ACLU Commentary on Senate Bill Criminalizing BDS Published by Washington Post

Saturday 5 August 2017

ACLU Commentary on Senate Bill Criminalizing BDS Published by Washington Post

Posted on August 2, 2017

Sen. Ben Cardin (R), sponsor of the Israel Anti-Boycott Act, and Sen. Rob Portman, a co-sponsor of the bill

A couple of weeks ago I posted an article about the Israel Anti-Boycott Act, introduced in the Senate by Sen. Ben Cardin of Maryland. The ACLU at the time, as I mentioned in the post, had published an open letter warning that the bill would make it a felony for Americans to support the boycott of Israel and urging Congress members not to sign onto it. (At the time, 45 members of the Senate had signed on as co-sponsors; that number is now up to 46.)

Surprising as it may seem, an additional commentary on the bill, written by two ACLU officials, has been published by the Washington Post. The piece is authored by David Cole, an ACLU national legal director, and Faiz Shakir, national political director. Here is an excerpt:

The Israel Anti-Boycott Act, legislation introduced in the Senate by Benjamin L. Cardin (D-Md.) and in the House by Peter J. Roskam (R-Ill.), would make it a crime to support or even furnish information about a boycott directed at Israel or its businesses called by the United Nations, the European Union or any other “international governmental organization.” Violations would be punishable by civil and criminal penalties of up to $1 million and 20 years in prison. The American Civil Liberties Union, where we both work, takes no position for or against campaigns to boycott Israel or any other foreign country. But since our organization’s founding in 1920, the ACLU has defended the right to collective action. This bill threatens that right.

The Israel Anti-Boycott Act is designed to stifle efforts to protest Israel’s settlement policies by boycotting businesses in Israel and the occupied Palestinian territories. The bill’s particular target is the boycott, divestment and sanctions (BDS) movement, a global campaign that seeks to apply economic and political pressure on Israel to comply with international law.

Whether one approves or disapproves of the BDS movement itself, people should have a right to make up their own minds about it. Americans engage in boycotts every day when they decide not to buy from companies whose practices they oppose. Students have boycotted companies that sold clothing manufactured in sweatshops abroad. Environmentalists have boycotted Nestlé for its deforestation practices. By using their power in the marketplace, consumers can act collectively to express their political points of view. There is nothing illegal about such collective action; indeed, it is constitutionally protected.

In NAACP v. Claiborne Hardware Co., the Supreme Court in 1982 upheld the right of NAACP activists to hold a mass economic boycott of segregated businesses in Mississippi. The court stated that the boycotters’ exercise of their rights to “speech, assembly, and petition . . . to change a social order that had consistently treated them as second-class citizens” rested “on the highest rung of the hierarchy of First Amendment values.”

The Washington Post is owned by Jeff Bezos, and the paper’s decision to publish the commentary by Cole and Shakir suggests there may not be unity of agreement among wealthy US Jews about the advisability of having the First Amendment of the Constitution essentially gutted by a piece of pro-Israel legislation–this despite the fact that the bill has been strongly backed by AIPAC.

By the way, the website 21st Century Wire has published a commentary of its own on the matter, which includes the following:

The level of tyranny inherent in this new piece of legislation is breathtaking to say the least. Simply put – it’s a direct attack on the US First Amendment. What’s worse is that it’s being orchestrated from outside of the United States by a foreign entity…

By far, this is the biggest attempt yet by Israel at hijacking the US democratic system, albeit from within. If this bill passes, it will mark the near end of what remains of the sovereignty of the United States of America. That is no exaggeration.

They have also published the Cole-Shakir article in its entirety. You can go here to check it out.

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Update to this story:

Sen. Kirsten Gillibrand of New York, formerly a co-sponsor of the Israel Anti-Boycott Act, reportedly has withdrawn her support from the bill after taking heat from her constituents. From the Electronic Intifada:

In an act unprecedented in recent history, US Senator Kirsten Gillibrand took a stand this week in support of the right of Americans to boycott Israel by formally withdrawing her sponsorship of S.720, the Israel Anti-Boycott Act.

The New York Democrat’s withdrawal of her sponsorship comes after constituents repeatedly pressed her on her support of the bill at town hall meetings in New York City.

On 22 July in the Bronx, Gillibrand affirmed that “we are all allowed to boycott” in response to a constituent who laid out his concerns that the bill would criminalize those supporting boycotts of Israel.

At another town hall in Queens on 31 July, Gillibrand stated in response to similar concerns that she would not support the bill in its current form. She made good on her promise by notifying the Senate on 1 August that she wished to withdraw her sponsorship of the bill.

It is exceedingly rare for members of Congress to withdraw their sponsorship from bills. One veteran congressional staffer could recall only one instance of it happening in recent memory when a representative took his name off a bill regulating minor league baseball.