It’s absolutely stunning to see a boycott against Jews by an American company in the year 2018. Yet that’s exactly what Airbnb is doing. On Nov. 19, 2018, Airbnb, Inc. (the popular online hospitality service) announced, “We concluded that we should remove listings in Israeli settlements in the occupied West Bank that are at the core of the dispute between Israelis and Palestinians.”
The policy is even more devious than it sounds. In short, Israeli Jews living in Judea/Samaria (the “West Bank”) may no longer rent out their homes and apartments via the Airbnb platform. Muslims, Christians, and citizens of the Palestinian Authority are free to continue doing so: the boycott targets only Jews. At present, Airbnb does not boycott any other country nor target any other dispute.
The announcement has sparked public discussion about whether the decision is discriminatory or even antisemitic. Yet Western media coverage has widely neglected one critical fact: Boycotting Israel is not “free speech.” It might even be illegal.
To be clear, no private citizen is obligated to buy products from any particular foreign nation. That is a personal choice. Also, anyone may lobby the U.S. government to institute a boycott at a national level — that is free speech.
Article I Section 8 of the Constitution contains the “Commerce Clause” which gives Congress the power to “regulate Commerce with foreign Nations.” This means that a private boycott against a foreign government is not “free speech” like the domestic boycotts of the civil rights Movement. Rather, it is a tool of statecraft that, like war, is reserved to the federal government alone.
One of the earliest applications of the Commerce Clause was the Sherman Act of 1890, which implements the federal government’s power to regulate activities related to commerce and to prevent “restraint of trade.” Years after the Sherman Act, the Supreme Court held that expressive activities that impinge on constitutional powers reserved to the government are not constitutionally protected “free speech.” (United States v. O’Brien). This legal tradition eventually led to the Export Administration Act of 1979.
Attempts to implement a wide ranging, private boycott against a foreign nation illegally bypass Congress’s exclusive power to regulate foreign trade. Airbnb is undermining the American democratic system and potentially violating the Constitution.
Airbnb’s actions go beyond economic effect. They can also be seen as a serious breach of media ethics. In this online age, companies don’t just sell products, they also communicate with their millions of customers through online platforms. When such a company communicates a political message, the customers hear it. When that message relates to a topic on which the company has credibility, many will believe it.
In this case, Airbnb has 15 million followers on Facebook, 670,000 on Twitter, and 590,000 on its own community forum. Airbnb also has a jaw-dropping 150 million users on its mobile app and website, and more people visit its web site every day than watch CNN, MSNBC, or BBC’s prime time news broadcasts on a typical evening.
Airbnb enjoys significant credibility on the question of travel, including safety, advisability, and in this case, possibly even morality. So when Airbnb announces on its various media platforms that boycotts against Israel are the key to Mideast peace, millions of people are listening.
America has so many anti-boycott laws that there is an entire federal department dedicated to enforcing them — the United States Office of Antiboycott Compliance (OAC). As Executive Director of HonestReporting, a media watchdog NGO, I filed a complaint on the following grounds: The acts enforced by the OAC prohibit agreements to refuse or actual refusal to do business with or in Israel or with blacklisted companies, and agreements to discriminate or actual discrimination against other persons based on race, religion, sex, national origin, or nationality.
As the Airbnb boycott applies only to Israel, and specifically to properties owned by Jews or Israeli citizens, but exempts Christians, Muslims, and citizens of the Palestinian Authority who live in the same area, it fits squarely within the prohibitions covered by the OAC.
If found to be in violation of the relevant laws, Airbnb could be subject to significant fines, tax consequences or even criminal action. Through its potentially illegal acts, the online platform is even risking its ability to continue doing business in the United States. A number of other Israeli and American organizations are taking actions under other state and federal laws, including local laws in 26 of America’s 50 states.
Legalities aside, Airbnb’s decision is an astonishing example of anachronistic racism rearing its ugly head in our modern world. In fairness, Airbnb may be acting merely on bad information rather than bad intentions. Its boycott is the result of numerous requests by the Palestinian Authority government and biased reports by several blatantly anti-Israel pressure groups, including the misleadingly named Human Rights Watch and Jewish Voice for Peace.
Nonetheless, Americans should not tolerate double standards, discrimination or blatant racism against any group of people. We’re better than that. America is better than that.