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

Freedom of speech has to apply across the board; either everyone can be criticized or no one can be criticized. You can’t have freedom of speech and have protected groups, of any sort, for any reason!! This horrendous era in our political and cultural history reminds me of the Zig Ziglar quote: “Some people look for faults like there’s a reward for it .”

Anonymous

I have no problem in criticising Israel for thing it has done but the reality is that most of the boycotting groups criticise it for thing and actions that are invented. This is antisemitism. Things like the false statement by Lyle Boggs here that Israel is an apartheid state which it most certainly is not. These groups do nothing to promote the cause of peace and in fact just exacerbate the situation. In real terms the boycott has succeeded only in depriving many Palestinians of employment since companies like Sodastream have closed their factories in the West Bank due to that location particularly annoying the boycotters. Even though it provided equal opportunities for local Palestinians, something that their own leadership does not.

Anonymous

What are you talking about?? Israel just recently banned a bill that tried to define Israel as a country where equal rights apply to all of it's citizens regardless if you are Arab or jewish. If this is not a clear demonstration of apartheid, I don't know what is.

Anonymous

City of Austin requires recipients of culture arts grants to sign a form that they will not boycott Israel as a condition of receiving civic funding.

Anonymous

When was the US government purchased by the Israelis...?

Anonymous

This bill seeks to deny legitimate criticism by conflating it with antisemitism. It is about human values and moral decency that goes beyond culture and religion. There is no dignity in violating human rights and hiding behind the banner of antisemitism when met with legitimate criticism as if you were except from international laws.

Anonymous

It seemed strange to me to read on the one hand that Jews are by far the biggest victims of hate crimes and violations of civil rights in America, while on the other hand every story I read about what the ACLU is doing has nothing to do with Jews, except all their hard work to support the boycott of the world's only Jewish state. Article after article,,"ACLU declines to take up anti-Semitic New York public school case" is followed by "ACLU sues to protect gay couple seeking a wedding cake" followed by "ACLU refuses to weigh in on stifling of Jewish voices and violence against Jews on American college campuses" followed by "ACLU sues to protect neo-Nazi speech rights" and "ACLU sues to protect Trump supporter's sign on his farm" and "ACLU sues to protect Muslim rights" is followed by "ACLU declines to weigh in when college students reject Jewish student body president by equating her membership in Hillel with support for Israeli policies vis a vis the Palestinians". Day in, day out. Year in, year out. So, I just googled "ACLU sued Jewish", to see if the ACLU ever weighs in to support Jewish people or causes in America anymore. Guess what? The only articles that came up were from 1999! The ACLU sued over a Star of David ban all the way back in 1999. What the hell have you done for us Jews lately, ACLU, except take our donations and use them to support the boycott the world's only Jewish state?

Jewish American

The ACLU isn't supposed to do things "for us Jews lately"-- It's supposed to defend the Constitution of the United States.

And regardless of that I am Jewish, I also believe in the part of the Constitution that requires a separation of Church and State. This is a principle which is violated in the very premise of "the world's only Jewish state," a state which systematically discriminates against citizens and residents on the basis of their religion.

Through its defense of BDS as free speech, the ACLU is defending the 1st amendment in more ways than one, and incidentally also defending people's right to agitate in favor of Jewish values: respect for one's neighbors, not to kill, and not to steal.

I'll tell my SJP friends you think they want to kill me, and we'll all have a good laugh.

Anonymous

Clearly you don't see Jews as Americans, otherwise you would said so, there Jews all over the world, like Christians, Muslims and Buddhists. But people identity people by countries, not religion. So stop crying wolf and Stop saying Jews are not part of American community, they are American citizens, not some foreign outsider who doesn't belong in USA

Anonymous

Thank you ACLU. This is clearly an abuse of power. Especially disturbing is making hurricane victims sign statements pledging not to boycott Isreal. That's extortion. Requiring people in desperate straits to give up their 1st amendment rights just to seek relief from a dire situation? That is an outrageous abuse of power.

Thank you for working hard to end such an authoritative unamerican practice.

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