secondary boycotts by Arab countries. Companies which might have no interest in boycotting Israel might do so if, say, Qatar (whose business they value much more) said ‘you can’t do business with us if you do business with Israel.’ The U.S. law counters by saying ‘you can’t follow the Qatar boycott if you want to stay within American law’.”

The current proposal would amend this in two ways.  First, it would extend this existing ban on boycotting an ally of the U.S. at the behest of a foreign country to include doing so at the behest of an International Governmental Organization (e.g., the EU or UN).  This seems at worst unnecessary, since no organization has enacted or is considering enacting any such policy.  Moreover, even as amended this does not bar companies from boycotting at the behest of private individuals or groups. The second change, however, is a bit more problematic.  Under the existing law Americans — and this applies overwhelmingly to American businesses involved in overseas commerce and not individuals  — are not actually barred from boycotting or supporting a boycott per se.  Instead, a number of specific actions are barred that would facilitate the boycott.  For example, as Schraub explains, a business is barred from revealing, for instance, if one of its officers contributes to Israeli charities, if in doing so it is motivated by the foreign government’s boycott policy.  The proposal would not only make this provision (and others like it) applicable if it was requested by an IGO, but would add to the list of forbidden actions a “request” for this information.

It’s not at all clear what this new distinction is trying to do, but Schraub doesn’t like it.  Neither do I, for despite Schraub’s explanation I still can’t figure out what it would mean in practice.  Schraub writes: “there seems to me still a marked difference between handing over information about whether a person is associated with Israeli charities in order to comply with another country’s boycott regulations, and doing so because you yourself believe they should be boycotted — the latter case being more clearly expressive all-the-way-down.”  The request language may or may not be a threat to someone’s free expression, but having read Schraub’s analysis and having seen how this language would read in statutory context, I suspect it’s likely to just be more confusing than it is dangerous.

In this light Schraub’s conclusion may be sensible:

So, in sum: at the very least I think the “request” language should be eliminated — it’s only causing trouble. And on the whole I find this a strange law because the key rationale for the initial law — the secondary boycott threat — doesn’t really seem to be at issue here.  Consequently, I’m not convinced this new amendment is necessary or worth the tempest it is stirring up.  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.

Like Marty, I’m no expert here and I certainly don’t doubt that the Israel-Palestine conflict has created far too much destructive mischief for free expression and that much of that mischief has been initiated by hard-line pro-Israel forces like AIPAC.  But at the least it seems people ought to be cautious about jumping to conclusions about a muddled and probably unnecessary proposal governing commerce that may simply provide a politically convenient way for politicians to demonstrate their support for Israel.  It certainly does not seem like much of a genuine threat to individuals who speak or write in favor of the BDS movement.

You can read Schraub’s complete analysis here: http://dsadevil.blogspot.com/2017/07/a-non-hyperbolic-non-apologetic.html