Politicians around the country are seizing upon highly publicized episodes of conservatives faced with harassment and heckling on college campuses by responding with a wave of legislation supposedly aimed at preserving free speech rights for campus speakers. But that commitment, while draped in the mantle of a principled defense of the First Amendment, does not always extend to speakers who criticize Israel and its policies.
This renewed concern about free speech comes after a number of high-profile incidents in which students interrupted conservative speakers, and in a few cases, even used violence at protests. At a hearing on campus free speech in October, U.S. senators expressed bipartisan support for the First Amendment on college campuses, but lawmakers around the country are demanding free speech with one hand, and passing laws that punish boycotts of Israel with the other.
One of the most prominent examples comes from Wisconsin, where Republican state Sen. Leah Vukmir has used the issue of campus free speech to launch a campaign for U.S. Senate this year, challenging the incumbent, Democratic Sen. Tammy Baldwin.
Vukmir is the original sponsor of “free speech” legislation that calls for a strict disciplinary system for those who infringe on others’ free speech rights on college campuses in her state. “Students, professors, and administrators are using intimidation tactics to silence those they disagree with,” Vukmir said, after unveiling her legislation last May.
She went on to launch a campaign with the help of the American Legislative Exchange Council, or ALEC, for lawmakers in other states to duplicate her campus free speech efforts. “Senator Vukmir is a champion of free speech issues,” reads a press release from ALEC, which awarded Vukmir its “Iron Lady Award” for taking tough stands as a legislator.
But Vukmir, a strong supporter of Israel, is apparently selective in her championing of free speech.
Just months after sponsoring the free speech legislation last year, Vukmir sponsored a so-called anti-BDS law in Wisconsin, prohibiting the state from entering into contracts with businesses that choose to express themselves by engaging in a boycott to protest Israeli occupation of the West Bank. Gov. Scott Walker signed an executive order establishing the anti-BDS policy in October.
BDS refers to the Palestinian-led boycott, divestment, and sanctions movement that advocates for economic pressure to force Israel to end its occupation of the Palestinian territories. BDS campaigns have gained traction across the United States in recent years, particularly on college campuses. Palestine Legal, a nonprofit advocacy group, notes that boycotts have long played a significant role in U.S. history, and that the “Supreme Court has held that boycotts to effect political, social, and economic change are protected by the First Amendment of the Constitution.”
But pro-Israel advocacy organizations, including the America Israel Public Affairs Committee, known by its acronym AIPAC, have spearheaded an aggressive campaign to encourage lawmakers to stifle BDS activism. Twenty-four states have now passed legislation designed to penalize or prohibit BDS activity.
AIPAC spearheaded an aggressive campaign to encourage lawmakers to stifle BDS activism.
These laws have been used to suppress the speech of a wide range of people and businesses. In Kansas, a star teacher was denied payment to train other teachers because she was following her church’s guidance and boycotting Israel. (A federal court struck down the Kansas law following that controversy.) In Texas, a town seeking contractors to rebuild after a devastating hurricane mistakenly used an anti-BDS clause to prevent the hiring of anyone who also boycotted Israel.
Rather than focus on the suppression of pro-Palestinian activism, legislators have almost singularly focused on a string of high-profile attacks on right-wing speakers on college campuses. One example is Milo Yiannopoulos, an “alt-right” provocateur who has collaborated with white supremacist figures. He was a relatively obscure figure until left-wing activists protested violently when he came to the University of California, Berkeley campus, elevating him as a national figure. At the October Senate hearing, Allison Stanger, a Middlebury College professor, testified about her experience moderating a talk with American Enterprise Institute scholar Charles Murray, whose book, “The Bell Curve,” on IQ as a determinant of socioeconomic status has been criticized as being racist. The protesters disrupted the speaking engagement, assaulting Stanger and leaving her hospitalized.
Across the country, politicians are hoping to harness the outrage over such incidents into political benefit, supposedly in the name of securing free speech.
Texas Republican state Sen. Van Taylor last week won the GOP nomination to run for Texas’s 3rd Congressional District, which encompasses parts of Dallas. Last year, Taylor voted in favor of SB1151, a bill designed to discourage campus censorship. The vote occurred within weeks of another Taylor-supported bill, HB89, which prevents the state of Texas from entering into contracts with businesses engaged in BDS activism.
In Georgia, Republican state senator Josh McKoon is one of a number of Republicans vying for the office of secretary of state. He was one of the co-sponsors of Senate Bill 339, which, like the Wisconsin bill, takes aim at students who interrupt university speakers. McKoon is also the man behind the failed perennial push for a religious freedom bill, known as RFRA, that critics fear would essentially license businesses to discriminate.
