WARN­ING: Is­rael Is Killing Amer­i­cans’ Right to Free Speech

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A new pro­posed U.S. fed­eral law and mul­ti­ple state laws will make it a felony for Amer­i­can in­di­vid­u­als or or­ga­ni­za­tions to ex­er­cise their con­sti­tu­tional right to free speech by boy­cotting Is­rael or di­vest­ing them­selves from in­vest­ments in Is­raeli com­pa­nies or or­ga­ni­za­tions who do busi­ness with Is­rael or to en­cour­age oth­ers to do the same. Th­ese laws are be­ing pushed into ex­is­tence by Is­rael and its lobby, The Amer­i­can Is­rael Pub­lic Af­fairs Com­mit­tee (AIPAC).

Other laws have already been passed in some states ban­ning com­pa­nies who sup­port boy­cotts of Is­rael from do­ing busi­ness with state agen­cies.

While th­ese laws are bad enough in them­selves, they set an ex­tremely dan­ger­ous prece­dent. Not only are our state and fed­eral gov­ern­ments be­ing con­trolled by a for­eign power who is writ­ing leg­is­la­tion and cor­rupt­ing our rep­re­sen­ta­tives to en­sure the pas­sage of such leg­is­la­tion but the prece­dent makes it eas­ier for oth­ers to make even more heinous laws and turn our gov­ern­ment against us.

Be­fore go­ing into the threat­en­ing leg­is­la­tion, con­sider the fol­low­ing sit­u­a­tion. Imag­ine you or a com­pany you have a ma­jor say in man­ag­ing wants to do some­thing to keep some­thing you feel is bad from hap­pen­ing ei­ther lo­cally or glob­ally. That some­thing may be per­fectly le­gal wher­ever it is go­ing on, but you have de­cided you dis­agree with it and want to do some­thing about it.

As ac­tions, you could de­cide to write let­ters to your lo­cal and/or fed­eral gov­ern­ment rep­re­sen­ta­tives or even en­gage in a pub­lic protest. Imag­ine, though, that this is not enough for you. You in­stead de­cide to act in an eco­nomic man­ner – by choos­ing to block any pur­chases, in­vest­ments or trade con­nected with what­ever you dis­agree with and who­ever is re­spon­si­ble for it. You can also pub­licly com­mu­ni­cate this as you or your com­pany’s po­si­tion on the mat­ter, which you may even urge oth­ers to fol­low. It may ini­tially just in­volve you or your com­pany but gain mo­men­tum as oth­ers learn of what you have done.

Even­tu­ally, if enough oth­ers start do­ing the same things you have de­cided to do, those do­ing that thing you have iden­ti­fied as “bad” may start feel­ing the pres­sure fi­nan­cially. It may be­come big enough that en­tire com­pa­nies or gov­ern­ments in­volved in the bad thing be­gin to get the mes­sage straight in their bank

ac­counts. If all goes well, they may even make the de­ci­sion to stop do­ing that thing you la­beled as bad.

This is a boy­cott. The same kind of logic is be­hind lev­el­ing sanc­tions against coun­tries such as North Korea and Iran when they do things other gov­ern­ments do not want them to do (with­out hav­ing to re­sort to covert ac­tions or out­right war to per­suade a coun­try to change its ways).

It is also im­por­tant that both na­tions and in­di­vid­u­als have the right to de­cide what to spend money on and what not to un­less, of course, already pro­scribed by law. It is not okay, for ex­am­ple, to de­cide you will not pay taxes to your gov­ern­ment be­cause you dis­agree with its poli­cies, even though some have tried to do so. Oth­er­wise it would seem fully within one’s rights to make one’s own spend­ing de­ci­sions, es­pe­cially within a place where the coun­try’s con­sti­tu­tion al­lows for free­dom of speech. Mul­ti­ple court de­ci­sions have even sup­ported the idea of choos­ing what to spend money on as an act of free speech that is in fact pro­tected by the U.S. con­sti­tu­tion.

To take just one be­nign ex­am­ple to demon­strate the point, imag­ine that both of your par­ents died of lung cancer and had smoked heav­ily much of their lives. With cig­a­rette smok­ing con­sid­ered such an im­por­tant con­tribut­ing cause of cancer, your par­ents, their en­tire med­i­cal teams and you have all de­cided that smok­ing was likely a key rea­son why they died such hor­ri­ble deaths. You de­cide you want to take some ac­tion short of a law­suit against the to­bacco com­pa­nies, un­der­stand­ing full well that those com­pa­nies are op­er­at­ing per­fectly legally. You de­cide that you per­son­ally will not buy any stocks in any com­pa­nies with busi­ness in the to­bacco in­dus­try or mu­tual funds with any hold­ings in such stocks. You, as owner of a com­pany you man­age, may de­cide not to al­low any pension funds your or­ga­ni­za­tion pro­vides to have any to­bacco in­vest­ments ei­ther. This is all le­gal, right?

