The Inapplicability of First Amendment Protections to BDS Movement Boycotts

Rebutting Misleading Assertions that the First Amendment Protects Participation by United States Persons in Foreign Boycotts of Israel

The paper has been derived from, and is an expansion of, certain arguments the author made in an earlier legal study of the BDS Movement under United States law, “The BDS Movement: That Which Is A Foreign Boycott By Any Other Name, Is Still Illegal” (hereinafter, the “BDS Legal Study”, available at http://ssrn.com/abstract=2531130) and is meant to rebut recent misleading assertions that the First Amendment protects participation by United States persons in foreign boycotts of Israel.

The “BDS Movement” is a Palestinian Arab organization with supporters and affiliates throughout the world. This movement, publicly operating under the false banner of promoting civil rights, seeks to destroy the State of Israel through coordinated international commercial and institutional attacks consisting, in part of, a boycott and divestment campaign against Israel. As the BDS Legal Study demonstrated, BDS Movement activity in the United States violates a number of federal and state laws and support for the BDS Movement subjects participants to significant risks, including monetary penalties and criminal liability under federal anti-boycott, anti-trust and anti-racketeering laws.

As part of its public relations campaign to lure unwitting American citizens and entities into support for unlawful BDS activity, the BDS Movement, through affiliated groups, has published a number of quasi-legal memoranda that wrongfully deem BDS support as being protected by the First Amendment.

While it is true that commercial boycotts have a storied history in the United States, as with any other right, the right to boycott is not without limitations. When the desire of individuals to effect change through boycotts intersects with the legitimate goals of government, the right to boycott is often inhibited, if not suppressed in its entirety. This is particularly true for boycotts that conflict with established government policy.