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

JVP is a joke and known to have some loons as part of their organizations. Canary Mission has found information that proves my comments to be true. Some of the information provided by CM shows racism - racism is an understatement. Please don’t mention JVP because the organization is a JOKE. They’ve been called out. CM, as a Watchdog, is one of the best around. JVP isn’t a decent organization and should be mentioned as a horrible, and racist, organization. Your comment shows complete bias and racism. Just because JVP are Jews doesn’t mean they aren’t whackadoos. JVP supports Electronic Intifada - one of the most Pro Hamas and Hezbollah “organizations” on the planet.

The government of the nation of Israel, acting counter to the wishes of many jews worldwide, has broken international law and committed human rights violations. Congress wishes to make it illegal to boycott the nation of Israel. I don't know about you, but that sounds like it has nothing to do with religion or race to me, especially since the nation of Israel has arab and muslim etc citizens.

Anonymous

"BDS is what the Nazis did before the Holocaust"

There was no Israel before the Holocaust, you little ninny.

John

Except in Germany it was a state imposed mandatory BDS (if you will) and what we have here is individual citizens expressing their opinions buy not buying something.

Anonymous

So you’re a Zionist who honestly believes that Jews are superior over other human beings. You are what’s wrong with society today. But that’s okay because karma is a real bitch

Flaque

Whether it's a cake decorator, a minuscule country of aggressive zealots, or a maniacal Mango Misfit in our oval office, we have every right to protest their repugnant actions. And the worst decline in politics since the Civil War has been foisted upon us by the knuckle-draggers of the regressive right.

Anonymous

The German government and people don’t want to repeat the past mistakes that happened before the Holocaust when the Nazis came to power. The person that made that comment is absolutely correct. The person from the last comment is also absolutely correct about Roger Waters. Waters is notorious for his anti Israel hate and bigotry. BDS is a horrible thing. The bill isn’t going to curb free speech because people can always say whatever they want. Nobody, including the government, is going to stop them. The ACLU needs to walk away from this fight before they hurt their reputation by lumping themselves into the same category as Roger Waters.

Dr. Joseph Goebbels

Roger Waters? Isn't he the guy that Pink Floyd fired years ago? What does he have to do with anything?

Financial contributions are an extension of free speech. Forcing people not to boycott a corrupt and aggressive nation that has broken international law and committed human rights violations AGAINST THE WISHES of many of the JEWISH PEOPLE, especially in the diaspora, is unconstitutional at the very least and fascist at the very worst. Rethink your perspective. Israel is a nation first and foremost.

Anonymous

If what you say leads to government retaliation, then you can't say whatever you want. That's the entire point.

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