If passed, legislation currently before the U.S. Congress would forbid businesses from supporting boycotts of Israel or other states “friendly” to the U.S. Two weeks ago, the American Civil Liberties Union (ACLU) announced its opposition to the bill on the grounds that it violates freedom of speech. Eugene Kontorovich disagrees:
The ACLU’s claims are as weak as they are dramatic. . . . Current law [already] prohibits U.S. entities from participating in or cooperating with international boycotts organized by foreign countries. These measures, first adopted in 1977, were explicitly aimed at the Arab states’ boycott of Israel, but their language is far broader, not mentioning any particular countries. . . . [This] law has been upheld against First Amendment challenges in the years after its passage and has not raised any constitutional concerns in the nearly four decades since. . . . If the anti-boycott measures are unconstitutional, as the ACLU argues, it would mean that most foreign-sanctions laws are unconstitutional.
The distinction [on which these laws rest] between expression and commercial conduct is crucial to the constitutionality of civil-rights acts. In the United States, hate speech is constitutionally protected. However, if a Ku Klux Klan member places his constitutionally protected expression of racial hatred within the context of a commercial transaction—for example, by publishing a “For Sale” notice that says that he will not sell his house to Jews or African-Americans—it loses its constitutional protection. The Fair Housing Act forbids publishing such discriminatory notices, and few doubt the constitutionality of the Fair Housing Act. . . .
It is little wonder, then, that opponents of the Israel Anti-Boycott Act feel the need to exaggerate what the act does. It only makes clear that the old and existing anti-boycott law applies not just to the Arab League boycott but also to newer foreign anti-Israel boycotts, such as those being organized by the UN Human Rights Council. . . .
The real question is why the ACLU is now attacking the basic constitutional understandings that underpin decades of American foreign policy and civil-rights regulation—but confining its new First Amendment standard to laws relating to Israel.
Read more on Washington Post: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/27/israel-anti-boycott-bill-does-not-violate-free-speech/