For now, it is. But the bill that is go­ing through the U.S. Con­gress rep­re­sents a chill­ing ex­am­ple of how what seems so log­i­cal, sim­ple and law­ful could sud­denly be­come a fed­eral crime in the 21st cen­tury United States.

The Pro­posed Fed­eral Is­rael Anti-boy­cott Act

The leg­is­la­tion that is cur­rently mak­ing its way very qui­etly through the U.S. Con­gress would make it a felony to sup­port boy­cotts of the gov­ern­ment of Is­rael and its Is­raeli set­tle­ment pro­gram. It is a strange law on mul­ti­ple lev­els, ef­fec­tively en­forc­ing a po­lit­i­cal pol­icy – not even a law – on cor­po­ra­tions within the United States. It would also make it il­le­gal to boy­cott a spe­cific for­eign gov­ern­ment, Is­rael or com­pa­nies in sup­port of that gov­ern­ment, specif­i­cally re­lated to that pol­icy po­si­tion.

To un­der­stand some of why this is hap­pen­ing, the Boy­cott, Divest­ment and Sanc­tions move­ment tar­geted by the new act was launched in 2005 by a col­lec­tive of ap­prox­i­mately 170 Pales­tinian non­govern­men­tal or­ga­ni­za­tions. The BDS move­ment, as it came to be known, is a ma­jor call to ac­tion to peo­ple around the world to force Is­rael to com­ply with in­ter­na­tional law re­gard­ing what have been la­beled as il­le­gal set­tle­ments and re­lated hu­man­i­tar­ian vi­o­la­tions of fun­da­men­tal Pales­tinian civil rights in the re­gion. Based on a pre­vi­ous ac­tivist move­ment in South Africa to abol­ish apartheid, the BDS move­ment calls for in­di­vid­u­als, com­pa­nies, pension plans, mu­tual funds and gov­ern­ments at all lev­els to take a stand against the set­tle­ments by boy­cotting those who sup­port them, di­vest­ing in­vest­ments tied to those sup­port­ing the set­tle­ments and help­ing to en­cour­age an end to the set­tle­ments through sanc­tions.

The goal of the BDS move­ment is quite spe­cific, just as the South African ac­tivist move­ment was. It calls for the fol­low­ing three things:

• End­ing the oc­cu­pa­tion and col­o­niza­tion of all Arab lands and dis­man­tling the wall

• Pro­vid­ing Arab-pales­tinian cit­i­zens of Is­rael with full equal­ity

• Re­spect­ing, pro­tect­ing and pro­mot­ing the rights of Pales­tinian refugees to re­turn to their homes and prop­er­ties as stip­u­lated in the UN Res­o­lu­tion 194 (the orig­i­nal res­o­lu­tion adopted by the UN in De­cem­ber 1948 to gov­ern how Pales­tinian refugees might re­turn to their homes in the re­gion) The in­ter­na­tional boy­cott of South Africa did even­tu­ally make such a large im­pact that it may have been the fi­nal push that caused the coun­try to abol­ish apartheid. The re­sult was painful for the coun­try, but most in­volved be­lieve the coun­try is far bet­ter be­cause of the change.

The global BDS move­ment against Is­rael’s an­tiPales­tinian ac­tions within its bor­ders is also gain­ing some trac­tion.

The dif­fer­ence in the present case is sim­ple. Un­like South Africa dur­ing its boy­cott, Is­rael is con­sid­ered a crit­i­cally im­por­tant strate­gic ally for the United States in its re­gion of the world – not be­cause Is­rael helps the United States in any way but be­cause Is­rael is so good at cor­rupt­ing Amer­i­can politi­cians. Via the coun­try’s own emis­saries and U.s.-based groups such as AIPAC,

which lob­bies ag­gres­sively on Is­rael’s be­half, Is­rael makes it a ma­jor po­lit­i­cal li­a­bil­ity for any mem­ber of the U.S. Con­gress or even the Pres­i­dent to take stands in de­fi­ance of what Is­rael hap­pens to be do­ing. So even with Is­rael do­ing things many would con­sider se­ri­ous – such as build­ing set­tle­ments on land pre­vi­ously held by or promised to lo­cal Pales­tini­ans, im­pos­ing spe­cial reg­u­la­tions on Pales­tinian res­i­dents in Is­rael, lim­it­ing eco­nomic op­por­tu­nity and even re­strict­ing telecom­mu­ni­ca­tions speeds in much of the area to only 2G to re­duce con­nec­tions with the out­side world – Is­rael keeps win­ning the war of po­lit­i­cal mind­share in Wash­ing­ton, D.C.

