North Carolina senators Richard Burr and Thom Tillis have cosponsored a bill that could impose stiff criminal and civil penalties for engaging in a boycott of Israel or its occupied territories. A similar—albeit less draconian—state bill, passed in the General Assembly in June, currently sits on Governor Cooper’s desk.
These bills target the Boycott, Divestment, Sanctions movement
, or BDS, which seeks to stop companies and individuals from supporting businesses that work in Israeli settlements.
Modeled after the anti-apartheid movement, BDS began in 2005 to put pressure on Israel to end policies like its occupation of Palestinian territories, which is considered illegal under international law.
Rahul Saksena, an attorney with the Chicago-based nonprofit Palestine Legal
, says he first saw pro-Israel groups shifting their attention toward state legislatures two years ago, a move he thinks was prompted by more Americans supporting BDS.
According to Beth Bruch, a member of Jewish Voices for Peace’s Triangle chapter, efforts like these are clear attempts to silence constitutionally protected dissent against Israeli policies. “I think this sort of bill is trying to just intimidate corporations and others from engaging actively in solidarity by making them think that there will be consequences,” Bruch says.
On July 17, the ACLU sent a letter to U.S. senators
sharply criticizing the federal Israel Anti-Boycott Act, pointing out that the bill would threaten serious financial penalties or jail time simply for opposing Israeli policy.
“We take no position for or against the effort to boycott Israel or any foreign country, for that matter,” the ACLU wrote. “However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.”
According to the ACLU
, the bill would expand the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which prohibits engaging in a boycott of nations friendly to the U.S. and carries a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and twenty years in prison. (Senator Ben Cardin, a Maryland Democrat and the lead author of the bill, told The Intercept that he and other supporters did not intend for the bill to carry criminal penalties
and would be open to amending it.)
Burr signed on to the bill in May, while Tillis became a cosponsor in late July. Neither senator responded to requests for comment.
The General Assembly’s anti-BDS bill, House Bill 161
, would require the state to divest from any company the state treasurer determines is boycotting Israel. It also prohibits any state agency or municipality from contracting with companies that are boycotting Israel. According to the Jewish Virtual Library
, if HB 161 becomes law, North Carolina would be the twenty-first state to enact anti-BDS legislation.
Since the bill passed 94–21 in the House and 45-3 in the Senate, legislators likely have the votes to override Cooper’s veto, should the governor decide not to sign it.
Like with the national legislation, state ACLU policy director Sarah Gillooly says bills like HB 161 unconstitutionally limit First Amendment rights.
“Economic boycotts are a form of expression that the Supreme Court has ruled is protected by the First Amendment,” Gillooly writes in an email. “North Carolina can’t blacklist companies or force them to give up their constitutional rights simply because lawmakers don’t like their views."
Joseph Blocher, a Duke law professor, says the constitutional questions raised by anti-BDS laws are not entirely settled. While a boycott is a protected form of speech and denying government benefits for engaging in a boycott would almost always be a constitutional violation, the state can argue that choosing not to do business with these companies is exercising in its own speech.
“The government has the power to control its own message, for example, by deciding which programs it wants to subsidize in the first place.” Blocher says. “That’s what’s called government speech, and one might argue that HB 161 is just a matter of North Carolina choosing not to support certain viewpoints with which it disagrees.”
State Representative Jon Hardister, a Republican sponsor, says that while it’s ultimately for the courts to decide if HB 161 is constitutional, he sees no issue with the state not doing business with those who want to economically damage an ally he believes is important for national security.
“When you’re dealing with companies that are trying to hurt an ally, an international ally, that’s when I think you have a problem, and it’s admissible for the state to take action,” he says. Hardister adds that he doesn’t believe many companies will be affected by the bill; he says it’s meant as more of a “preventative” measure.
Karah Manning, a spokeswoman for the treasurer’s office, says it’s difficult to determine if any companies meet the criteria laid out in HB 161. But if the bill becomes law, the treasurer will make a list publicly available within 120 days.
Brian Hauss, an ACLU attorney, says that even if a law is largely symbolic, it can still chill speech.
“If there is a lot out there that says or at least suggests that a certain kind of speech is being prohibited and it threatens really severe sanctions if you engage in it, then a lot of people are just not going to engage in it because that’s the smarter thing to do, and that is a First Amendment harm."
Update: Governor Cooper has signed HB 161 into law.