In a 2016 interview, McKoon justified the religious freedom bill by citing the example of a wedding singer who would be asked by a same-sex couple to perform at their ceremony. “If that person is approached by a same-sex couple that says, ‘We want to hire you to do this,’”and [the singer] says, ‘No, I believe that wedding is a sacramental union that involves God, one man, and one woman, and this is contrary to my belief,’ are we going to say, as a matter of policy, the government is going to compel that person to participate in the order of service against their sincerely held religious beliefs? I don’t think that anybody would suggest that we shouldn’t make room for people who have different beliefs or different ideas,” he said.
But McKoon also was a sponsor of SB 327, which, when it passed in 2016, outlawed state contracts with any individual or business who boycotts businesses based in Israel or even in the illegal settlements Israel operates in Palestinian territory. The bill does exactly what McKoon claims to be against: It tries to compel people to take actions against their own beliefs.
The bill does exactly what McKoon claims to be against: It tries to compel people to take actions against their own beliefs.
For example, the Kansas teacher who was barred from a state contract because of her support for BDS was inspired to engage in boycotts because of her membership in the Mennonite Church USA. Last year, the church voted to divest from some U.S. companies that do business in Israel’s occupied territories.
In an email to The Intercept, McKoon said he saw no contradiction between supporting RFRA and potentially punishing individuals who would boycott Israel under a religion obligation.
“With respect to your question, if RFRA were to pass, the state law regarding contracts with Israel and a business which does business with Georgia claimed their boycott of Israel had a religious basis, then the balancing test would be applied,” he wrote, going on to explain the legal balancing test a court would have to do if the law were to be challenged. “First the Court would have to determine if the interest in preserving our relationship with Israel was a compelling state interest. Then if the Court was satisfied that it was a compelling state interest they would have to determine if some sort of religious accommodation would be warranted to make the policy the least restrictive policy. I don’t pretend to know how the Court would resolve a hypothetical lawsuit after RFRA passed, which is the point of the whole RFRA debate. It isn’t a religious exemption bill as some have tried to claim, but rather a balancing test under which sometimes the government prevails and sometimes the individual prevails.”
He added: “I don’t see a conflict between desiring a strict scrutiny standard for free exercise claims against state and local government and public policy to preserve our historic relationship with the State of Israel.”
In other words, McKoon argued that the state may have an interest in maintaining a relationship with Israel that supersedes an individual’s religious freedom and free speech rights, or it may not, but he wants the courts to settle the debate.
In Iowa, the state legislature in 2016 voted to bar state funds from being invested in companies boycotting Israel. On February 28 of this year, the state Senate passed its own campus free speech bill, with all Republicans in favor, and all Democrats plus the chamber’s one independent opposed. All of the Republicans who were serving in 2016 and are still serving backed both the anti-BDS and campus free speech bill.
The hypocrisy, while more pronounced by Republicans on the state level, is shared by both parties.
In Congress, a bipartisan group of lawmakers have sponsored a series of resolutions and hearings to highlight the threat to free speech on college campuses, while many of the same members have sponsored efforts go even further than state-level anti-BDS laws, pushing to impose criminal and civil penalties on organizations that engage in BDS activism.
The Senate legislation criminalizing boycott speech against Israel is championed by Sen. Ben Cardin, D-Md. In the House, the lead co-sponsor is Rep. Todd Rokita, R-Ind., who simultaneously sponsors the bill championing free expression on college campuses.
The anti-BDS laws have the potential to result in censorship of student speakers, the very issue that has supposedly inspired the wave of campus free speech laws.
As a result of Arizona’s HB2617, an anti-BDS state law passed in 2016, students at Arizona State University had to change their plans for an upcoming event on Palestine. They invited Hatem Bazian, chair of American Muslims for Palestine, to speak about BDS at the April 3 event, but the university’s speaker agreement included a “No Boycott of Israel” clause, based on the state’s anti-BDS law. Bazian could not comply with that provision and thus, was effectively barred from speaking at the university, according to a lawsuit filed on March 1 by the CAIR Legal Defense Fund.
Bret Hovell, a spokesperson for the university, told The Intercept that the school does not believe the anti-BDS law should apply in this case, and that student groups are free to use a contract that does not include the clause. “It was a simple mistake that the ASU form containing the certification [of not boycotting Israel] was used,” he said. The Arizona Attorney General’s Office did not respond to a request for comment on its view of whether the law applies.
Not every politician who champions free speech is a hypocrite. Massachusetts Democratic Sen. Elizabeth Warren attended the October Senate hearing on campus free speech and condemned both censorship and violence as a response to controversial speakers. But she also told a town hall last year that she opposes anti-BDS legislation, arguing that it infringes on free speech.