The new pro­posed fed­eral law would make it a felony for U.S. cit­i­zens to sup­port boy­cotts of Is­rael and Is­raeli set­tle­ments. If con­victed, those found guilty of the of­fence would face a min­i­mum $250,000 fine (run­ning to as high as $1 mil­lion) plus up to 20 years in prison. And all that would come even just by voic­ing sup­port for the BDS move­ment.

How­ever un­likely the bill may sound, it already has a lot of back­ing within Con­gress. The pro-is­raeli Leg­isla­tive Branch of the U.S. Gov­ern­ment already has 46 sen­a­tors say­ing they will vote for the bill, 15 of which are Democrats and 31 of which are Repub­li­cans. There are also 234 mem­bers of Con­gress who are sup­port­ing the bill.

The Amer­i­can Civil Lib­er­ties Union (ACLU) has op­posed the bill in its cur­rent form, urg­ing sen­a­tors to block it. In the ACLU’S state­ment on the mat­ter, it said: “We take no po­si­tion for or against the ef­fort to boy­cott Is­rael or any for­eign coun­try, for that mat­ter. How­ever, we do as­sert that the gov­ern­ment can­not, con­sis­tent with the First Amend­ment, pun­ish U.S. per­sons based solely on their ex­pressed po­lit­i­cal be­liefs.”

That may sound both log­i­cal and legally cor­rect, but a sur­pris­ing num­ber of sen­a­tors from both the Demo­cratic and Repub­li­can sides of the bill are sup­port­ing it even though it makes them an en­emy of the Amer­i­can peo­ple. On the Demo­cratic side, already ap­par­ently in fa­vor of the bill are Mi­nor­ity Leader Chuck Schumer and Kirsten Gil­li­brand, both of New York, as well as Ron Wy­den of Ore­gon, Richard Blumenthal of Con­necti­cut and Maria Cantwell of Wash­ing­ton. For the Repub­li­cans, Ted Cruz of Texas, Ben Sasse of Ne­braska and Marco Ru­bio of Florida are some of the more prom­i­nent ones who have ex­pressed sup­port for it.

The idea of crim­i­nal­iz­ing the BDS move­ment is not new. The grounds vary, but in some coun­tries, there is already leg­is­la­tion la­bel­ing the BDS move­ment as “hate speech” and fight­ing it that way. Oth­ers sim­ply block it di­rectly. Within Is­rael it­self, in July 2011 the Knes­set passed a law mak­ing it against the law to pub­licly call for a boy­cott against the coun­try, which it ex­plic­itly de­fined as “de­lib­er­ately avoid­ing eco­nomic, cul­tural or aca­demic ties with an­other per­son or an­other fac­tor only be­cause of his ties with the State of Is­rael, one of its in­sti­tu­tions or an area un­der its con­trol, in such a way that may cause eco­nomic, cul­tural or aca­demic damage.” The leg­is­la­tion also al­lowed that any­one call­ing for a boy­cott could be sued and forced to pay com­pen­sa­tion re­gard­less of the ac­tual dam­ages. Those that called for a boy­cott could also be blocked from bid­ding on Is­raeli gov­ern­ment ten­ders.

Be­sides those out­side laws and the pro­posed U.S. fed­eral law, there are also laws that many do not know are already on the books at the state level around the coun­try. The first of th­ese was passed by the Illi­nois state leg­is­la­ture on May 18, 2015, and was signed into law by Illi­nois gov­er­nor Bruce Rauner on July 23, 2015. That bill, SB-1761, puts com­pa­nies that boy­cott Is­rael on re­stricted lists re­lated to pub­lic pension fund in­vest­ments in a sort of re­verse-di­vest­ing

coun­ter­at­tack. Other laws that sup­port the anti-bds move­ment in­clude Cal­i­for­nia’s tough law say­ing that the state will not do busi­ness with com­pa­nies that do things “in­tended to pe­nal­ize, in­flict eco­nomic harm on or oth­er­wise limit com­mer­cial re­la­tions with the State of Is­rael or com­pa­nies based in the State of Is­rael or in ter­ri­to­ries con­trolled by the State of Is­rael.”

