Criminalizing a Boycott

October 13, 2017 10:05 AM

The ACLU has filed a federal lawsuit arguing a Kansas law requiring all state contractors to certify that they aren’t boycotting Israel violates the First and Fourteenth Amendments. Text of the complaint, Koontz v. Watson, is here.

Koontz v. Watson is an example of a "test case," selected by attorneys to chain appeals up to the US Supreme Court, where several constitutional questions concerning states' and federal governments' authorities to proscribe religious freedom and dictate conditions of commerce may be heard. In this case, unlike the decision on Burwell v. Hobby Lobby, enactment of the Religious Freedom and Restoration Act, and the proliferation of states' legislation to restrict birth control devices, the conscientious objector seeks freedom to trade or not, to express the cause of BDS. Her moral conviction not only conflicts with a Kansas requirement of a "loyalty oath" but with bills in Congress that criminalize any and all persons who advocate for a boycott of trade in goods or services originating in Israel. Those are S.720 and H.R. 1697. Will this legislative "movement" end in prohibition of Twitter and Facebook boycotts?

posted by marycatherine (25 comments total)

Previously on MeFi: US senators seek to make boycott of Israel a felony. "The ACLU, while not supporting a boycott, has come out in opposition to this bill since it would 'punish U.S. persons based solely on their expressed political beliefs'."
posted by Mr.Know-it-some at 10:21 AM on October 13, 2017 [7 favorites]

....Could someone explain the Twitter/Facebook boycott connection to me like I'm five?
posted by EmpressCallipygos at 10:21 AM on October 13, 2017 [1 favorite]

I wonder if the ACLU will also target the legislation that has made it a federal crime (subject to a fine of $50,000, iirc) for corporations to boycott Israel since 1977.
posted by xyzzy at 10:23 AM on October 13, 2017 [3 favorites]

Could someone explain the Twitter/Facebook boycott connection to me like I'm five?

If the law stands that allows banning boycott of Israel, it's precedent for a law banning boycott of media platforms. Suddenly, the state of Kansas is unwilling to do business with your company because you've told people that Facebook is bullshit and that you don't use it.
posted by explosion at 10:52 AM on October 13, 2017 [2 favorites]

What's the minimum number of dollars a company needs to spend on Israeli goods and services to not be in violation of this law?
posted by Pope Guilty at 11:07 AM on October 13, 2017 [17 favorites]

Well, considering that boycotting Israel means boycotting Intel, IBM, and Motorola, I think you'd have to make a very conscious effort to do so as a corporation.
posted by xyzzy at 11:21 AM on October 13, 2017

It's worth nothing that the plaintiff, Esther Koontz, is a Mennonite who cites her church's advice to avoid investments connected to Palestinian occupation as part of her reason for joining the boycott. Like the other peace churches, the Mennonites have a history of resisting governmental attempts to infringe on their right to practice their religion, usually as it relates to war and violence. It'll be interesting to see how the case is received in the media, as the moral grounding for her case is just as strong as, if not stronger than, the one for Hobby Lobby. But religious freedom cases that aren't a front for right-wing culture wars tend not to get much attention.
posted by Cash4Lead at 11:55 AM on October 13, 2017 [48 favorites]

Wasn't there some Republican thing about it being unconstitutional for the government to force people to buy things? Something-something-bamacare? I feel like they might have even taken it to the Supreme Court? Anyway it seemed like they cared a great deal about this principle at the time but hey
posted by saturday_morning at 12:05 PM on October 13, 2017 [12 favorites]

From “last time on MetaFilter”, here’s a helpful link about the bills before Congress.

It is illegal to certify to a foreign government that you are boycotting “a country friendly to the United States” (which means “Israel”). The bills name Israel specifically, and expand the certifying-boycott-authorities to include the EU and the UN.

