Thursday, July 20, 2017

A Non-Hyperbolic, Non-Apologetic Analysis of the Proposed Israel Boycott Law

Some of you may have read a recent Intercept post claiming that Congress is considering banning support for the boycott of Israel (by "some of you", I mean half my twitter feed). Unsurprisingly, this piqued my interest. On the one hand, the Intercept is not exactly an outfit known for letting accuracy get in the way of hyperbole. On the other hand, plenty of bad/regressive/poorly drafted laws are introduced in Congress, and the Israeli/Palestinian conflict in particular tends not to bring out people's sense of care and proportion.

So in my ongoing effort to help reintroduce the endangered species of calm, non-hyperbolic discussion of Israel on the internet, here's my best attempt at a calm, non-hyperbolic analysis of what this bill actually would do. But first, a bit of background.

American law already prohibits the boycotting of a country friendly to the United States where it is done at the behest of a boycott call by a foreign country. This law came about for a very particular reason: the threat of secondary boycotts by Arab countries. Companies which might have no interest in boycotting Israel might do so if, say, Qatar (whose business they value much more) said "you can't do business with us if you do business with Israel." The U.S. law counters by saying "you can't follow the Qatar boycott if you want to stay within American law". Even for companies where Qatar > Israel, the U.S. is > > > Qatar, so the law effectively neutralizes foreign calls for a secondary boycott.

The most anodyne way of describing this new law is to say that 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 (e.g., the EU and UN). If the current law isn't unconstitutional (and it's been upheld against challenge, see Briggs & Stratton Corp. v. Baldrige, 728 F.2d 915 (7th Cir. 1984)), why would this one be problematic?

One substantial contextual difference is that there's no serious threat that I'm aware of that either the UN or the EU is planning on calling for a secondary boycott. Whereas the current law is reasonably categorized as a protective measure for American corporations, this law really isn't. Does that affect the free speech analysis? Maybe -- that aspect of the law was specifically relied upon by several courts in explaining why the regulation was permissible, see Karen Maritime Ltd. v. Omar Intern., Inc., 322 F. Supp. 2d 224, 227 (E.D. N.Y. 2004). But I can see the argument either way.

Regardless of the legal effects though, the absence of a serious secondary boycott threat does significantly undermine the law's policy rationale. Most of the litigation over the initial law came because companies were providing documentation to Arab countries showing that they were boycotting Israel in order to avoid the former nations' secondary boycott. But if the UN or the EU aren't imposing a secondary boycott, there'd be no occasion to furnish this information and thus virtually no situation where anyone could violate the law unless they were dumb enough to admit "we are boycotting Israel because the UN is telling us to" (even "we are boycotting Israel because PACBI is telling us to" would be fine under this law, as PACBI is neither a foreign country nor an IGO).

For that reason, I find this law to be strange and kind of chest-thumpy. But is it worse than that? Does it ban boycotting Israel, or the request to do so? I do not think it does, though I understand why people thought it did. In fact, this is a good example for all you aspiring lawyers out there about the need for close and careful reading of statutory texts, because I very nearly got tripped up too.

The key language in the law comes in Section 4, subpart (b)(1) (subpart (a) deals with the policy of the Import/Export bank, and surely there's no trouble with the US as a matter of its own policy being opposed to boycotts of Israel; subpart (b)(2) modifies preemption language). This is the part of the law that regulates private business practices. One of the things it purports to prohibit is a "request to impose any boycott by a foreign country [or IGO]". Wow, that sounds bad! After all, whereas the practice of boycotting, or furnishing information proving one has complied with a boycott, is an action, requesting something is pure speech. That matters -- even in upholding the law, the Briggs & Stratton court observed that companies retained their freedom to agree with the boycott call as a matter of political speech. Take that right away, and this provision looks very different as a matter of constitutional law. A similar worry applies to new language: "or support any boycott fostered or imposed by any international governmental organization against Israel" -- to support something is expressive language, there can't constitutionally be a bar on expressing support for an Israel boycott.