Ad­di­tional anti-bds laws are also now on the books in Alabama, Ari­zona, Cal­i­for­nia, Colorado, Florida, Ge­or­gia, In­di­ana, Iowa, Kansas, Michi­gan, Ne­vada, New Jersey, New York, North Carolina, Ohio, Penn­syl­va­nia, South Carolina, Ten­nessee, Texas and Vir­ginia. Those laws ap­proach the issue from dif­fer­ent an­gles, with the fol­low­ing two ma­jor themes:

The “boy­cott and pension funds can­not in­vest in you” bills. In­di­ana has a sim­i­lar pro­posed law, but there has been no ac­tiv­ity since for­mer gov­er­nor Mike Pence moved on to be­come Vice-pres­i­dent Pence.

The “maybe it’s le­gal for com­pa­nies to boy­cott, but our state won’t con­tract with you” bills. Un­der th­ese kinds of laws, the states are not al­lowed to en­ter into con­tracts with com­pa­nies in­volved in the boy­cotts. Th­ese in­clude Cal­i­for­nia’s law stat­ing the state will not do busi­ness with com­pa­nies that do things “in­tended to pe­nal­ize, in­flict eco­nomic harm on or oth­er­wise limit com­mer­cial re­la­tions with the State of Is­rael or com­pa­nies based in the State of Is­rael or in ter­ri­to­ries con­trolled by the State of Is­rael.” Other states with re­lated kinds of leg­is­la­tion are Alabama, Ari­zona, Ge­or­gia, Iowa, Kansas, Michi­gan, Ne­vada, New York, North Carolina, Ohio, Penn­syl­va­nia and Texas. South Carolina took this con­cept a ma­jor step fur­ther by pass­ing leg­is­la­tion that blocks state con­tract­ing with any com­pa­nies that boy­cott “a per­son or an en­tity based in or do­ing busi­ness with a ju­ris­dic­tion with whom South Carolina can en­joy open trade.” It was signed into law by then South Carolina gov­er­nor Nikki Ha­ley, now the cur­rent U.S. Am­bas­sador to the United Na­tions.

Other states are cur­rently con­sid­er­ing leg­is­la­tion sim­i­lar to both of the cat­e­gories of laws de­scribed above.

The new fed­eral law is coming at a time when the pres­sure against the Pales­tini­ans in Is­rael is reach­ing new lev­els of op­pres­sion. In Gaza, elec­tric­ity is only on for be­tween two and four hours a day, with In­ter­net ac­cess re­stricted and even data rates on smart­phones held to as slow as 2G lev­els.

The fed­eral law has also ap­peared when the U.S. Con­gress and the White House are des­per­ate to pass just about any­thing, now that the health care bill (as of this writ­ing, at least) ap­pears dead yet once again. That, to­gether with what ap­pears to be stronger-thanusual bi­par­ti­san sup­port for any bill this year, could push this leg­is­la­tion over the edge to pas­sage.

Why This Is So Im­por­tant to Con­sti­tu­tional Rights

The con­cept of be­ing able to openly speak your mind and spend your money wher­ever you want has been fiercely de­fended ever since it was built into the U.S. con­sti­tu­tion. Even more – like it or not for those who think the de­ci­sion was a bad one – the no­to­ri­ous Cit­i­zens United case, which as­serted that com­pa­nies have rights just like those of in­di­vid­u­als, sup­ports the rights of com­pa­nies to de­cide to spend their own monies wher­ever they want.

Em­bed­ded in the pend­ing U.S. fed­eral leg­is­la­tion is that it is ex­plic­itly a felony for any U.S. ci­ti­zen to sup­port boy­cotts of Is­rael or Is­raeli set­tle­ments. This po­si­tions the pro­posed fed­eral law com­pletely counter to the free­dom of speech part of the U.S. con­sti­tu­tion, and it can­not be al­lowed to stand be­fore just speak­ing out against (“sup­port­ing”) any­thing becomes a felony.

