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Criminalizing Criticism of Israel: An assault on the First Amendment

Written By | Jan 22, 2019

WASHINGTON:  The last Congress, an introduction of legislation that would, in effect, criminalize criticism of Israel was brought to the floor. The New York Times characterized the legislation, known as the Israel Anti-Boycott Act as

“Clearly part of a widening effort to silence one side of the debate. That is not in the interests of Israel, the United States or their shared democratic values.”

The proposal’s chief sponsors were Sens. Ben Cardin (D-MD) and Rob Portman (R-OH). Republican Party’s chief financial supporter, casino mogul Sheldon Adelson, AIPAC, and some Evangelical groups also support the legislation.

Nonetheless, they did fail to win passage in the last Congress.  It is being re-introduced again in the current Congress.

The opposition to the Israel Anti-Boycott act has been bipartisan.

Sens. Diane Feinstein (D-CA) and Bernie Sanders (I-VT) issued a statement declaring that,

“While we do not support the BDS (boycott, disinvestment, sanctions) movement, we remain resolved to our constitutional oath to defend the right of every American to express their views peacefully without penalty or actual punishment by the government.”

Sen. Rand Paul (R-KY) stating that:

“I am not in favor of boycotting Israel…At the same time, I am concerned about what the role of Congress can and should be in this situation. I strongly oppose any legislation that attempts to ban boycotts or ban people who support boycotts from participating in our government. America is the land of freedom of expression and a hallmark of a truly free country is that it allows expressions, and actions that we don’t agree with,”

Peaceful boycotts are, Sen. Paul points out, an intrinsic part of our history:

“It was founded amidst a boycott of English tea. Abolitionists boycotted slave goods. Rosa Parks led the boycott against segregated busing. The bus boycott lasted for 382 days in 1955 and 1956. Thousands of black men and women boycotted the Montgomery, Alabama bus system to end segregation. The law shouldn’t be used to shut down protests or boycotts no matter what the dispute involved. The First Amendment is not about speech you like and speech you don’t like.”

In the 1982 case of NAACP v. Claiborne Hardware Co., the Supreme Court held that blacks economic boycott of white-businesses has First Amendment protection. It argued that “a non-violent, politically motivated boycott” was political speech and protected.

Twenty-six states have passed laws which penalize those who support a voluntary, peaceful boycott of Israel

Because of its 51-year occupation of the West Bank and East Jerusalem, states are denying Israel boycotters public contracts or public employment. Consider the Texas law and its impact upon Bauia Amawi, a children’s speech pathologist in the Austin public schools.  For the past nine years, Amawi’s work has been with developmentally disabled, autistic, and speech-impaired elementary school children. Until the pathologist was told that she could no longer work with the public school system.  Due to her refusal to sign an oath vowing:

She “does not” and “will not” engage in a boycott of Israel “or otherwise take any action that is intended to inflict economic harm” on that foreign country.

A lawsuit has been filed on her behalf in December in a federal district court in Texas alleging a violation of her First Amendment right of free speech.


Writing in The Intercept, Glenn Greenwald notes that the oath:

“Reads like [an] Orwellian or McCarthyite self-parody, the classic political loyalty oath that every American should instinctively shudder upon reading. Whatever one’s views are, boycotting Israel to stop its occupation is a global political movement modeled on the 1980s boycott aimed at South Africa that helped end that country’s system of apartheid.” – A Texas Elementary School Speech Pathologist Refused to Sign a Pro-Israel Oath, Now Mandatory in Many States — so She Lost Her Job

The certification, Greenwald points out,

“Was the only one in the contract that pertained to political opinions or activism. In order to obtain a contract in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children and even to, support a boycott of particular U.S. states. Such as was done in 2017 to North Carolina in, protest of its anti-LGBT law-to continue to work.

The sole political affirmation Texans are required to sign to work with the school system’s children is to protect the economic interests not of the U.S. or Texas, but of Israel.”

Texas laws that have already been successfully challenged by the American Civil Liberties Union (ACLU) in Arizona and Kansas. In 2018 and Arizona federal district court blocked the state from requiring contractors to certify that they have not participated in any boycotts of Israel.

The Violation of Free Speech rights

The court agreed with the ACLU that the law violated the contractor’s free speech rights under the First Amendment. Federal District Judge Diane Humetawa declaring:

“A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott.”

In the Kansas case, the court held that the First Amendment protected the right of citizens to “band together and express collectively their dissent…with the injustice and violence they perceive, as experienced both by Palestinians and Israelis.”

According to the ACLU:

“The Kansas and Arizona decisions send a clear message: the First Amendment right to boycott is alive and well. But our work is far from over. Similar contract requirements are on the books in 24 other states.”

Walter Olson, a senior fellow at the Cato Institute Center for Constitutional Studies, says:

“It is not a proper function of law to force Americans into, court on foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad or arbitrary.”

If the supporters of laws limiting free speech think that by doing so they will find support in the Jewish community, they may have seriously mis-assessed public opinion. AIPAC and Sheldon Adelson may embrace such laws, but the vast majority of American Jews not only believe in free speech but also oppose Israel’s occupation and support the creation of a Palestinian state.

The Jewish News of Northern California characterized the Texas law this way:

“It has all the appearances of an overbearing government thought-police pressing down on the little guy, holding paychecks hostage to demand ideological conformity on the merits of a country two continents away. What possible business is it of Texas what a random speech pathologist does or doesn’t think about Israel? Condemnation has been swift and brutal and in many cases crossed partisan boundaries.”

If Israel and those who support its government have good arguments to make against the BDS movement, they should make them in the court of public opinion, not use courts of law to silence their critics. That, after all, is how a free and democratic society works.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.