Protecting Israel from principles of free speech

Around 300 people protest outside Governor Andrew Cuomo’s office in New York City. Photo by Mark Apollo, Pacific Press/LightRocket via Getty Images

U.S. Lawmakers Seek to Criminally Outlaw Support for Boycott Campaign Against Israel

By Glenn Greenwald and Ryan Grim, The Intercept
Published July 19, 2017

THE CRIMINALIZATION OF political speech and activism against Israel has become one of the gravest threats to free speech in the West. In France, activists have been arrested and prosecuted for wearing T-shirts advocating a boycott of Israel. The U.K. has enacted a series of measures designed to outlaw such activism. In the U.S., governors compete with one another over who can implement the most extreme regulations to bar businesses from participating in any boycotts aimed even at Israeli settlements, which the world regards as illegal. On U.S. campuses, punishment of pro-Palestinian students for expressing criticisms of Israel is so commonplace that the Center for Constitutional Rights refers to it as “the Palestine Exception” to free speech.

But now, a group of 43 senators — 29 Republicans and 14 Democrats — wants to implement a law that would make it a felony for Americans to support the international boycott against Israel, which was launched in protest of that country’s decades-old occupation of Palestine. The two primary sponsors of the bill are Democrat Ben Cardin of Maryland and Republican Rob Portman of Ohio. Perhaps the most shocking aspect is the punishment: Anyone guilty of violating the prohibitions will face a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

The proposed measure, called the Israel Anti-Boycott Act (S. 720), was introduced by Cardin on March 23. The Jewish Telegraphic Agency reports that the bill “was drafted with the assistance of the American Israel Public Affairs Committee.” Indeed, AIPAC, in its 2017 lobbying agenda, identified passage of this bill as one of its top lobbying priorities for the year:

The bill’s co-sponsors include the senior Democrat in Washington, Minority Leader Chuck Schumer, his New York colleague Kirsten Gillibrand, and several of the Senate’s more liberal members, such as Ron Wyden of Oregon, Richard Blumenthal of Connecticut, and Maria Cantwell of Washington. Illustrating the bipartisanship that AIPAC typically summons, it also includes several of the most right-wing senators such as Ted Cruz of Texas, Ben Sasse of Nebraska, and Marco Rubio of Florida.

[Update – July 20, 2017: Glen Caplin, senior advisor to Gillibrand, sends along the following statement: “We have a different read of the specific bill language, however, due to the ACLU’s concerns, the Senator has extended an invitation to them to meet with her and discuss their concerns.”]

A similar measure was introduced in the House on the same date by two Republicans and one Democrat. It has already amassed 234 co-sponsors: 63 Democrats and 174 Republicans. As in the Senate, AIPAC has assembled an impressive ideological diversity among supporters, predictably including many of the most right-wing House members — Jason Chaffetz, Liz Cheney, Peter King — along with the second-ranking Democrat in the House, Steny Hoyer.

Among the co-sponsors of the bill are several of the politicians who have become political celebrities by positioning themselves as media leaders of the anti-Trump #Resistance, including three California House members who have become heroes to Democrats and staples of the cable news circuit: Ted Lieu, Adam Schiff, and Eric Swalwell. These politicians, who have built a wide public following by posturing as opponents of authoritarianism, are sponsoring one of the most oppressive and authoritarian bills that has pended before Congress in quite some time.

LAST NIGHT, THE ACLU posted a letter it sent to all members of the Senate urging them to oppose this bill. Warning that “proponents of the bill are seeking additional co-sponsors,” the civil liberties group explained that “it would punish individuals for no reason other than their political beliefs.” The letter detailed what makes this bill so particularly threatening to basic civic freedoms:

It is no small thing for the ACLU to insert itself into this controversy. One of the most traumatic events in the organization’s history was when it lost large numbers of donors and supporters in the late 1970s after it defended the free speech rights of neo-Nazis to march through Skokie, Illinois, a town with a large community of Holocaust survivors.

Even the bravest of organizations often steadfastly avoid any controversies relating to Israel. Yet here, while appropriately pointing out that the ACLU “takes no position for or against the effort to boycott Israel or any foreign country,” the group categorically denounces this AIPAC-sponsored proposal for what it is: a bill that “seeks only to punish the exercise of constitutional rights.”