As for the state reg­u­la­tions, they, too, are of ma­jor con­cern and may be harder to fight against at the same time. Un­like the pro­posed U.S. law, they do not and legally can­not as­sert that cit­i­zens and com­pa­nies

op­er­at­ing within their bor­ders are com­mit­ting a crime by sug­gest­ing a boy­cott of a for­eign nation or that for­eign nation’s ac­tiv­i­ties. The rea­son is that reg­u­lat­ing in­ter­ac­tions with for­eign coun­tries is out­side the ju­ris­dic­tion of the states. In­stead, the states as­sert some­thing po­ten­tially far more sin­is­ter – that it is okay for the states to legally dis­crim­i­nate against com­pa­nies with views the states do not agree with.

That line of rea­son­ing for the states amounts to a form of re­tal­i­a­tion for dis­agree­ing with what a state thinks is legally cor­rect. One could ar­gue – and it is likely the states will ar­gue when and if their laws are chal­lenged in court – that it is their right as states to choose to use their money how­ever they wish. The catch is that the free­dom of speech ar­gu­ment only works on the ci­ti­zen side of things. Lo­cal, state and the fed­eral gov­ern­ment are in fact reg­u­lated in many ways that pre­vent them from be­ing able to do what­ever they want, based on their own be­liefs. This area is a tricky one, though, and should be mon­i­tored care­fully as it moves up the le­gal lad­der.

Imag­ine if it were to be­come a crime to sup­port a boy­cott or, al­ter­na­tively, be le­gal for states to take re­tal­ia­tory ac­tions be­cause they dis­agree with what a com­pany might legally be­lieve or prac­tice – on any level. The coun­try could rather quickly find it­self im­mersed in the same crazed logic that re­sulted in sev­eral his­toric past re­stric­tions of con­sti­tu­tional rights, in­clud­ing but not lim­ited to the fol­low­ing:

U Seiz­ing the prop­erty of those of Asian (and par­tic­u­larly) Ja­panese de­scent, as well as throw­ing them into in­tern­ment camps dur­ing World War II, just be­cause they might be dan­ger­ous

U Autho­riz­ing a coun­try-wide wire­tap of all Amer­i­can phones with­out cause, start­ing dur­ing the U.S. in­va­sion of Iraq, un­der the le­gal jus­ti­fi­ca­tion of the Pa­triot Act

U Al­low­ing a “stop and frisk” pro­ce­dure based to a large ex­tent on racial pro­fil­ing to stand for many years, un­til it was fi­nally chal­lenged just in the past few in U.S. courts

U Re­fus­ing to pro­vide legally au­tho­rized and man­dated fed­eral fund­ing for city po­lice forces in the United States if those cities hap­pen to fall un­der the de­scrip­tion of what are re­ferred to as “sanc­tu­ary cities” – this is hap­pen­ing right now, and re­gard­less of whether one agrees with sanc­tu­ary cities, this once again falls un­der the con­cept of pun­ish­ing a group (in this case, the po­lice force of a city and its cit­i­zens) for what they may be­lieve in

With­out ques­tion, if the fed­eral bill becomes law, it will be chal­lenged in the courts. The out­come of that fight is also far from cer­tain, de­spite what ap­pears to be a strong con­sti­tu­tional ar­gu­ment against the law in its cur­rent form.

Don­ald Trump is a staunch sup­porter of Is­rael and so far has done as Is­rael com­mands. There is lit­tle ques­tion that he would sign such leg­is­la­tion into law.

Trump sup­port­ers need to re­con­sider their sup­port for Trump when do­ing so helps en­sure the ero­sion of their own ba­sic hu­man rights.

What is needed is for the Amer­i­can peo­ple to just not let all of this hap­pen. The cit­i­zens need to find out about the leg­is­la­tion already on the books in their own states, study the pend­ing leg­is­la­tion in Con­gress and de­mand that those in charge – who they elected – change what they have been and soon will be al­low­ing to hap­pen. Peo­ple are also urged to con­tact ac­tivist or­ga­ni­za­tions like the ACLU and other le­gal ac­tion net­works to find a way to stop this be­fore it goes any fur­ther.

Amer­i­cans need to rec­og­nize that en­e­mies of their Con­sti­tu­tion are in­deed en­e­mies of the Amer­i­can peo­ple. Th­ese se­ri­ous at­tacks on the con­sti­tu­tional rights of the Amer­i­can peo­ple can­not be al­lowed to move for­ward with­out a fight.

One thing we can do is stop elect­ing politi­cians loyal to Is­rael. An­other es­sen­tial ac­tion is to ac­tu­ally boy­cott Is­rael and the com­pa­nies that sup­port Is­rael.

Photo by azlan­raiman, CC

Photo by her­i_que­bec, CC

Photo by ac­tivestills, CC

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