This Anti-BDS Bill Is an Assault on Free Speech

Hypocrisy among the American political class is not all that unusual, but sometimes the naked expression of it takes on shocking proportions.

Proposed federal legislation known as the Israel Anti-Boycott Act, which attempts to criminalize the boycott, divestment and sanctions (BDS) campaign for Palestinian rights, is a perfect example.

The American Civil Liberties Union (ACLU) recently issued a letter urging the 46 US senators — 32 Republicans and 14 Democrats — who have co-signed the Senate version of the bill, S. 720, to reconsider their support. A similar House measure has support from 185 Republicans and 64 Democrats.

According to the statement:

Under the bill, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment — even though there are many others who engage in the very same behavior. In short, the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment…

By penalizing those who support international boycotts of Israel, S. 720 seeks only to punish the exercise of constitutional rights.

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If passed, the Israel Anti-Boycott Act would have chilling implications not only for supporters of Palestine, but also anyone who cares about the right to dissent in the Trump era. The bill not only exposes the hypocrisy of politicians who trumpet the right to free speech while they pass legislation to undermine it, but it also should serve as a cautionary tale for how the issue of “free speech” can be weaponized in ways that target dissenters while defending corporate power and apartheid states.

Apartheid Israel, for example, regularly violates the right to free speech, academic freedom, the right to a fair trial, indeed the very right to life of Palestinians living under its settler-colonial regime.

Thus, it’s no surprise that the American Israel Public Affairs Committee (AIPAC), the fiercely pro-Israel lobbying group, helped draft the bill and considers its passage a top priority for 2017.

The bill seeks to amend two pieces of legislation — the Export Administration Act of 1979 and the Export-Import Bank Act of 1945.

While these two laws currently criminalize compliance with the Arab League boycott of Israel, the newly proposed legislation seeks to expand their scope to include other “international boycotts of Israel,” such as those that originate in the European Union or the United Nations, though the bill’s main target is the BDS movement.

If passed, the felony charges associated with the previous bills would apply in relation to BDS, exposing “perpetrators” to a jaw-dropping minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

While Israeli settlements in the occupied West Bank are illegal according to the Fourth Geneva Convention, the proposed legislation does not differentiate between boycotts that target Israel as a whole from those that specifically target settlement production — causing even J Street, a pro-Israel advocacy organization openly hostile to BDS, to come out against the bill.

As Dylan Williams of J Street wrote:

This bill could give Attorney General Jeff Sessions the power to prosecute any American who chooses not to buy settlement products for a felony offense. That kind of authority should not be given to any administration, let alone one that has engaged in extreme rhetoric against political opponents, including threats to ‘lock [them] up.’

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It should be noted that this bill and others like it that attempt to criminalize BDS have nothing to do with stopping anti-Semitism.

As Ryan Grim, Washington bureau chief for The Intercept, said on Democracy Now! in response to Sen. Chuck Schumer’s claim that BDS is “veiled anti-Semitism”:

The irony here is that [this bill] doesn’t criminalize all boycotts of Israel. So if you are a neo-Nazi group, and you are driven by explicit anti-Semitism, and you call for a boycott of Israel, you would not fall under this statute. Only if you’re supporting BDS through the EU or through the UN from a pro-Palestinian perspective would the precise same action then be criminalized. And for the ACLU, that is the definition of a First Amendment violation, because the same act becomes criminalized only based on your political motivation for carrying out that act.

But besides the conflation of Zionism and anti-Semitism, this bill also exposes the hypocrisy of politicians and other mainstream institutions, such as college campuses and the mainstream media, which have recently championed the First Amendment when it comes to defending the right of racists to speak and mobilize, yet casually dismiss the right to free speech when it comes to advocacy on behalf of Palestinian rights.

For example, while there have been dozens of articles about the new “free speech wars” at the University of California-Berkeley after students protested right-wing speakers Ann Coulter and Milo Yiannopoulos, there has been only a faint whisper about the egregious free-speech violations embedded in the Israel Anti-Boycott Act.

