When it comes to free speech, one issue flies under the radar. It has been called “one of the gravest threats to free speech in the West,” and yet it probably isn’t what you think.
Boycotts against Israel have increasingly become the target of legislation from states all across the country.
These boycotts — frequently placed under the umbrella moniker of Boycott, Divestment, and Sanctions (BDS) — are intended to pressure Israel to end its occupation of Palestine.
Israel and its supporters have waged lengthy campaigns against the boycotts, claiming they are unjust and anti-Semitic.
The Ohio House of Representatives passed the bill in an 81-13 vote this past December, in spite of opposition from the ACLU.
The famed civil liberties organization — which is, admittedly, far from free of its own issues — has published a number of statements outlining how anti-boycott legislation threatens First Amendment rights.
The ACLU has taken this stance fully aware of the potential consequences it may have. The organization did, after all, lose large numbers of supporters and donors after it defended the free speech rights of neo-Nazis in the infamous Skokie case.
But the ACLU is also aware of the historical importance of defending the right to boycott as a civil liberty.
“From the Boston Tea Party to the Montgomery bus boycott to the campaign to divest from businesses operating in apartheid South Africa, political boycotts have been a proud part of this country’s constitutional tradition,” wrote ACLU staff attorney Brian Hauss in a piece earlier this month.
The constitutional right to boycott was even acknowledged in Ohio when the state’s anti-boycott bill was being debated.
In his testimony against the law, Case Western Reserve law professor Ted Steinberg took a firm stand, invoking historical precedent in the process.
“Boycotts are not only a powerful and effective tool in the pursuit of social justice, they are central to a functioning democracy,” he said. “This legislation, in other words, would make Tom Paine roll over in his grave.”
What’s more, there is an attempt to replicate these anti-boycott laws on the federal level.
Authored by Sen. Rob Portman (R., Ohio) and Sen. Ben Cardin (D., Maryland), the Israel Anti-Boycott Act would make it a felony for any American to support the international boycott against Israel. The bill has been endorsed by 50 senators — 37 Republicans and 13 Democrats.
In a Washington Post op-ed, the ACLU shared the consequences Americans could expect if the Israel Anti-Boycott Act were to go into effect.
“Violations would be punishable by civil and criminal penalties of up to $1 million and 20 years in prison,” write ACLU national legal director David Cole and ACLU national political director Faiz Shakir.
As a result of the ACLU’s opposition, Sen. Cardin indicated he was open to amending the bill, but the bill’s published language has not changed since it was introduced in March.
None of this is to suggest that a boycott of Israel is “right.” No person or organization should be coerced into a boycott, but no one should be denied the right to participate in one either.
Allowing a state to prohibit companies with which it deals from participating in one boycott opens the door for the state to prohibit company participation in any and all boycotts if they wish to have the support of the state. The same goes for the federal government.
First Amendment rights are vital to the free flow of ideas. Without them, it would be impossible for any citizen to have the choice to either support or criticize anyone or anything.
For any state government to stand in the way of this choice should trouble all citizens. If this isn’t alarming enough, perhaps the federal government eyeing up a similar strategy will be enough to concern people.
This is a direct threat to our ability to express ourselves, yet it has already found its way into nearly half of our states and onto the floor of Congress.
Ohio’s lawmakers, as well as many others across the country, have failed to uphold the tenets of the First Amendment, but there is still a chance to go right their wrong.
If they choose to stick with the anti-boycott law, however, don’t be surprised if they come for your cause next.
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