So I was all set to chide the drafters for being at best sloppy, and at worst censorial. But then I read the section more closely. One reason it's really hard to properly interpret congressional bills is that they are out of context by design: it's all "insert this phrase" here and "add this sentence" there, without giving much context on what those sentences would do or modify in the context of the already-existing law. So here is how 50 U.S.C. § 4607(a)(1) would read as amended by Section 4(b)(1) of this law (italics/underlines are newly-inserted text, bold is my emphasis):
For the purpose of implementing the policies set forth in subparagraph (A) or (B) of paragraph (5) of section 4602 of this title, the President shall issue regulations prohibiting any United States person, with respect to his activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to take any of the following actions with intent to comply with, further, or support any boycott fostered or imposed by a foreign country, or request to impose any boycott 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, or support any boycott fostered or imposed by any international governmental organization against Israel or request to impose any boycott by any international governmental organization against Israel:
(A) Refusing, or requiring any other person to refuse, to do business with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, pursuant to an agreement with, a requirement of, or a request from or on behalf of the boycotting country or international governmental organization (as the case may be). The mere absence of a business relationship with or in the boycotted country with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, does not indicate the existence of the intent required to establish a violation of regulations issued to carry out this subparagraph.
(B) Refusing, or requiring any other person to refuse, to employ or otherwise discriminating against any United States person on the basis of race, religion, sex, or national origin of that person or of any owner, officer, director, or employee of such person.
(C) Furnishing information with respect to the race, religion, sex, or national origin of any United States person or of any owner, officer, director, or employee of such person.
(D) Furnishing information or requesting the furnishing of information about whether any person has, has had, or proposes to have any business relationship (including a relationship by way of sale, purchase, legal or commercial representation, shipping or other transport, insurance, investment, or supply) with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person which is known or believed to be restricted from having any business relationship with or in the boycotting country or with the international governmental organization (as the case may be). Nothing in this paragraph shall prohibit the furnishing of normal business information in a commercial context as defined by the Secretary.
(E) Furnishing information about whether any person is a member of, has made contributions to, or is otherwise associated with or involved in the activities of any charitable or fraternal organization which supports the boycotted country.
(F) Paying, honoring, confirming, or otherwise implementing a letter of credit which contains any condition or requirement compliance with which is prohibited by regulations issued pursuant to this paragraph, and no United States person shall, as a result of the application of this paragraph, be obligated to pay or otherwise honor or implement such letter of credit.
So here's the thing: The law has always been written to prohibit a set of actions taken with a particular motive (that's why that bolded text matters -- the "following actions" are the things laid out in subparts (A-F)). In the original text, that motive was "boycotting Israel at the behest of a foreign country." In the new text, that motive is expanded to include "boycotting Israel at the behest of an IGO." But the set of prohibited actions hasn't materially changed.

The simple way of putting it is that the stuff in subsection (a)(1) prior to subparts (A-F) -- boycotting, requesting to impose a boycott, supporting a boycott -- is not prohibited under the statute. Those are the motives that determine whether the actions listed out in subparts (A-F) become illicit. So, for example, you can't "Furnish[] information with respect to the race, religion, sex, or national origin of any United States person or of any owner, officer, director, or employee of such person"  (subpart C) only if your motive in doing so is "to comply with, further, or support any boycott fostered or imposed by a foreign country [or IGO]." But it is not the case that something not covered in subparts (A-F) is unlawful just because it "compl[ies] with, further[s], or support[s]" a boycott of Israel.

Does this cure the law of censorial implications? Even with the proper context of what the "requesting" language is doing, I still don't like it -- there seems to me still a marked difference between handing over information about whether a person is associated with Israeli charities (subpart F) in order to comply with another country's boycott regulations, and doing so because you yourself believe they should be boycotted -- the latter case being more clearly expressive all-the-way-down.

