Congress Is Trying (Again) To Ban Boycotting Israel

Congress keeps coming up with creative end-runs around the constitutional right to boycott. In 2017 and 2018, members of Congress from both parties unsuccessfully pushed a bill that would use export control laws to make encouraging boycotts of Israel punishable by 20 years in prison. Last year, a bipartisan coalition tried to ban “furnishing information” to an international boycott movement against Israel, only to postpone the vote due to opposition from the libertarian-leaning Rep. Thomas Massie (R–Ky.) and other Republicans.

On Thursday, the House of Representatives passed the Protect Economic and Academic Freedom Act, sponsored by Reps. Virginia Foxx (R–N.C.) and Josh Gottheimer (D–N.J.). The bill would require federally funded universities to certify that they “will not engage in a nonexpressive commercial boycott of a major strategic partner of the United States.” It cites only one definition of “major strategic partner,” Section 4 of Public Law 113–296, which states: “It is the sense of Congress that Israel is a major strategic partner of the United States.”

The bill still has to pass the Senate to reach the president’s desk.

Foxx stated that the bill “severs any possible taxpayer support of these concrete campaigns of antisemitism in the form of BDS and academic boycotts of Israel,” using the acronym for the Palestinian-led Boycott, Divest, Sanctions movement. But Lara Friedman, president of the nonprofit Foundation for Middle East Peace, points out that the bill goes far beyond controlling taxpayer funds.

The bill would create a cause for lawsuits under the False Claims Act against universities accused of boycotting U.S. partners, Friedman writes. By making universities “prove a negative” to avoid getting sued, the bill will force them into “prioritizing maximal engagement” with those partners, she adds. In other words, the Protect Economic and Academic Freedom Act would create a kind of affirmative action for foreign nations.

And the congressional report attached to the bill is an all-out attack on Americans’ constitutional right to withhold their money. It argues that the First Amendment “protected the expressive activities accompanying a boycott, not the commercial decision itself to refuse to do business with a particular entity.” Friedman calls it “an alarming and novel interpretation of the Supreme Court’s prior decisions,” which “renders the whole notion of a ‘right to boycott’ meaningless, with alarming implications going far beyond Israel-Palestine issues.”

Several supporters of Israel who otherwise oppose BDS came out against the Protect Economic and Academic Freedom Act, including Rep. Jerry Nadler (D–N.Y.) and the lobby group J Street, which stated that it “believes the most effective way to counter antisemitism on college campuses is through open debate, education, and renewed efforts to achieve a peaceful resolution to the Israeli-Palestinian conflict—not through punitive legislation aimed to curb the freedom to boycott.”

Friedman, Nadler, and J Street also pointed out that the bill’s definition of “Israel” would seem to include Israeli settlements in the Palestinian territories, making selective boycotts of a specific Israeli policy illegal. And that isn’t a theoretical concern. When the ice cream company Ben & Jerry’s announced in 2021 that it would pull out of the settlements while continuing to do business inside Israel proper, several states punished Ben & Jerry’s under their own state-level anti-boycott laws.

A decade ago, the Israeli government began an all-out campaign to counter the BDS movement in America, especially on college campuses. In 2015, the Israeli parliament held a hearing on the international threat of BDS, and future Foreign Minister Yair Lapid warned that a foreign boycott of settlements could “de-facto create a boycott on Israel in all kinds of places.” The newly created Ministry of Strategic Affairs was given a $36 million budget to combat BDS, and the 2019 documentary The Lobby USA found the ministry coordinating with campus-focused activist groups in America.

Several American student councils have voted to cut ties with Israel in response to the war in Gaza—including at Yale University and several University of California campuses—although none of those schools followed through. The Protect Economic and Academic Freedom Act would specifically forbid universities from pulling out of “conferences, teaching exchanges, cultural exchanges, study abroad programs, joint research, and other collaborative educational activities” with U.S. partners.

After the 2024 wave of campus protests, Foxx and Gottheimer took up the mantle of fighting anti-Israel student activism. Foxx has been investigating whether the protesters “have financial ties to designated Foreign Terrorist Organizations,” her office told Reason in May 2024. Meanwhile, Gottheimer pushed the Department of Education to investigate high schoolers for antisemitism and tried to force social media companies to stamp out “terrorist” content.

The Trump administration also used executive powers against the BDS movement. Most notably, it imposed economic sanctions on Italian academic Francesca Albanese, who wrote a report for the United Nations advocating boycotts and legal actions against companies that do business with the Israeli military. Albanese, who is suing the U.S. government over the sanctions, was banned from visiting her American children and had her husband’s apartment in Washington seized by the U.S. Treasury.

While these measures have been focused on Israel’s opponents, they’ve opened the door to force Americans to do business with all kinds of entities. States have built on their anti-BDS laws to ban boycotts of the fossil fuels, mining, agriculture, timber or firearms industries, or even companies with anti-LGBT and anti-abortion policies.

“The road to erasing [the] US right to free speech/protest of ANYTHING in the US is quite literally being paved with laws to protect/promote Greater Israel/Israeli impunity,” Friedman writes.