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.
Second, 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.