So, in sum: at the very least I think the "request" language should be eliminated -- it's only causing trouble. And on the whole I find this a strange law because the key rationale for the initial law -- the secondary boycott threat -- doesn't really seem to be at issue here. Consequently, I'm not convinced this new amendment is necessary or worth the tempest it is stirring up. But the more hyperbolic readings -- that it bans the call for a boycott against Israel outright -- seem to be wrong and based on a poor reading of the bill in conjunction with the statute it is modifying.


Alan Jay Weisbard said...

Thank you for this careful analysis, David.
One question, perhaps a bit out of left field.
The most likely relevant action by the EU or other foreign jurisdictions at the moment concerns proper labelling of products from territories occupied or administered by Israel, most notably the West Bank but possibly Golan as well, and produced by Israeli settlers. A classic example would be labelling of wine produced from grapes grown by settlers in the West Bank or Golan. Currently this is most likely labelled product of Israel, and the government of Israel, as well as producers, are disinclined to relabel as product of the West Bank. Mislabelled products may be prohibited from the market. What is your assessment of whether this can be considered a boycott (or other prohibited conduct) triggering the terms of the American statute? My guess is that this is the primary threat motivating the proposed statutory change, but I am myself not clear whether the proposed language would cover it.
--Alan Jay Weisbard

David Schraub said...

I don't think a labeling requirement counts as a "boycott" under the plain language of the statute. It is not a refusal to conduct business with the company in question; companies are required to label things in ways they would dislike all the time.

MC said...

The West Bank issue seems the most problematic. Does the bill specify (as I believe the House one does) that boycotts of the occupied territories are also banned? If so, this is significantly different than boycotting an entire country. Banning boycotts of products based on the actual conditions under which they're made (as opposed to the entire country) is tantamount to banning all legitimate boycotts. It also blurs the line between Israel proper and the occupied territories, in contrast to 50 years of American precedent.

David Schraub said...

The bill doesn't ban boycotts. The bill doesn't ban boycotts. The bill doesn't ban boycotts. This entire post is about explaining why the bill doesn't ban boycotts!

Andrew Levitt said...

I also question The Intercept's interpretation of the potential criminal penalty as including up to 20 years imprisonment.

Section 4(c) of S.720 says, "Whoever knowingly violates or conspires to or attempts to violate any provision of section 8(a) [of the Export Administration Act] . . . shall be fined in accordance with [50 U.S.C. § 1705]." (Emphasis added.)

Section 1705(c) provides for imprisonment if the offender is a natural person, but the bill is limited to "shall be fined." Additionally, as I understand (this is all a bit confusing), the penalty provisions of 50 U.S.C. § 4610(a)–(b) have sunset, which is why S.720 proposes the addition of subsection (j), which directed to the code section of the International Emergency Economic Powers Act.

Michael Sehr said...

This is a pretty clear analysis that answers most questions about the new law. But I note that the legislation starts with the proposition that "President shall issue regulations". The current President has demonstrated contempt for the First Amendment. Has the administration, if you can call it that, said anything that could be interpreted as agreeing with your analysis? How about the Federalist Society, which seems to control the Supreme Court nomination process, if not the whole Justice Department? If you have to be a Sudoku expert to figure out if speech is prohibited, this legislation certainly could restrict fee speech.

David Schraub said...

All laws have, in one form or another, language to this effect. But what it means in context is that some mid-level bureaucrat at the Department of Commerce will issue regulations enforcing the law, blah blah blah.

Of course, the problem of a President (or other executive branch officials) showing contempt for rule of law is that it really doesn't matter what the law says (because the whole point is we think they're not constrained by law). But in practice this has been a very obscure law that I doubt is on either President Trump or the Federalist Society's radar screen (the FedSoc, incidentally, does not to my knowledge issue statements of the sort that you have in mind. It's a conservative intellectual organization, the right-wing equivalent to the American Constitution Society of which I've been a member).