Israel's New Boycott Law and U.S. Law: Like Apples and Orangutans

Comparing the boycott law passed Monday by the Israeli Knesset with US anti-boycott law is like comparing apples and orangutans.

Apples and orangutans indeed have things in common. Both occur in nature, both words start with a vowel, and neither one looks anything like a frog. Likewise, US law and the new Israeli law have things in common: both include the word "boycott," both relate to Israel, and neither has anything to do with frogs.

Defenders of Israel's anti-boycott law want to end the story there. This comparison, they argue, proves that the U.S. law and the Israeli law are in essence no different, and ipso facto, that the new Israeli law is nothing out of the ordinary in a democracy.

Anyone with any common sense knows that a pomaceous fruit is not the same as a great ape. Unfortunately, that same common sense seems to be lacking in the comparison of the two laws. This could be because -- let's be honest -- not everyone knows how to go about researching U.S. law. It could also be because even reasonable people assume that nobody would have the chutzpa to blatantly lie about something that can so easily be fact-checked.

Here are the facts:

U.S. law (found in the Export Administration Act -- EAA; the official reference is: 48 C.F.R. 652.225-71) "prohibits compliance by U.S. persons with any boycott fostered by a foreign country against a country which is friendly to the United States and which is not itself the object of any form of boycott pursuant to United States law or regulation," and imposes criminal penalties on those who do comply with such boycotts. U.S. law (found in the Tax Reform Act -- TRA), penalizes those who participate in such boycotts (as defined under the EAA) by denying them certain tax benefits.

The key words in all of this are "by a foreign country." The objective behind these laws is clearly spelled out on this webpage (which is helpfully being circulated by the defenders of the new boycott law, but apparently not being read). That objective is: "preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy..." The key words here, again, are: "other nations."

There's nothing ambiguous here. U.S. law doesn't bar U.S. citizens from organizing boycotts of anything or any country, or participating in boycotts of anything or any country, that are organized by domestic or foreign individuals or organizations. What U.S. law bars is participation in unsanctioned boycotts and embargoes imposed by other countries that conflict with U.S. policies -- including but not limited to the (effectively moribund) Arab League boycott of Israel.

So what does this mean in practice? It means that a group of angry Americans can organize a boycott of France and French products to protest France's perceived non-support of the US in the Iraq war, notwithstanding the fact that France is a country that is "friendly to the United States." And Americans are free to organize a boycott against Canada, a close friend of the U.S., to protest seal hunting or to organize a boycott against Mexico, simply because they don't like it. And any American can organize a boycott of Arizona to protest its outrageous racial profiling policy. And a food co-op in Olympia, Oregon can legally boycott Israeli products.

And in practice, even if opponents of a boycott of settlement products could somehow make the case that such a boycott was being fostered by a foreign government, U.S. anti-boycott law would not apply. Israel has never annexed the West Bank, and settlements are not legally part of Israel, even under Israeli law. So such a boycott could not fairly be characterized as targeting "a country which is friendly to the United States." Moreover, U.S. anti-boycott law stipulates that compliance with foreign boycotts is prohibited if they reflect "foreign policies of other nations which run counter to U.S. policy" -- but U.S. policy has long opposed settlements.

Welcome to democracy, under which citizens can peacefully protest whatever they want, foreign or domestic, including through boycotts.

Except in Israel. In Israel, as of Monday, people are still free to use boycotts to express their views on consumer prices (like the recent cottage cheese boycott), their religious intolerance (like regular boycotts by religious Jews of businesses that open on the Sabbath), and even their unconcealed racism (like boycotts of businesses that employ Arabs and boycotts of anything Arab at all). In Israel, one can still in fact use boycotts to protest anything and everything. Except, that is, to protest Israeli government policy as it relates to settlements and the occupation. Under Israel's new anti-boycott law, participating in or calling for any such boycott opens one up to being sued for practically unlimited "compensation," with the person doing the suing not even obligated to prove that any actual "damage" was done.

The Association of Civil Rights in Israel helpfully has some additional analysis of the differences between the U.S. and Israeli laws here. And for those who read Hebrew, there is this handy Knesset report which states that a Knesset committee charged with finding parallels in other countries to what was then the draft boycott law, "did not find arrangements in these countries [in Europe] that were similar to our proposed legislation..."

As pointed out by Joseph Dana writing in the Israeli +972 blog:

...the Knesset's own fact finding mission proves, beyond any shadow of a doubt, that the bill has no parallel in other democracies. Arguing that there are similar laws in other democratic countries is simply a device used to ignore the gravity of the present Israeli law. The implications of this bill on freedom of speech and expression in Israel are profound and even the Knesset harbours no illusion that there are similar laws in other democratic countries.

Those of us who care about Israel's future as a democracy must push back against this new law. We can't just nod our heads when they tell us that apples are just like orangutans and that limiting freedom of expression is not a sign that Israeli democracy is on the road to serfdom.