I’m no fan of the BDS movement and take no issue with Israel’s unwillingness to welcome people who hate it with open arms. But this isn’t Israel, and just because an idea is anathema doesn’t mean people don’t get to believe in it. That’s the beauty of America, you get to be as stupid as you wanna be.
But a bipartisan gaggle of senators, ours, not Israel Knesset, has decided that people who hold political ideas with which they don’t agree, are criminals.
[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.
It’s almost incomprehensible that anyone elected to the senate would entertain a law so flagrantly unconstitutional. And yet, not one, but 43 have done so. Not just Republicans. Not just Democrats. Finally, bipartisanship.
So who would be so intellectually clueless, so morally bankrupt, as to support the passage of a law that criminalized political speech?
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.
Whether your fav senator comes from the right or left, you can take comfort in knowing that they all share utter disdain for the First Amendment. Except this time, it’s not the hate speech that makes you cry, but political speech that undermines an ally.
Much as it’s understandable that AIPAC, the American Israel Public Affairs Committee, pushed this bill as hard as possible, as it’s certainly in Israel’s interest to do everything possible to eliminate support for the BDS boycott, this is just not allowed under the First Amendment. Not even a little bit. And that should have been too obvious for any United States Senator to ignore. But obviously not.
Much as I’ve been highly critical of the ACLU for its conflicted commitment to social justice at the expense of the Constitution. it has come out for the First Amendment. This time.
[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.”
Glen Greenwald makes an important point here:
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.
As has been noted, the ACLU has been feeding off Skokie for decades largely because it hasn’t gone too far out on a limb since 1978. But this is a particularly precarious time, as it’s been a donation Hoover based entirely on quasi- or anti-constitutional positions that tweak the social justice heartstrings of the terminally passionate.
Leaping into the BDS morass, and on the “wrong” side since SJWs are huge into BDS, could mean alienating its donation base. There is nothing worse than not adhering to the social justice orthodoxy, whatever that may be on a daily, if not hourly, basis.*
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.
Greenwald sought comment from sponsors of the bill, and their responses reflected their deep understanding of, and commitment to, the Constitution.
[Democratic Rep. Ted] 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.”\
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.”
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.
Kinda makes you feel all warm and fuzzy about the nice people writing federal law, right? But what about the bill’s primary sponsor? Surely he knows what’s in the bill and how it’s related to other federal laws.
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.
In an odd technical way, that’s almost true. The problem is it’s not correct at the same time, and senators are supposed to understand how law works.
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.”
But regardless of criminal sanctions (what’s 20 years between friends?), it’s still kinda covered by “Congress shall make no law abridging the freedom of speech.” That’s true whether it’s “hate speech” or really pisses off Israel. The First Amendment applies either way, and one would hope somebody in Congress has read it or gives a damn.
*As noted in the comments, this is backwards. In this instance, the constitutional argument and the SJW view favoring BDS align, so ACLU takes no risk of alienating its donors while being able to take a strong First Amendment position. Sorry for my getting it wrong.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Oh, give it a rest. We all learned 8-9 years ago that we have to pass a law to find out what’s in it.
Or 16 years ago?
If you don’t mind me asking, what is your opinion on BDS in general? I support it but I am also more than willing to go further with countries like Saudi Arabia, Qatar, UAE, etc. Open question for anyone but I’m also interested in Scott’s general take. I don’t think it’s fair to chalk it up to an “SJW Issue”.
That said, I think it’s quite sad how the usual free speech warriors don’t even remotely seem to care (or even know of) this incident. What’s even worse is there is a decent chance that this will pass, it’s just a matter of continued lobbying on senators who, as you mentioned, don’t even know what’s in the bill.
I don’t know that his stance on BDS is even relevant. This is an unconstitutional law being proposed by people who don’t seem to care about the constitution when it suits their re-election campaigns.
It’s almost enough to make me a libertarian.
@Kemn
I don’t think it’s relevant to the subject matter, but I was just curious. He specified that he doesn’t want to talk about it and I respect that.
@SHG
Fair enough. The “usual free speech warriors” I am referring to are people like Ben Shaprio, Steven Crowder, Milo Yiannapolous, etc. Those known for their activism and critique of suppression of free speech on college campuses.
I brought it up to bemoan that I don’t think many people who consider themselves free speech absolutists often actually are that.
Since I don’t follow them, I have no clue whether they jumped on this issue or not, but I see plenty of others (like me) who will fight the same First Amendment fight no matter what the cause. Not every person leaps onto every issue within hours.
Fair enough again…..but those people have a track record of not speaking about BDS censorship in general, which is why I cite them specifically. I do think the bulk of people on this issue are principled, but some aren’t.
And fair enough for you too. Since I have no clue what Shapiro or Milo do, I have no answer. But then, it’s not relevant as far as I’m concerned. I’m not a big fan of the tu quoque fallacy as a retort.
I do mind you asking, and I won’t allow any comments about it. Stick to the subject of the post or go elsewhere.
I have no idea what you mean by “the usual free speech warriors.” You may know what’s in your head, but nobody else does.
