The Latest Attack on Free Speech in the Israel-Palestine Debate

Members of Congress last month introduced the “Anti-Semitism Awareness Act.” The bill purports to address a real problem: According to the FBI, incidents of hate crimes motivated by anti-Jewish bias have significantly increased in recent years.

But anti-Semitic harassment is already illegal under federal law. The new bill does not change that fact, but its overbreadth makes it likely that it will instead silence criticism of Israel that is protected by the First Amendment.

The proposed legislation, for example, defines speech that applies a “double standard for Israel,” or denies “the Jewish people their right to self-determination,” as evidence of anti-Semitism. It also directs the Department of Education to consider such speech in its investigations, which could result in a loss of federal funding for schools. On Monday, the ACLU sent a letter to Congress opposing the bill. 

The ACLU does not take a position on the Israeli-Palestinian conflict, but it does take firm positions on efforts to stifle free speech. The threat of a federal investigation and subsequent loss of government funding will likely scare schools into suppressing speech critical of Israel. Students and teachers who criticize the Israeli government or advocate for Palestinian rights are the obvious targets. But freedom of speech will be the loser.

The bill is part of a disturbing surge of government-led attempts to suppress the speech of people on only one side of the Israel-Palestine debate. The trend manifests on college campuses, in state contracts, and even in bills to change federal criminal law, but the impact is the same: Those who seek to protest, boycott, or otherwise criticize the Israeli government are being silenced.

On college campuses, a growing number of students and teachers have been disciplined or threatened with discipline for engaging in actions in support of Palestinian rights or in opposition to Israeli policies. Student groups like Students for Justice in Palestine have been sanctioned for legitimate protests and even banned. Such attacks on free speech are likely to escalate now that the Trump administration has nominated Kenneth Marcus, who has led numerous campaigns to suppress student speech critical of Israel, to lead the Department of Education’s Office of Civil Rights. Marcus has  urged  people to file complaints of anti-Semitism with the Department of Education in response to criticism of Israel, arguing that the mere filing of such complaints, regardless of their outcome or merit, will pressure schools to suppress anti-Israeli criticism.

Outside campus life, campaigns aimed at excluding critics of Israel from participating in public events are mounting, often with support of publicly funded institutions. A Chicago-area public library temporarily cancelled a talk about a book titled “The Battle for Justice in Palestine,” before reconsidering its decision. The Missouri History Museum cancelled a community event titled “From Ferguson to Ayotzinapa to Palestine,” after organizers refused to remove Palestinian panelists.

In Nassau County, New York, local officials tried to stop a local arena from featuring a performance by Roger Waters of Pink Floyd because he advocates for a boycott of Israel. And, earlier this year, Florida officials attempted to prevent Lorde from performing in Miami and Tampa after she cancelled a concert in Tel Aviv. (All three shows went on.)

State legislatures have joined the effort. The South Carolina Legislature recently introduced budget language forcing public colleges and universities to use a definition that equates criticism of Israel with anti-Semitism. The definition is almost identical to the language used in the federal Anti-Semitism Awareness Act introduced in Congress. More than 100 other bills penalizing boycotts of Israel have been introduced in state and local legislatures in the last four years, and 24 states have enacted legislation targeting the boycott movement. Congress, too, is currently considering a bill that would make it a crime to participate in certain boycotts of Israel.

Many of these efforts clearly don’t withstand legal scrutiny. Earlier this year, in response to an ACLU lawsuit, a federal court in Kansas blocked that state’s anti-boycott law, recognizing that political boycotts of Israel are constitutionally protected and that the state can’t suppress or undermine them. The ACLU is challenging a similar law in Arizona, on behalf of a lawyer who was asked to certify that he doesn’t boycott Israel in order to renew his law firm’s contract to provide legal services to incarcerated people. Fourteen other states have laws similar to those in Kansas and Arizona. These laws have rightly attracted scorn and ridicule — most famously in Dickinson, Texas, which required Hurricane Harvey victims to pledge not to boycott Israel as a condition of receiving relief aid.

In 1943, Supreme Court Justice Robert H. Jackson famously wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” In other words: The First Amendment stands as a bulwark against government attempts to suppress dissent.

These efforts to  censor criticism of the Israeli government and advocacy for Palestinian rights do a disservice to the real problem of anti-Semitism in the United States. Addressing anti-Semitism is important and necessary, particularly in the current climate, but it does not require silencing constitutionally protected protest or expression.