The ACLU has similarly opposed bipartisan efforts at the state level to punish businesses that participate in the boycott, pointing out that “boycotts to achieve political goals are a form of expression that the Supreme Court has ruled are protected by the First Amendment’s protections of freedom of speech, assembly, and petition,” and that such bills “place unconstitutional conditions on the exercise of constitutional rights.” The bill now co-sponsored in Congress by more than half of the House and close to half of the Senate is far more extreme than those.

THUS FAR, NOT a single member of Congress has joined the ACLU in denouncing this bill. The Intercept this morning sent inquiries to numerous non-committed members of the Senate and House who have yet to speak on this bill. We also sent inquiries to several co-sponsors of the bill — such as Rep. Lieu — who have positioned themselves as civil liberties champions and opponents of authoritarianism, asking:

Congressman Lieu: Last night, the ACLU vehemently denounced a bill that you are co-sponsoring — to criminalize support for a boycott of Israel — as a grave attack on free speech. Do you have any comment on the ACLU’s denunciation? You’ve been an outspoken champion for civil liberties; how can you reconcile that record with an effort to make it a felony for Americans to engage in activism that protests a foreign government’s actions? We’re writing about this today; any statement would be appreciated.

This morning, Lieu responded: “Thank you for sharing the letter. The bill has been around since March and this is the first time I have seen this issue raised. We will look into it.” (The Intercept will post any response from Rep. Lieu, or any late responses from others, as soon as they are received.)

Sen. Cantwell told The Intercept she is “a strong supporter of free speech rights” and will be reviewing the bill for First Amendment concerns in light of the ACLU statement.

Democratic Sen. Chris Coons of Delaware, when asked by The Intercept about the ACLU’s warning that the bill he is co-sponsoring criminalizes free speech, affirmed his support for the bill by responding: “I continue to support a strong U.S./Israel relationship.”

Meanwhile, some co-sponsors seemed not to have any idea what they co-sponsored — almost as though they reflexively sign whatever comes from AIPAC without having any idea what’s in it. Democratic Sen. Gary Peters of Michigan, for instance, seemed genuinely bewildered when told of the ACLU’s letter, saying, “What’s the Act? You’ll have to get back to me on that.”

A similar exchange took place with another co-sponsor, one of AIPAC’s most reliable allies, Democratic Sen. Bob Menendez of New Jersey, who said: “I’d want to read it. … I’d really have to look at it.”

Sen. Claire McCaskill, D-Mo., a co-sponsor, said she hadn’t seen the ACLU letter but would give it a look. “I certainly will take their position into consideration, just like I take everybody’s position into consideration,” she said.

Gillibrand, the only senator in the 2020 presidential mix to co-sponsor the bill, told The Intercept she would have a statement to provide, which we’ll add as soon as it’s provided.

Perhaps most stunning is our interview with the primary sponsor of the bill, Democratic Sen. Benjamin Cardin, who seemed to have no idea what was in his bill, particularly insisting that it contains no criminal penalties.

But as the ACLU put it, “Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.”

That’s because, as Josh Ruebner expertly detailed when the bill was first unveiled, “the bill seeks to amend two laws — the Export Administration Act of 1979 and the Export-Import Bank Act of 1945,” and “the potential penalties for violating this bill are steep: a minimum $250,000 civil penalty and a maximum criminal penalty of $1 million and 20 years imprisonment, as stipulated in the International Emergency Economic Powers Act.”

Indeed, to see how serious the penalties are, and how clear it is that those penalties are imposed by this bill, one can just compare the bill’s text in Section 8(a), which provides that violators will be “fined in accordance with Section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705),” to the penalty provisions of that law, which state:

That the bill refers to the fine, but not the prison sentence, is not enough to prevent a judge from applying the statute’s prison term, because the bill brings the statute into play, said Faiz Shakir, the ACLU’s political director, who authored the letter to the Senate. “The referral to the statute keeps criminal penalties in play, regardless of what their preference for punishment might be,” said Shakir.