It is not illegal to choose not to spend money where you don’t want to, or to boycott Israel, or support a boycott of Israel. It is illegal, and has been since the 1970’s, to perform certain listed overt acts to certify to a foreign government that you are not doing business in Israel, or with Israeli citizens.

I haven’t read Kansas’s bill to see if it’s a similar deal, or if it’s some other damn fool thing.
posted by Huffy Puffy at 12:12 PM on October 13, 2017 [6 favorites]

The bill expands injunction to the EU and the UN persons. Senate and House bills are identical.
posted by marycatherine at 12:26 PM on October 13, 2017

Readers struggling to recall the case of the mandate and the "tax" is understandable. Republicans threw up all sorts of unintelligible objections to ACA to district and appellate decision, helping US press to confuse matters of fact and fantastic profit-optimizing speculation. Here [PDF] is the SCOTUS ringer, affirming mandatory health insurance enrollment ("individual mandate") and Congress' authority to penalize non-compliance.
posted by marycatherine at 12:36 PM on October 13, 2017

Oy.
posted by snuffleupagus at 12:43 PM on October 13, 2017

From the bill text: the President shall issue regulations prohibiting ... Will he remove two for each that he adds?

It looks like it doesn't "ban boycott" as much as it bans "stating that you are boycotting because a foreign country, the EU, or the UN requests/requires it." Your company can't contract with Qatar and agree to avoid all business with Israel in order to get Qatar's business.

You can, however, get Qatar's business, and you can avoid doing business with Israel. As far as I can tell, this bill just forbids you from putting that in writing, and that sounds like a pretty sharp freedom-of-speech issue.

There are a few other forbidden things (providing info, employing/refusing to employ, some money things) but they come back that core: not, "you can't do this," but "you can't do this in order to comply with the wishes of a foreign power." You can *do* anything; you can't have the *intent* to boycott Israel.

Erm, this is quickly shifting from "forced speech" into "thoughtcrime" territory. (And as mentioned but possibly glossed over: This is already the law; they're tweaking some of the motivation phrasings and adding EU/UN to the list of "you may not boycott because" parties.)
posted by ErisLordFreedom at 12:44 PM on October 13, 2017 [4 favorites]

Well, considering that boycotting Israel means boycotting Intel, IBM, and Motorola, I think you'd have to make a very conscious effort to do so as a corporation.

I guess, if it's 1994.
posted by Sys Rq at 12:48 PM on October 13, 2017 [3 favorites]

For those who do not have a PDF reader, the relevant language in that SCOTUS decision as pertains to Koontz v. Watson or Koontz v. US fothcoming is

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.

May the state compel Koontz to sign an oath ("certify") and/or assume a particular commercial activity? The answers may well enjoin the 1st and 14th Amd. and RFRA, then what?
posted by marycatherine at 1:11 PM on October 13, 2017

I guess, if it's 1994.

Intel has 80% of the market for chips. Moto/Lenovo makes a thing or two. IBM is huge in IoT, security, analytics, and banking. Just because no one has IBM computers and Motorola pagers doesn't mean that they don't provide backend solutions in just about every sector of business you can possibly imagine.
posted by xyzzy at 2:04 PM on October 13, 2017 [8 favorites]

marycatherine: "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do."

Man, I knew that Roberts was a shitty human, but I hadn't read this before. I'm not sure what humans who don't use healthcare he was thinking of, but I guess fictional ideas like that are just part of America.
posted by TypographicalError at 3:07 PM on October 13, 2017

The Criminal Boycott Bill and The KS Oath: It may be too much to ask, but so long as readers are tempted to draw analogies in time, consider how the SCOTUS once selected sedition and 1st Amd. cases for litigation. Advocacy figured then as it does now among enemies of the state in this excerpt from William O. Douglas's autobiography.
posted by marycatherine at 3:50 PM on October 13, 2017

Isn't this pretty much a slam dunk case? I'm really having difficulty seeing how the law isn't a violation of both amendments.
posted by zarq at 4:40 PM on October 13, 2017 [3 favorites]

