The American Civil Liberties Union (ACLU) wrote to members of Congress this week to warn them that a piece of legislation gaining steam in the House and Senate, aimed at protecting Israel from any economic boycotts, was a flat-out violation of the United States constitution. While at least one House sponsor, Rep. Joe Kennedy III (D-MA), has already said he will review the bill in light of the group’s concerns, so far none of the 46 Senate or 238 House sponsors and co-sponsors has withdrawn support — even those who have been the most fervent critics of other restrictions on speech.
Known as the Israel Anti-Boycott Act, the legislation would expand existing laws to prohibit Americans from “requesting the imposition of any boycott by a foreign country against a country which is friendly to the United States” and from “supporting any boycott fostered or imposed by an international organization, or requesting imposition of any such boycott, against Israel.” According to the ACLU’s letter, this would mean penalties — including up to 20 years in prison and fines between $250,000 and $1 million — for advocating for or even requesting information about a boycott of the state of Israel.
While the bill has attracted both Democratic and Republican support, some of the people who have signed on to this bill have been among the most vocal critics in the past of other measures they considered to be limiting to free speech.
Just three years ago, when the Senate considered a constitutional amendment to overturn the Supreme Court’s 5–4 Citizens United ruling and allow limits on political spending by corporations and tax-exempt political groups, many of the current co-sponsors of this legislation objected strongly.
Sen. Ted Cruz (R-TX), a co-sponsor of this bill, was perhaps the loudest critic of efforts to overturn the controversial ruling. “Typically, when Americans hear that members of the Senate are proposing repealing the free speech protections of the First Amendment, the usual reaction is a gasp of disbelief,” he argued in a floor speech. “Could we really have entered a world so extreme that our common ground no longer even includes the First Amendment of the Constitution?”
In a Wall Street Journal op/ed, Cruz wrote, “Speech is more than just standing on a soap box yelling on a street corner. For centuries the Supreme Court has rightly concluded that free speech includes writing and distributing pamphlets, putting up billboards, displaying yard signs, launching a website, and running radio and television ads.”
Several of his colleagues were similarly incensed.
His fellow Texan, Senate Republican Whip John Cornyn, agreed. “I guarantee that none of my constituents suggested we need to repeal the First Amendment to the U.S. Constitution.” He decried the amendment as a “show vote to try to deny people an equal opportunity to participate in the political process — to shut them out if you disagree with them and silence them. Tell them to sit down, be quiet, we are in charge and in control.”
Sen. Deb Fischer (R-NE) told colleagues that over the preceding five weeks visiting constituents, “[n]ot a single Nebraskan told me to go back to Washington and vote to limit free speech.” She decried the effort as gutting “the First Amendment and the principles of free speech that have endured since the Bill of Rights was ratified in 1791,” and said it “would actually diminish democratic participation and decrease freedom.”
Sen. Chuck Grassley (R-IA), who now chairs the judiciary committee, lamented that it would “amend the Bill of Rights and do it for the first time. It would amend one of the most important of those rights — the right of free speech. The First Amendment provides that Congress shall make no law abridging freedom of speech.”
Sen. Orrin Hatch (R-UT) joined in the opposition. “Supporters of this radical proposal apparently believe that freedom itself is the problem,” he suggested. “That view is contrary to the most fundamental principles of this republic, and incompatible with a free society. Freedom is not the problem, it is the solution.”
Sen. Pat Roberts (R-KS) added: “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 the 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.”
Like Cruz, all five are currently co-sponsors of the Anti-Israel Boycott legislation. This is hard to square with their claims that Congress should never interfere with the protected right of free speech.
“Our concern is that this proposed legislation would impose criminal penalties for simply having certain political beliefs or exercising free speech rights,” ACLU National Political Director Faiz Shakir told ThinkProgress. “That’s a clear First Amendment violation and would send a chilling signal at a time when you already have a president seeking to stamp out opposing viewpoints.”
The bill is clearly a response to those who want to boycott Israel, divest from its businesses, and enact sanctions against the country as pressure to end its occupation of Palestinian territories — a campaign known as BDS. But rather than use their own speech to make a case to Americans as to why they believe efforts to boycott, divest, and sanction Israel are wrong, the supporters of this bill would simply attempt to criminalize advocacy for the opposite view.
This is precisely the sort of legislation that the Ted Cruz of 2014 warned against when he said, “Perhaps I have forgotten my spectacles, but I don’t see in the current First Amendment, Congress can make reasonable restrictions on the freedom of speech. It doesn’t say that. It says Congress shall make no law abridging the freedom of speech. What is the difference? The First Amendment is not about reasonable speech. The First Amendment was enacted to protect unreasonable speech. I, for one, certainly don’t want our speech limited to speech that elected politicians in Washington think is reasonable.”