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Marco Rubio and His Colleagues Need a Refresher on the First Amendment

U.S. Senator Marco Rubio of Florida speaking at the 2016 Conservative Political Action Conference (CPAC) in National Harbor, Maryland
U.S. Senator Marco Rubio of Florida speaking at the 2016 Conservative Political Action Conference (CPAC) in National Harbor, Maryland
Kate Ruane,
Former Senior Legislative Counsel,
Abdullah Hasan,
Former Communications Strategist,
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January 9, 2019

This week, amid a partial government shutdown, senators tried to sneak through a bill that would encourage states to suppress constitutionally protected political boycotts of Israel.

Ultimately, the Combating BDS Act failed to make it to the Senate floor, largely because enough people exercised their First Amendment right to protest the bill and educate senators that they should get their priorities straight. But it seems that’s not the only education that is in order.

The recent spate of bills that seek to penalize Israel boycotts is a bipartisan problem. Many Senate Democrats blocked the Combating BDS Act this week, rightly arguing that Congress should end the government shutdown rather than making this the first order of business of the new session. But four Senate Democrats voted to pass the bill, and many others, including Sens. Chuck Schumer (D-N.Y.) and Ben Cardin (D-Md.), have expressed support for other anti-boycott efforts, even when they have come at the expense of our constitutional rights.

This week, however, Sen. Marco Rubio (R-Fla.) led the charge, and even took to Twitter to spread a number of perplexing and often downright false statements about the First Amendment and the Combating BDS Act.

Here’s what Sen. Rubio got wrong:

Fiction: Local and state governments should be free to end contracts with companies that boycott Israel.

Senator Rubio suggested that not only should states be free to boycott the boycotters, they have the right to boycott them. That’s a troubling proposition, and one specifically prohibited under the Constitution.

First Amendment rights belong to the people, not the government. The government cannot impose its views on people or punish them for expressing views that the government disagrees with. This principle applies to both individuals and companies doing business with the state, and with full force to politically motivated boycotts. Two federal courts recently affirmed this, blocking laws in Arizona and Kansas that penalized individuals and companies for boycotting Israel. And this principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other “subversive groups” in order to keep their jobs.

The ACLU successfully challenged many of those laws on constitutional grounds — just as it’s now fighting unconstitutional state laws suppressing lawful boycotts of Israel — and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same should happen to the laws requiring people to pledge not to boycott Israel as a condition of doing business with the government.

Fiction: The Combating BDS Act ‘doesn’t punish any political activity.’

That’s what Sen. Rubio tweeted to his followers on January 7. Less than a day later, he tweeted that his bill “allows local & state govt’s to boycott the boycotters.” That, by definition, is state-sponsored punishment for a constitutionally protected activity, and it’s what the First Amendment seeks to protect people from.

Representative Eliot L. Engel (D-N.Y.), told The Washington Post that he prefers another bill, the Israel Anti-Boycott Act, because, he argued, it seeks to address constitutional concerns about the Combating BDS Act. That’s also false. Both bills come from the same unconstitutional playbook and make a mockery of the First Amendment. In fact, the Israel Anti-Boycott Act takes it to another level, imposing criminal penalties of up to $1 million on individuals or companies boycotting Israel or any foreign country if the boycott were called for by international governmental organizations like the United Nations. Senators Diane Feinstein (D-Calif.) and Bernie Sanders (I-Vt.) similarly expressed concerns that the bill violated the First Amendment.

Fiction: Opposing anti-BDS laws is de facto support of BDS.

Not true. The ACLU doesn’t take a position on boycotts of Israel, but we have long defended the right to boycott, which is a proud part of America’s constitutional tradition and protected by the First Amendment. And we’re not the only ones. A number of members of Congress — many of whom who don’t take a position on the Boycott, Divestment, and Sanctions movement or have even expressed opposition to it — have First Amendment concerns with the bill.

Whatever your views on BDS, we all should be able to agree that the government has no business telling us which causes we can or cannot support.

Marco Rubio and his colleagues may not agree with the BDS movement, and they have a First Amendment right to express that. But public officials cannot use the power of public office to punish views they don’t agree with. That’s the kind of authoritarian power our Constitution is meant to protect against.

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