Despite your claim to the contrary;
This law has been upheld against First Amendment challenges. And the most anodyne way of describing the new bill is to say it merely extends the preexisting ban on boycotting an ally of the United States at the behest of a foreign country (e.g., Qatar) to include doing so at the behest of an International Governmental Organization, or IGO (e.g., the European Union or United Nations).
Importantly, neither the current law nor the proposed one bans boycotts of Israel generally. The existing anti-boycott law only prohibits actions taken “with intent to comply with, further, or support any boycott fostered or imposed by a foreign country.” Obviously, it is not generally unlawful to say whether one has business dealings with Israel. And likewise, even under this law, it is not illegal to boycott Israel — unless the reason you’re doing it is to comply with a foreign country’s demand that you do so.
If one says “I boycott Israel because I think Israel is terrible,” that remains perfectly lawful (the ACLU is simply wrong when it suggests that the law targets those who boycott Israel “because of a political viewpoint opposed to Israeli policies”). In fact, if one says “I boycott Israel because the Palestinian Campaign for the Academic and Cultural Boycott of Israel tells me to,” that’s entirely lawful, too (PACBI is neither a foreign government nor an IGO). Only boycotts done at the behest of the EU or the U.N. would be newly prohibited by the law.
The ACLU’s letter suggests that this represents unlawful viewpoint discrimination. But many laws are like this: They prohibit certain actions only when they are taken with a particular intent. For example, it is illegal to fire a Latino employee if one is motivated by racial prejudice against Latinos. Both the action and the intent are perfectly lawful on their own — it is not illegal to harbor racial prejudice, and it is not illegal to fire employees — but conjoined together they become illicit. One could characterize this as (to quote the ACLU’s letter) punishing persons “based solely on their point of view” — the same action, taken with a different (non-prejudiced) viewpoint, is lawful — but doing so would throw the entirety of American anti-discrimination law into question.
Understanding the proposed anti-boycott measure requires grasping this distinction. Critics see provisions that target “support [for] any boycott fostered or imposed by any international governmental organization against Israel,” and assume that this motive alone is being criminalized. But a close parsing of the text — and in fairness, the paragraph in question is a convoluted nightmare — shows that this phrase does not prohibit supporting a boycott of Israel, it only prohibits those aforementioned actions (e.g., discrimination against an employee, certifying one does no business with Israelis) if one is doing so to support a boycott call from a foreign government or, now, IGO .
University of California, Berkeley, School of Law