I guess, if it's 1994.

oh please oh please oh please
posted by Room 641-A at 4:48 PM on October 13, 2017 [5 favorites]

Several times I've bought parts for various cars that I've owned that were made in Israel. I don't know exactly the extent of the Israeli car part manufacturing sector, but I'd bet that if you truly wanted to boycott Israel....
posted by hippybear at 7:15 PM on October 13, 2017

I just finished Noam Chomsky's Who rules the world and this makes perfect sense now. I wonder how far is the time when the US is boycotted by the rest of the world, and judging by the policy of many states which is to become less dependent on its products, the time may be closer than we think.
posted by Laotic at 11:28 PM on October 13, 2017

Douglas's autobiography illustrates how the Red Scare of the 1939-1975 fomented challenges by US governments to the US Constitution. Persons purporting to defend "national security" derogated civil liberties in 1st, 14th, 4th, and 5th Amendments --these last two said to construct our expectations of personal privacy and personal domain of conduct-- in order to identify so-called traitors.

But here is news of a court opinion which abrogates the fealty of the US House to all those principles of justice --almost as if it were an "emanation" of Hobby Lobby Inc., a private corporation.

not finding, that RFRA applies to the House, the court finds Mr. Barker has failed adequately to allege a claim under RFRA because he fails to allege a substantial burden

This court affirms, the "right" of US House members to discriminate among "higher powers" does not violate the Establishment Clause of the US Constitution. Nor does it abridge or burden the civil rights of petitioners to the courts.

In the '50s as now US governments relied on and rewarded individuals and corporations ("persons"), not least of which broadcast media publishers, to identify, test, and prosecute suspected traitors. The last suits over which Douglas preside were in 1975. Enter FISA jurisdiction. Fifty years later, "social media" investigations. Covert and overt acts of treason: Will it end when the last person in the USA refuses to register for and certify having ever read each Bloomberg multi-level-marketing service Terms of Agreement? Google is hiring.
posted by marycatherine at 8:06 AM on October 14, 2017

FISA, RFRA, AUMF, Patriot Acts, MCA, NDA : Is boycott an adequate defense of civil liberties in these times?
Feds Push for Facebook Data on Inauguration Protests

“I think it’s pretty obvious that the government is trying to lift the lid on the Facebook accounts of political dissidents and activists,” MacAuley said in an interview after the hearing. “And I think this is not only a big violation of our privacy …this is actually something that could have a chilling effect on activism.”
[...]
the government obtained search warrants in February requiring Facebook to disclose information about their accounts, as well as the DisruptJ20 Facebook page.

posted by marycatherine at 8:32 AM on October 14, 2017

The ACLU's lawsuit includes relevant text of the Kansas law:

As used in K.S.A. 75-3740e and 75-3740f, and amendments thereto:
(a)
“Boycott” means engaging in a refusal to deal, terminating business activities or
performing other actions that are intended to limit commercial relations with
persons or entities doing business in Israel or in territories controlled by Israel, if
those actions are taken either:
(1)In compliance with or adherence to calls for a boycott of Israel other than
those boycotts to which 50 U.S.C. § 4607(c) applies; or
(2)In a manner that discriminates on the basis of nationality, national origin
or religion, and that is not based on a valid business reason;

So, "other than those boycotts to which 50 USC 4607c applies" means "other than boycotts that are pre-empted by the federal legislation, which suggests that it's not limited to the ones that require overt action to comply with some foreign boycott requirement. That could be an issue for Kansas in court.

Plus, of course, the overt violation of the Commerce Clause inherent in regulation of trade with Israel by a state government.

This law is dumb. Not surprising that it's dumb. It's probably going away. We don't need to bust out the Jump to Conclusions mat in this thread to make up other stuff to be mad about.
posted by Huffy Puffy at 4:25 PM on October 15, 2017 [2 favorites]