The bill also extends the current prohibition on participating in boycotts sponsored by foreign governments to cover boycotts from international organizations such as the U.N. and the European Union. It also explicitly extends the boycott ban from Israel generally to any parts of Israel, including the settlements. For that reason, Ruebner explains, the bill — by design — would outlaw “campaigns by the Palestine solidarity movement to pressure corporations to cut ties to Israel or even with Israeli settlements.”

THIS PERNICIOUS BILL highlights many vital yet typically ignored dynamics in Washington. First, journalists love to lament the lack of bipartisanship in Washington, yet the very mention of the word “Israel” causes most members of both parties to quickly snap into line in a show of unanimity that would make the regime of North Korea blush with envy. Even when virtually the entire world condemns Israeli aggression, or declares settlements illegal, the U.S. Congress — across party and ideological lines — finds virtually complete harmony in uniting against the world consensus and in defense of the Israeli government.

Sen. Ben Cardin, D-Md., speaks to reporters following a briefing on Syria on Capitol Hill in Washington, Friday, April 7, 2017. Amid measured support for the U.S. cruise missile attack on a Syrian air base, some vocal Republicans and Democrats are reprimanding the White House for launching the strike without first getting congressional approval.(AP Photo/Susan Walsh) Sen. Ben Cardin, D-Md. Photo: Susan Walsh/APSecond, the free speech debate in the U.S. is incredibly selective and warped. Pundits and political officials love to crusade as free speech champions — when doing so involves defending mainstream ideas or attacking marginalized, powerless groups such as minority college students. But when it comes to one of the most systemic, powerful, and dangerous assaults on free speech in the U.S. and the West generally — the growing attempt to literally criminalize speech and activism aimed at the Israeli government’s occupation — these free speech warriors typically fall silent.

Third, AIPAC continues to be one of the most powerful, and pernicious, lobbying forces in the country. In what conceivable sense is it of benefit to Americans to turn them into felons for the crime of engaging in political activism in protest of a foreign nation’s government? And this is hardly the first time they have attempted to do this through their most devoted congressional loyalists; Cardin, for instance, had previously succeeded in inserting into trade bills provisions that would disfavor anyone who supports a boycott of Israel.

Finally, it is hard to put into words the irony of watching many of the most celebrated and beloved congressional leaders of the anti-authoritarian Resistance — Gillibrand, Schiff, Swalwell, and Lieu — sponsor one of the most oppressive and authoritarian bills to appear in Congress in many years. How can one credibly inveigh against “authoritarianism” while sponsoring a bill that dictates to American citizens what political views they are and are not allowed to espouse under threat of criminal prosecution?

Whatever labels one might want to apply to the sponsors of this bill, “anti-authoritarianism” should not be among them.

How the Israel Anti-Boycott Act Threatens First Amendment Rights

By ACLU [American Civil Liberties Union]
Published July 26, 2017

Last week, the ACLU [American Civil Liberties Union] came out against a bill that would criminalize constitutionally protected boycotts and certain speech targeting Israel. The Israel Anti-Boycott Act, which was introduced in both the House and Senate earlier this year, would expand a 1970s-era export law and expose a range of activity to sweeping penalties, including criminal prosecution.

1. What law does the proposed Israel Anti-Boycott Act seek to amend?

The Israel Anti-Boycott Act principally seeks to amend the Export Administration Act of 1979. That law prohibits “U.S. persons” — a term that refers to both individuals and companies — from taking certain actions to comply with or support a boycott imposed by a foreign country against another country that is friendly to the United States.

The 1979 law responded to the Arab League’s boycott of Israel. At the time, countries in the Arab League would require U.S. businesses to boycott Israel and Israeli companies, and furnish information to verify the boycott, as a condition of doing business. To prevent foreign countries from dragooning U.S. businesses into these compulsory boycotts, the 1979 law prohibited U.S. companies from complying with foreign boycott requirements.

Specifically, the 1979 law prohibits U.S. persons from boycotting a friendly country — i.e., by refusing to do business with the boycotted country or with a company operating in that country — pursuant to an agreement with, requirement of, or request from another country. It also prohibits the “furnishing of information” about U.S. persons’ business relationships in the boycotted country.

For example, suppose a U.S. company had wanted to do business in Saudi Arabia, but Saudi Arabia would allow it to operate in its territory only if the company suspended business ties with Israel and reported its dealings to prove its compliance. The 1979 law would prohibit the U.S. company from complying with the Saudi government’s boycott demand and from furnishing information about its business dealings with Israel.

