Congress Is Trying to Use the Spending Bill to Criminalize Boycotts of Israel and Other Countries

According to recent reports, congressional leaders from both sides of the aisle are planning to sneak a bill criminalizing politically motivated boycotts of Israel into the end-of-the-year omnibus spending bill.

The bill’s original sponsor, Sen. Ben Cardin (D-Md.), is pushing Democratic leadership to include this bill, which has not moved forward thus far primarily because it violates the First Amendment. Senate Minority Leader Chuck Schumer (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.) are reportedly leaning toward slipping the text into the spending bill, which needs to pass for the government to stay open.

The ACLU has long opposed the Israel Anti-Boycott Act through its multiple iterations because the bill would make it a crime to participate in political boycotts protected by the First Amendment. Now, the bill’s sponsors are attempting to avoid public scrutiny by including the bill’s unconstitutional criminal penalties in must-pass legislation scheduled for a vote just days before Congress’ holiday recess — likely because it will be harder to pass in the new Congress.

Earlier versions of the Israel Anti-Boycott Act would have made it a crime — possibly even subject to jail time — for American companies to participate in political boycotts aimed at Israel and its settlements in the occupied Palestinian territories when those boycotts were called for by international governmental organizations like the United Nations. The same went for boycotts targeting any country that is “friendly to the United States” if the boycott was not sanctioned by the United States.

Last week, the ACLU saw an updated version being considered for inclusion in the spending bill (though this text is not publicly available). While Hill offices claim the First Amendment concerns have been resolved, and potential jail time has indeed been eliminated as a possible punishment, the bill actually does nothing to cure its free speech problems. Furthermore, knowingly violating the bill could result in criminal financial penalties of up to $1 million. Were this legislation to pass, federal officials would have a new weapon at their disposal to chill and suppress speech that they found objectionable or politically unpopular.

Consider, for example, if the United Nations advocated boycotting Saudi Arabia in response to the murder of Jamal Khashoggi, the Washington Post journalist, or Russia in response to its alleged election interference around the world. That would mean American companies, small business owners, and even non-profits, potentially some religious institutions, and people acting on their behalf in support of the boycott could be subject to criminal penalties.

This is a full-scale attack on Americans’ First Amendment freedoms. Political boycotts, including boycotts of foreign countries, have played a pivotal role in this nation’s history — from the boycotts of British goods during the American Revolution to the Montgomery Bus Boycott to the campaign to divest from apartheid South Africa. And in NAACP v. Claiborne Hardware, the Supreme Court made clear that the First Amendment protects the right to participate in political boycotts. Although the bill states that nothing in the act “shall be construed to diminish or infringe upon any right protected under the Constitution of the United States,” such hollow assurances do not undo its core purpose of penalizing First Amendment activities and silencing speech.

Members of Congress who support this bill should take note of the fact that just this year, two federal courts blocked state laws seeking to suppress boycotts of Israel. Those laws, like many copycats around the country, required state contractors to certify that they are not participating in boycotts of Israel as a condition of doing business with the state. The courts agreed with the ACLU that these anti-boycott laws violate Americans’ First Amendment rights. The Israel Anti-Boycott Act is another page from the same unconstitutional playbook.

Urge Congress to oppose the boycott ban

It is clear why congressional leaders fear an open debate on this legislation. Restricting Americans’ freedom of expression is rarely a popular policy. But that is no excuse for smuggling controversial new crimes into a last-minute appropriations package. If the First Amendment means anything, it’s that the government cannot suppress political expression it doesn’t like.

Whatever their views on the Israel-Palestine conflict, members of Congress should oppose any effort to include this unconstitutional law within the omnibus spending bill. Americans’ First Amendment rights are at stake.

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Anonymous

I'm not at all surprised that Pelosi and Schumer would try to sneak in an anti-BDS bill into the bill that's already on the table. The two of them have no integrity whatsoever and want to completely tear up the Constitution. They've been doing that for years, so this isn't at all new.
The members of both the House and the Senate must be vigilant and make sure this anti-BDS bill dies in either the House or the Senate. We have the Constitutional Right not to buy products made in Israel and/or in the Settlements and nobody has the right to force them down our throats.

Brian

Because they're scummy greedy pigs and traitors.

Dr. Joseph Goebbels

I don't understand why people hate Jews when there are so many other people to hate.

val

I come from a Jewish heritage, no longer believe in any religion, and I’m against what Israel is doing with the Palestinians. Does that mean I hate my own family? No, what it means is I believe in us having compassion and helping our fellow humans. My Jewish dad always said hate and ignorance is what causes genocides. Our government is totally out of control, 8 wars that only 2 were declared, invading democratic countries because we don’t like their policies or leaders, in 135 county conflicts, etc., while our fellow citizens struggle to make ends meet, due from lack of healthcare. It seems our government is spreading the hate for profit, bombing all those countries shooting all those people are not bringing stability to their countries or love of the US government.

Anonymous

The Congress will pass this bill because it fully expects it to be blocked or ruled unconstitutional down the road. Congress can keep and reinforce its Israel Lobby credentials by voting for the bill. I believe this is how the situation is set up to play out.: It simply reestablishes the status quo.

Anonymous

It's going to result in many synagogue attacks.

I really hope that, if it passes, you're right. It's always possible that it won't be ruled unconstitutional, or that we'll have another "they've made their ruling, now let them enforce it" moment. Those types of nightmare scenarios are what we try to avoid.

Anonymous

Wouldn't that just be just swell but unfortunately, I do believe the citizens of the U.S.A. will have a wake-up call when this Bill passes. You will for the first time clearly see who has owned your government and who it was sold out to. Of course, Trump will sign it into Law.

Anonymous

Lolz. BDS is what the Nazis did before the Holocaust. And majority of Germans, today, and the government agree. That’s why BDS is being banned in Germany and why Berlin recently told Roger Waters to shove it and why the main broadcasting company told Waters that they wouldn’t show his concert on TV or radio. Sorry ACLU, but this time you picked the wrong side and by siding with BDS you have sided with racism. It is not too late for you to swith sides and join the anti-BDS team. Most of us pity you because all the talk of the “South African Apartheid” BS convinced you to join the wrong side. Join us. Join Team anti-BDS before it is too late and we finally win.

Richard Wark

Your comment assumes that Israel should be accorded extra protection due to the holocaust. This logic if applied equally would require special treatment for a number of nations populated by those belonging to the many other groups who at some point were targets of hate. Further the assumed identity between Israel and Jewish is simply not the case. One of the largest supporters of BDS in the U.S. is Jewish Voice for Peace and surveys consistently show that support for Israel among American Jews is in decline. Also please note, that as far as the ACLU is concerned, the question here is not the rightness or wrongness of BDS but the United States Constitution.

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