Noah Feldman, Columnist

Is the Anti-BDS Bill Constitutional? Yes, But …

If a state law punishes a company for boycotting Israel, that violates the First Amendment.

February 6, 2019 at 7:46 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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Photographer: Ahmad Gharabli/AFP/Getty Images

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The U.S. Senate passed a bill Tuesday that says state governments can refuse to do business with companies that boycott Israel. The bill passed, 77-23, with 22 Democrats and Republican Rand Paul maintaining that it threatens free-speech rights. So you might be wondering, as I was: Is the bill actually unconstitutional?

The question is straightforward, but the answer isn’t — because of the strange way that the federal bill is written with regard to the boycott, divestment and sanctions (BDS) movement.