2. How does the proposed Israel Anti-Boycott Act change the 1979 law?

The Israel Anti-Boycott Act was drafted in response to the U.N. Human Rights Council’s (UNHRC) March 2016 resolution calling for the creation of a database of companies operating in the occupied Palestinian territories. The bill’s statement of policy declares that Congress opposes the UNHRC resolution and “views such policies as actions to boycott, divest from, or sanction Israel.”

The bill’s operative provisions expand the 1979 law by prohibiting U.S. persons from boycotting Israel and Israeli businesses — including businesses operating in the occupied Palestinian territories — in adherence to boycotts called for by international governmental organizations, such as the United Nations and the European Union. The bill would also prohibit U.S. persons from not only furnishing, but even requesting information about any person’s business relations with Israel, if done to support a foreign country’s or international governmental organization’s call for boycott.

The bill states that violators shall be fined in accordance with the penalties laid out in Section 206 of the International Emergency Economic Powers Act. That section provides that violations are punishable by a civil penalty that could reach $250,000 and that willful violations are subject to criminal prosecution, which could result in a fine of up to $1 million and 20 years in prison.

The existing law would be amended as follows (with amendments in bold):

“For the purpose of implementing the policies set forth in subparagraph (A) or (B) of paragraph (5) of section 4602 of this title, the President shall issue regulations prohibiting any United States person, with respect to his activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to take any of the following actions with intent to comply with, further, or support any boycott fostered or imposed by a foreign country, or request to impose any boycott by a foreign country, against a country which is friendly to the United States and which is not itself the object of any form of boycott pursuant to United States law or regulation, or support any boycott fostered or imposed by any international governmental organization against Israel or request to impose any boycott by any international governmental organization against Israel.”​​​​​​​

As written, the bill would prohibit a U.S. person from:

• Adhering to the U.N.’s request to cease business relationships with a company operating in Israel

• Providing information to the U.N. about whether it does business with Israel to support any U.N.-fostered boycott of Israel

• Requesting information about whether any person is doing business in Israel if doing so is intended to help a U.N.-fostered boycott of Israel.

3. If all this bill does is add “international governmental organizations” to an existing law, why is that so problematic?

The bill’s amendments would significantly expand the 1979 law’s prohibitions, untethering them from Congress’ original concern about foreign governments coercing U.S businesses into boycotting friendly countries in exchange for commercial relations.

Instead, the bill risks penalizing U.S. individuals and companies that support a U.N.-led boycott movement by refusing to purchase goods made by certain companies.

In other words, the original intent of the law was to protect U.S. companies from the coercion of foreign governments. While the law may have been over-broad, Congress’ new amendments make the problem worse. Now, it is the U.S. government prohibiting people from participating in certain boycotts that they wish to join.

On its face, the bill appears to directly prohibit boycott activity that is protected under the First Amendment. Even if the bill could be interpreted more narrowly, as some of its supporters claim, its broad language could still chill protected expression by scaring people into self-censorship. Either way, the bill would impose serious First Amendment harms.

Some people have argued that the bill effectively accomplishes nothing, because no international governmental organization is currently engaged in a boycott against Israel. But, as noted above, the bill’s statement of policy expressly opposes the UNHRC’s March 2016 resolution calling for a database of companies operating in the occupied Palestinian territories, and it declares that Congress views “such policies as actions to boycott, divest from, or sanction Israel.”

Reading the bill in light of its own statement of policy, a reasonable person could plausibly infer that the UNHRC’s March 2016 resolution amounts to a “request” for a boycott within the meaning of the bill. That would mean that anyone who attempts to support the resolution, as Congress has described it, by refusing to purchase goods made in Israel or the occupied Palestinian territories would be violating the law. Given the severe penalties at stake, many people would undoubtedly choose to refrain rather than risk prosecution.

But even apart from limiting the right to boycott by refusing to purchase goods for political reasons, the bill infringes on pure speech. It prohibits even requests for information about whether a person is doing business in Israel in order to support a boycott of Israel, regardless of whether the requester is actually engaged in a boycott. This additional prohibition will chill people from seeking information about companies boycotting Israel or engaged in business dealings in Israel.

