Constitutionality Issues & BDS Legislation: Expert Views


There is an ongoing campaign in Congress and in state legislatures to pass laws barring BDS against Israel and/or boycotts or other forms of economic pressure against settlements. For details about the campaign in states, see here; in Congress, see here.

All of these efforts are problematic, both because of the conflation of Israel and settlements, and because of the brazen unconstitutionality of this legislation.

Below is a compilation (to be updated as new resources appear) of expert opinion/analysis regarding the constitutionality/free speech concerns raised by this legislation.

The American Civil Liberties Union (ACLU)

–> Oct. 11, 2017: ACLU Free Speech Case Challenges Law Aimed at Anti-Israel Boycotts

–> July 26, 2017: ACLU blogpost, How the Israel Anti-Boycott Act Threatens First Amendment Rights

[Related: Eugene Volokh (free speech legal expert) in WaPo 7/25: There’s no First Amendment right to engage in anti-Israel boycotts — but there is a right to call for such boycotts]

–> July 24, 2017: ACLU op-ed in Washington Post, This piece of pro-Israel legislation is a serious threat to free speech

–> July 20, 2017: ACLU blogpost, “The First Amendment Protects the Right to Boycott Israel

–>July 17, 2017: ACLU Letters to the House and Senate Opposing Israel Anti-Boycott Act – HR 1697 and S 720

(Excerpts: “…the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.” And “…the bill would punish businesses and individuals based solely on their point of view. Such a penalty is a direct violation o the First Amendment.” And “...H.R. 1697 [S. 720] seeks only to punish the exercise of constitutional rights...”)

–> Letters to state lawmakers opposing anti-BDS legislation on constitutional grounds:

–> April 18, 2017: Op-ed by former ACLU-MA Director of Education (1987-2013): Why 100 Massachusetts groups are defending the right to boycott

–> July 5, 2016: Letter to Members of the House Appropriations subcommittee Chair (Rep. Granger, R-TX) and Ranking Member (Lowey, D-NY): ACLU Letter Opposing Anti-BDS Amendments to House State-Foreign Operations

–> June 9, 2016: Statement regarding New York Executive Order: Cuomo’s BDS Blacklist Is an Affront to Free Expression

Amnesty International

Letters opposing S. 720 and HR 1697 – to Senator Cardin (D-MD) and Congressman Roskam (R-IL).

Excerpt: AI says the bills would “directly violate U.S. legal obligations to respect and protect freedom of expression and association guaranteed by the International Covenant on Civil and Political Rights” and “would violate U.S. legal obligations under the Fourth Geneva Convention, by implying recognition of and facilitating an illegal situation [by normalizing settlements].”

Center for Constitution al Rights

–> June 9, 2016: Cuomo BDS Executive Order Points in the Direction of Joseph McCarthy

National Coalition Against Censorship

–> March 15, 2016: NY Anti-BDS Bills Threaten First Amendment Rights; UPDATE 6/9/16: NY to Blacklist Businesses Engaged in Boycott

Harvard Law Review

–> May 10, 2016: “…the anti-BDS statute passed by South Carolina and those being considered by several other states are likely unconstitutional in nearly all of their applications.”

Los Angeles Times Editorial Board

–> July 5, 2016 editorial: Boycotts of Israel are a protected form of free speech

California State Assembly & Senate Judiciary Committee Staff

–> June 20, 2016: Senate – Judiciary Committee staff memo on amendments made to the pending BDS/boycott legislation to address constitutional concerns

–> May 11, 2016: Assembly – Appropriations Committee staff memo laying constitutional concerns with pending BDS/boycott legislation and efforts to address them

–> April 19, 2016: Assembly – Judiciary staff memo laying out in detail concerns regarding unconstitutionality of pending BDS/boycott legislation

The Anti-Defamation League

–> May 29, 2015: Op-ed by then-head of the ADL, Abraham Foxman, Comprehensive approach to fighting BDS is needed (“Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down.“)