The bill also exposes the hypocrisy of politicians who boast about their free-speech credentials, yet turn a blind eye to the denial of free speech to pro-Palestine activists.

As Josh Israel noted at Think Progress, just three years ago, in considering an amendment that would have overturned Citizens United, several senators who are co-sponsors of the anti-BDS bill objected strongly on the basis of the free speech rights — of corporations.

“Could we really have entered a world so extreme that our common ground no longer even includes the First Amendment of the Constitution?” said Sen. Ted Cruz (R-Texas) in a floor speech at that time.

Sen. Pat Roberts (R-Kansas) also waxed eloquently about how the cause of democracy is served by enshrining the right of corporations to buy and sell politicians like so many talking billboards:

In our system of government, all voices have the right to be heard. The First Amendment gives them that right… We have a system that allows all voices to be heard, even those that oppose the majority. That is not antithetical to democracy; it is the essence of democracy. So it is time, it seems to me, to stop pretending that allowing more voices to be heard somehow poses a danger just because we don’t like what they are saying.

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Both Cruz and Roberts have co-signed the anti-BDS bill, illustrating how these politicians will use the First Amendment to stand up for corporate rights to buy elections, but when it comes to Israel they are all too happy to sign off on legislation that could imprison activists in the US for decades simply due to their political beliefs.

Perhaps more counterintuitive is the support of liberal Sen. Ron Wyden (D-Oregon) for the anti-BDS bill.

Wyden is known for speaking out against the National Security Agency for violating American citizens’ right to not be spied on as well as being a staunch proponent of net neutrality.

Furthermore, in late May, Wyden stood up for the right of neo-Nazis to hold a demonstration in Portland, Oregon, back in June when he opposed Portland Mayor Ted Wheeler’s problematic plea to the federal government to revoke their permit.

“The First Amendment cuts both ways, that’s why it’s so special,” Wyden told the media. “The challenge is going to be for the officials in our community to find ways to deal with [the growth and confidence of the right] that don’t, in effect, set aside the Constitution.”

Yet Wyden is one of many Democratic backers of the anti-BDS bill, illustrating the all-too-familiar bipartisan “Palestine exception” when it comes to free speech for pro-Palestine activists.

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In addition to speaking out and organizing against the passage of the anti-BDS bill, we should take its proposal as a stark reminder of the potential danger posed by liberals and progressives who call on the state or university administrators to ban hate speech or far-right mobilizations.

Such calls to ban right-wing speech do more to embolden the right by allowing them to play the victim than it does to weaken their forces.

Furthermore, because the definition of what constitutes “hate speech” is made by politicians, such calls end up legitimating their power when their use of such bans invariably end up getting aimed at left-wing dissenters who pose a much greater threat to their interests than right-wing ones.

Take Steven Salaita, the professor who lost his job at the University of Illinois at Urbana-Champaign for his vocal support for Palestine during Israel’s 2014 bombing of Gaza.

Salaita recently announced he is leaving academia because, despite having done nothing illegal and despite being a respected academic, pro-Israel forces have undermined his ability to secure a teaching job on four continents. Salaita is only one of several scholars targeted for speaking out against racism, sexism and imperialism since Trump’s election.

Back at UC Berkeley just last fall, the administration suspended a student-led class on Palestine titled “Palestine: A Settler-Colonial Analysis” due to its political content.

These are just the tip of the iceberg of a fierce campaign to silence the speech of students, professors and activists who speak out about Palestine and challenge Israel’s human rights abuses.

Our side must not only continue to stand up for Palestine, but also continue to defend free speech at every turn. That right is not only one we have historically fought for and defended, but one we will need at every step in the fight for our freedom, which itself will be linked to freedom and justice for Palestine.

John Monroe and Mukund Rathi contributed to this article.