For example, suppose a consumer wishes to make a decision about whether to purchase a product made by a certain company. She posts a request on Facebook seeking information about that company’s environmental, labor rights, or human rights record. Her request is protected speech. But if the company she is asking about operates in the occupied Palestinian territories, and she is asking about that activity in order to support the U.N.’s resolution and then publicly shares any information she receives, she would have reason to fear prosecution under the law.

4. If the law specifically refers to boycotts initiated by international governmental organizations, would it affect BDS activists?

The Boycott, Divestment, Sanctions (BDS) movement is a global campaign that seeks to apply economic and political pressure on Israel to comply with international law. Because the BDS movement is not itself an international governmental organization, support for BDS and its activities should not violate the bill’s provisions. However, BDS’s members and supporters may refer to international governmental organizations’ boycott requests or policies to support their own advocacy. Thus, the bill threatens to sanction a BDS-supporting individual or company that declares an intention to boycott every business listed in the UNHRC database. The bill also threatens to sanction BDS supporters who identify companies dealing with businesses listed in the UNHRC database.

Additionally, even though BDS participation does not by itself violate the bill’s provisions, BDS members and supporters may fear that they will be targeted for investigation based on their affiliation and expressive activities, and self-censor accordingly.

5. Some people have claimed that the Export Administration Act is about corporations, not individuals, so why do you think individuals could be affected under this bill?

The Office of Antiboycott Compliance’s website explicitly states:

The term “U.S. person” includes all individuals, corporations and unincorporated associations resident in the United States, including the permanent domestic affiliates of foreign concerns. U.S. persons also include U.S. citizens abroad (except when they reside abroad and are employed by non-U.S. persons) and the controlled in fact affiliates of domestic concerns.

Even if the government has in the past chosen to pursue penalties against corporations, not individuals, the bill’s language plainly applies to individuals. And even if the government promises not to prosecute individual consumers under the bill, such a promise can be changed at any time, at the whim of any presidential administration. Because the bill applies to individuals, flesh and blood people have reason to be concerned that their own protected boycott activity and speech could violate the law.

6. Why doesn’t the ACLU challenge the original law?

The ACLU believes that the 1979 law is over-broad. However, courts upheld the law against First Amendment challenge, concluding that it was a sufficiently narrow attempt to prevent foreign countries from dragooning American businesses into boycotts against Israel, thereby raising “delicate foreign policy questions.” Whatever their merits, these rulings envisioned a narrow scope for the law and did not involve challenges by individuals engaged in political speech and advocacy.

The bill goes beyond any such narrow scope. The UNHRC does not engage in trade with U.S. companies, and the law is not narrowly tailored to situations involving export relationships that trigger foreign policy concerns. The bill threatens to sanction businesses and individuals who seek to demonstrate their support for the UNHRC’s March 2016 resolution — and similar future policies by the EU or international governmental organizations — through protected speech and boycott activity.

NOTES and LINKS

Israel Anti-Boycott Act

This bill declares that Congress: (1) opposes the United Nations Human Rights Council resolution of March 24, 2016, which urges countries to pressure companies to divest from, or break contracts with, Israel; and (2) encourages full implementation of the United States-Israel Strategic Partnership Act of 2014 through enhanced, governmentwide, coordinated U.S.-Israel scientific and technological cooperation in civilian areas.

The bill amends the Export Administration Act of 1979 to declare that it shall be U.S. policy to oppose:

• requests by foreign countries to impose restrictive practices or boycotts against other countries friendly to the United States or against U.S. persons; and
• restrictive trade practices or boycotts fostered or imposed by an international governmental organization, or requests to impose such practices or boycotts, against Israel.

The bill prohibits U.S. persons engaged in interstate or foreign commerce from:

• requesting the imposition of any boycott by a foreign country against a country which is friendly to the United States; or
• supporting any boycott fostered or imposed by an international organization, or requesting imposition of any such boycott, against Israel.

The bill amends the Export-Import Bank Act of 1945 to include as a reason for the Export-Import Bank to deny credit applications for the export of goods and services between the United States and foreign countries, opposition to policies and actions that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with citizens or residents of Israel, entities organized under the laws of Israel, or the Government of Israel.