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

Why would we continue to enable Iran to become a nuclear power, giving them billions of cash, weaken Israel economically and degrade our own middle class, transforming our country to 3rd world status? The ACLU and the media and the democrats are anti American and wish to harm this country. Israel is our best friend in the world, for God's sake.

Anonymous

RE: "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." You mean like Saudi Arabia, the great ally of the U.S.? Or maybe the problem is that Saudi Arabia is proud of its intolerance, and actively promotes intolerance.

Anonymous

Its funny that no one boycotts China because of its occupation of Tibet, no one boycotts Russia because of its occupation of Crimea. no one boycotts the UK because of its occupation of Diego Garcia. No one boycotts turkey because of its occupation of Cyprus. The monkey knows who's back to jump on.

American

Cardin's a Zionist jew. His loyalty is not to the American people, but to israel. How do these creeps get elected - hear that Maryland?

Anonymous

So tell me again: What foreign power meddles in US politics and oppresses US citizens?

Karen Greenberg...

There MUST be no limits whatsoever on our First Amendment freedoms. That's what the framers in tended and what Americans have always believed and will continue to believe. It's a fundamental value of our country and what makes us great. Otherwise we may as well be any stinking dictator- ship, for we'd be just as bad. Government MUST not suppress any political expression (religion, speech, print, assembly) that it disagrees with.

Anonymous

This is why the democratic party cannot be reformed. Their leadership loves corporate money as much as the republican do. Israel has been committing human rights abuses and war crimes against the Palestinians since well...……….

Anonymous

Since, well . . . . Yitzhak Rabin was assassinated by a Jewish extremist!

dgeorge

There are limits on free speech when it advocates physical harm or creates an imminent danger. Neither of these constraints apply, here, so the only purpose advocacy of this legislation might serve is political on the part of those who want suport from single-issue Israel voters. Dangerous and worthy of ACLU scrutiny. Thank you ACLU for calling it to our attention.

Peermohamed

The question should b asked is - is this bill going to protect the American public? Or is in the intereest of protecting another state (Israel) by discriminating others? Are Americans that stupid?

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