“Leaping into the BDS morass, and on the “wrong” side since SJWs are huge into BDS, could mean alienating its donation base.”
Maybe I’m misreading here, but if the ACLU’s position is seen as addressing BDS in any way, wouldn’t they be seen as favoring BDS (and thus the SJWs should be fine with it, and probably even give more)? After all, they’re opposing an anti-BDS bill, so they must support BDS, right?
Obviously this doesn’t logically follow–it’s entirely possible to believe both that this bill is unconstitutional, and that BDS is, at best, ill-advised (as you demonstrate). The two issues are orthogonal. But if people who don’t always think clearly and logically are going to tie the two together, I think they’re going to do so as I suggested above. The ACLU’s donations from SJWs should be entirely safe.
You’re right. I got it backward. In this case, the constitutional position and the SJW position align, so the ACLU takes no risk of alienating by its donors.
In America, there are two political parties, the Stupid Party and the Evil Party. When the Stupid Party is in power, it passes stupid laws. When the Evil Party is in power, it passes evil laws. Occasionally, though, the parties come together to pass a law that is both stupid and evil. This is referred to as “bipartisanship.”
I see what you did there.
Now now this is America where everyone can be anything if they only work hard and our politicians have been working their noses to the grindstone for decades to be Both level and stupid
So under the existing law, it’s already illegal to boycott Israel (or to “support” a boycott, however that gets interpreted) because Saudi Arabia tells you to do so. Under the amendments in the bill, it’s would also be illegal to boycott Israel because the UN tells you to do so. There’s nothing new in the bill other than the addition of NGOs.
So why the hair on fire from The Intercept and the rest? Fundraising opportunity, or did someone just now notice that there are some really problematic parts of 50 USC 4607? It’s not that new…
Could be that it just made it onto the radar, or it could be that prohibitions against international trade by corporations isn’t quite the same thing as criminalizing individual’s speech. Good question, though.
So I can’t speak for the authors of the piece, but I think the main issue here is that the ambiguity of the law makes its application broad. You mentioned that the current law (the Export Administration Act of 1979 and the Export-Import Bank Act of 1945) make it illegal to support BDS under the Arab League’s official boycott. But the text of the bill goes in further by amending those two acts with the following…
_______________________________
2) in subparagraph (B), by striking “which have the effect” and all the follows and inserting the following: “which have the effect of furthering or supporting—
“(i) restrictive trade practices or boycotts fostered or imposed by any foreign country, or requests to impose restrictive trade practices or boycotts by any foreign country, against a country friendly to the United States or against any United States person; and
“(ii) restrictive trade practices or boycotts fostered or imposed by any international governmental organization against Israel or requests to impose restrictive trade practices or boycotts by any international governmental organization against Israel; and”.
You can find the full text here:
https://www.congress.gov/bill/115th-congress/senate-bill/720/text
__________________________
So, it seems to me that under this law, any acts of boycott that are seen to “further or support” boycotts would be potentially criminal, not just those which support the official boycott of an organization like the Arab League. Especially in the hands of the Trump administration, that level of ambiguity cannot possibly be a good thing.
[Ed. Note: Link is fine.]
Well, yes, but that section being amended in 50 USC 4602 already refers to “furthering or supporting” restrictive trade practices and boycotts. It’s not new language. It’s been subject to flexible interpretation and malicious prosecution for years, if such a thing were desired. The only thing new is that “international government organizations” (including specifically the UN and the EU) would now be included in those whose boycott efforts might be implicated.
So again, other than suddenly realizing that within the U.S. code lies language that has always been highly problematic, what’s the new concern?
Gee, I’m shocked to find legislators who haven’t read the bills they sponsor.
I am not. After all they announce it on national tv. What Really Makes me nuts is when they pass one admitting its probably illegal but they will let the courts sort it out,
He was being sarcastic.
Obviate that by allowing tags:
Tags are for kids.
Holy Flood Gate Floor Covering esteemed one!
No link to that newspaper you read everyday?
https://youtu.be/zQVfOguNWBw
Goddamnit, Wyden, you made me like you when you fought SOPA/PIPA and voted against reauthorizing the Patriot Act. Why’d you have to go and do this? You’re tearing me apart, Ron!
The bill’s sponsors don’t need a lesson in constitutional law; they are giving one. They are teaching the First-Amendment-doesn’t-protect-hate-speech crowd what a country in which the law could ban hate speech would look like. Which would a democratic majority sooner ban as hate speech: criticism of Israel or campus microagressions?
You are such an optimist.
The constitutional law lesson that congress keeps teaching is “we can pander as much as we want, and when we go overboard the supreme court will fix it.” Which has historically been generally, if not completely, true.
There seems to be a spate of blatantly unconstitutional laws being passed recently, which leads me to wonder if it’s intentional, as the legislators know it will take some relatively long period of time to get the law tossed in court, but in the meantime, the perception of what’s legal and what isn’t gets moved in the direction the lawmakers intended, and behaviors start to change to comply.
Not sure there’s any spate, or it just seems that way, but that’s a very cynical read. That doesn’t make it wrong.