Op-ed by Lara Friedman originally published on Medium, March 19, 2018. For a compendium of resources and expert views on the threat to free speech posed by allegedly pro-Israel/anti-BDS bills in Congress & states, see FMEP’s regularly updated post: Constitutionality Issues & BDS Legislation: Expert Views
In the turbulent Trump era, concern about free speech is a bipartisan affair. Republicans decry efforts to silence voices of the political and religious Right; Democrats celebrate protests against the Trump administration and its policies. At the same time, however, lawmakers from both parties are working together to erode the First Amendment, in a joint effort to create a new political free speech exception for Israel. The potential ramifications of this effort are far-reaching and should provoke deep bipartisan alarm.
In Congress, these efforts take the form, most prominently, of pending legislation — long a key element of AIPAC’s legislative agenda — that would criminalize many voluntary boycotts of Israel or Israeli settlements, if the decision to boycott is undertaken in support of a call by the United Nations or the European Union. Grounded in the clear goal of preventing pressure on Israel for its policies vis-à-vis the territories it occupied in the 1967 War, most notably with the construction of civilian settlements, this legislation is justified as nothing more than an “update” to existing U.S. laws that prohibit compliance with the Arab League boycott of Israel. This justification discloses at best a flawed understanding either of the new legislation or existing law, and at worst a deliberate effort to deceive the public about both.
In fact, the Arab League’s policy is coercive, requiring a boycott of Israel as a condition for doing business with its member states. Thus, businesses that comply with the Arab League boycott in order to maintain trade with member states are not seeking to exercise their political free speech rights. In contrast, neither the EU nor the UN call for, let alone compel, boycotts of Israel. Moreover, the policy they do support — calling for differentiation between sovereign Israel and the occupied territories, consistent with international law — has no coercive element.
An American’s decision to boycott Israel or settlements as a means of making a statement about Israeli policies — whether or not that decision has any relation to EU or UN policies — is not a case of coerced behavior in which U.S. citizens or companies are, in the words of the office charged with fighting the Arab League boycott, “being used to implement foreign policies of other nations…” Rather, it is a case of constitutionally protected expression, consistent with the landmark Supreme Court ruling that found that boycotts are a form of political free speech protected by the First Amendment. Accordingly, the American Civil Liberties Union (ACLU) has denounced the pending legislation as unconstitutional and suggested that, if it took effect, there would likely be a court challenge. Likewise, CATO Institute fellow Walter Olson observed that, “By punishing boycott participation grounded in political belief, it [the legislation] would infringe on individual liberty.”
Even Americans who don’t care about Israel-Palestine issues should be deeply concerned about the broader implications of this wrongheaded legislative effort, given the extraordinary breadth of issues on which the views of current U.S policymakers differ dramatically from those of the UN, EU, and most of the world. On issues like climate change, LGBT rights, refugees, or animals (think ivory trade bans versus the Trump Administration’s decision to lift the ban on elephant hunting), it requires little imagination to see how criminalizing Americans’ participation in political boycotts of Israel could pave the way for further infringements to Americans’ right to support or join internationally-backed protests on other issues.
Concurrently, laws are being introduced in state legislatures across the country — and enacted in more than 20 states so far (three by Executive Order) — barring states from doing business with Americans who refuse to actively renounce their right to boycott Israel and Israeli settlements. State legislators and governors continue to pursue and defend such legislation, despite: (a) the Supreme Court’s ruling on boycotts, (b) the fact that requiring a person to relinquish a right protected under the Constitution in order to receive a government benefit is the definition of an “unconstitutional condition,” (c) constitutional concerns raised by various groups concerned about free speech, and (d) a categorical ruling against the Kansas version of the law in January 2018, handed down by a federal judge. That ruling found that the First Amendment fully protects political boycotts of Israel, and that the law in question was fundamentally designed to achieve, “impermissible goals under the First Amendment…”
Like the effort at the federal level, the potential repercussions of these state laws are alarming, as they provide a template for free speech-quashing legislation on virtually any politicized issue. For example, in states that have adopted conservative definitions regarding when life begins or rights of a fetus, minimal tweaks could transform an Israel gag law into one requiring that, as a condition for state contracts, individuals and companies certify they do not support Planned Parenthood. Other tweaks could produce legislation prohibiting contracts with supporters of movements engaging in civil disobedience — as a possible means of targeting Black Lives Matter or Dakota Pipeline protesters, for example. The template could likewise be adapted to target those engaged in boycotts of, say, any organization operating legally in a given state — as a possible means of shielding groups like the National Rifle Association from pressure. In short, this template could be re-purposed to bar contracts with individuals or groups affiliated with or supportive of any political cause or organization — from the political Left or Right — that the majority in a legislature or the occupant of a governor’s office deemed undesirable.
In this highly partisan, intensely politicized phase of U.S. history, lawmakers who support a free speech exception for Israel — whether for reasons of ideology or political expediency — run the risk of shoving the country down a very slippery slope that ends in a broad assault on the First Amendment. The dangers inherent in such an assault cannot be overstated. Free speech is the bedrock of America’s democracy. It is not absolute, but the exceptions recognized by the Supreme Court do not permit the suppression of political speech, especially speech that may be unpopular or run counter to the views of those currently in office. Regrettably, lawmakers thus far appear entirely indifferent both to the avoidable legal costs these Israel gag laws will inflict on tax payers, and to the far heavier costs they threaten to impose on American democracy.