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

" The bill isn’t going to curb free speech because people can always say whatever they want." According to the supreme court money is speech. Who and what I choose to support or not support with my $ is protected. I also thought capitalism was big on free markets.

Kathryn Jordan

Our Congressional leaders, BOTH minority and majority, NEED to read the First Amendment and understand that they are trying to take away American Citizen's constitutional rights to protest. What they are trying to do is UNCONSTITUTIONAL. Our First Amendment rights are at stake. If these Congressional leaders do this, we need to take it to the United States Supreme Court and fight it!

Anonymous

Good luck. Remember the Nazis. BDS was free speech for them. And it led to the Holocaust. It lead to what Hitler hoped to do: extermination of an entire race of people. Suggest you read up on your history. Germany has learned from their past mistakes and doesn’t want them repeated. In Germany, all of Europe, and America. Sounds like you may be a Roger Waters fan. That guy is a horrible individual. If we don’t learn from the past mistakes we are doomed to repeat them. There also is a clear difference between hate speech and free speech. ISIS thought they deserved free speech by utilizing social media to recruit followers and spread fear and hate. Sorry, but terrorists don’t deserve free speech. If you think ISIS deserves/deserved free speech, you really need to look at your last post and decide if the Supreme Court should hear if that was a breach of 1st Amendment rights and Unconstitutional.

Anonymous4

This reply is to the anonymous poster.

"There also is a clear difference between hate speech and free speech."

Not according to the First Amendment and SCOTUS. This is America.

The person above me who commented has no idea that most hate speech is legally protected. Plans for treason are not. Additionally, it's not hate speech to boycott a violent nation committing war crimes against the wishes of most of the jewish people. Your comment was spot on; pay them no mind.

Anonymous

BDS all the way!!!!

Anonymous

This must not happen. Congress can't undermine the free will & expression of the american people.

Anonymous

I'll be boycotting publicly the very next day.

It astounds me what a double standard we have for Israel versus other middle eastern nations in this country. If any other nation in that area were committing war crimes, breaking international law, committing human rights violations, and trying to censor journalism and quash protests, NOBODY would support a bill in favour. "But Israel is a Jewish state! It's anti-semitic to oppose the things they do!" If a muslim majority nation employed sharia law (the martial variant) and then said it was anti-muslim to oppose them, nobody would listen to that nonsense. The Israeli government continues to act counter to the wishes of almost all of the jewish peoples, even the ADL at times, and then tried to censor and quash criticism by claiming to really have the authority of religion on their side. You're not G-d, you don't have that authority. Only the jewish people can say what they wish for themselves, and Israel does not embody the wishes of any but the most radicalized Israelis, jewish or otherwise. Israel is a nation fist and foremost. It is a jewish majority nation, yes, but it is still a nation. It must begin to act like one.

AnonymouS

I have often been unsure of whether Israel considers themselves a nation (Israel), a religion (Jewish), or a race (descendants ONLY of Jacob whose name became Israel). I could ask the same question about "Hebrew," whether a nation, religion, or race. I've asked some Jewish people that question, and it came across as an uncomfortable inquiry of their political, religious, and racial heritage. Add "landowner" or "banker" and then you've got an occupation/career distinction too.

Every person has some attributes that line up with nationality, religion, race/skin color, and occupation; but some like to isolate one for the others -- like Evangelicals who espouse the authority of Christ, but not the actual principles of his teachings, and who say they are patriotic but break the ethics of the nation's values, plus who prefer white people in their congregations perhaps like Mormons. Their selective perception of the circumstances supports their biases. I personally don't think boycotting Israel alone would be necessary EXCEPT where they are taking others' land in the occupied territories, and any business activity there I would seek to not do business with and I would avoid buying their products. Keep in mind, Israel IS occupying those lands and they ARE boycotting their products through the means of a ongoing blockades of the Palestine people -- and in a sense is operating a type of Jewish apartheid in their present government's legislation segregating non-Jewish Israeli citizens.

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