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Anonymous

BDS is an attempt to stop Nazi Israel from gassing the Palestinians. If you are opposed to that, then you are an enemy of freedom. The US is supporting the terrorists by allying with Israel.

Anonymous

The aclu seems oblivious to the bds and SJP opposing Israel’s right to exist and desire to kill all Jews. They also don’t seem to care about advocates for Israel being attacked on college campuses and speakers being shouted down and sometimes silenced by anti- Israel protesters. Finally they don’t seem to realize that bds is being used to conduct an international war against Jews. Based on their adamant views regarding free speech, I wonder if the aclu would oppose a group advocating death to any member of their organization. The aclu is naively being used by the bds movement to aid them in their war against Israel and western values. They are “useful fools” as described by another former hate filled dictator.

Jewish American

I'm Jewish and have friends in SJP. They aren't interested in killing me, or anyone else.

Are you sure you want to label the Jewish membership of Israel-critical organizations like Jewish Voice for Peace or IfNotNow as anti-Semitic? I doubt that label will stick.

ACLU isn't supporting BDS, it's just pointing out that it's political speech, not "violence," and can't be silenced under the Constitution.
And if as a Jew, or as an American, regardless of my religion, I want to criticize or Boycott Israel, that is my right.

Anonymous

"opposing Israel’s right to exist and desire to kill all Jews"

If you didn't engage in or support land theft, terrorism, infanticide and apartheid then you wouldn't have to worry about the entire world wanting your sorry a$$e$ wiped off the planet.

Israel constitutes half of the world's problems.

Former donor

Anyone who says Israel is half the world’s problems should start reading something other than the DailyStormer.

Anonymous

Americans should be free to say about Israel anything they would be free to say about any other country. Anti-semitism is easily recognized and is different from opposition to a government policy.

Anonymous

Way to ignore the epidemic of anti-Zionists suppressing speech and deplatforming.

Anonymous

I find it jarring that the American CIVIL LIBERTIES Union doesn’t have a stance on the apartheid that Palestinians are living under. If you can’t boldly stand against such illegality and dehumanization, how can the ACLU be trusted to stand up for American freedoms (particularly those of black folks who traditionally bear the brunt of unconstitutional actions of the state).

Anonymous

Americans CAN speak out. Free Speech isn’t BDS. BDS is an action. People can BDS whenever they want. That’s not the issue here. Roger Waters is an antisemite. That’s fact. The concert place HAD the right, because it is theirs, to say “Yknow Roger, you’re a douche. Play somewhere else.” Unfortunately, the Jew hating racist scum at the ACLU, yes I said that, got involved and complained. Why do you think new black op groups have emerged like the Canary in the coal mine have emerged? Of course they are anonymous. Groups that want to do good now have to worry about White Nationalists, ISIS, Hamas, Hizbollah, BDS, Roger Waters, and the ACLU. Just quit it ACLU. You THINK you are doing good by defending promoters of the Anti Jewish Anti Israel movement that uses ECONOMIC Warfare, so terrorism, to hurt a US ALLY in hopes of helping to eventually DESTROY the country. BDS is ECONOMIC WARFARE. It is TERRORISM. Groups like SJP and MSA are only the student arms of the group and their job is to recruit the younger generation of terrorists. Stop supporting terrorism ACLU! Geez!

Anonymous

The ACLU has been corrupted over the years, as we can see here. What has the world come to when the ACLU spends the money of its Jewish members to lie to us and claim Students for Justice in Palestine is NOT a violent and disgusting group? Since when does you lying to us spread civil rights?!? The sad part is that the ACLU’s Jewish members pay for this guy to lie to us all, and claim it is groups like Students for Justice in Palestine that are having their speech stifled on American college campuses, where it is members of Students for Justice in Palestine who lthe ACLU should stand AGAINST, because they are anti-Semitic and iterally resort to violence on a regular basis against American citizens who you would think the ACLU would say also have civil rights, to stop Jewish voices from being heard? Meanwhile, the ACLU NEVER steps in to protect Jewish students in American anymore. Not the high school in New York. Not on any American college campus. When was the last time any of you read a story about the ACLU taking on a case to support a Jewish person in America over ANYTHING? I joined the ACLU during the Bush administration, and I quit after I realized its current bias against Jewish people. This group literally sits on the sidelines when Jewish civil rights are involved, with one and only one exception: When taking sides against Jews as it relates to BDS.

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