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January 10, 2019 9:11 am

ACLU Falsely Claims That Anti-Boycott Legislation Limits Free Speech

avatar by David Gerstman and Julie Lenarz

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Supporters of the BDS movement in South Africa. Photo: Twitter screenshot.

The American Civil Liberties Union (ACLU) — at one time the nation’s premiere civil rights organization — has falsely characterized legislation that would penalize companies that boycott Israel as limiting free speech.

A letter posted on the organization’s website claimed that the bipartisan Congressional legislation, which supports state laws barring contracts with businesses that boycott Israel, “flies in the face of the First Amendment’s guarantee that the state should impose no law infringing on the right to speak freely and to associate with those of like mind.”

Commercial conduct, however, is not speech.

As legal expert Eugene Kontrovich observed in July 2017, the proposed legislation is nothing more than an updating of existing legislation that prohibited American companies from participating in the Arab boycotts of Israel that dates back to the 1970s. That’s an inconvenient fact for opponents of the legislation, who also fail to mention that the original Arab boycott provisions were upheld against several First Amendment challenges.

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Senator Marco Rubio (R-Fla.), the main sponsor of the legislation, defended his bill on Twitter, explaining, “My bill doesn’t punish any political activity. It protects the right of local & state govts that decide to no longer do business with those who boycott #Israel. So boycotting #Israel is a constitutional right, but boycotting those participating in #BDS isn’t?”

Rubio is correct. Nothing in this bill restricts Constitutionally-protected free speech. The bill does not punish someone who chooses not to do business with Israel for political reasons. Companies and individuals are perfectly free to criticize Israel as they see fit. Therefore, any suggestion that this bill creates potential criminal or civil liability for non-profit organizations is simply an effort to create confusion as to the bill’s impact.

This mischaracterization of the bill is being co-opted by groups that are anti-Israel in their effort to actively undermine the US-Israel relationship. The ACLU’s complete and utter failure to recognize anti-Zionism as antisemitism is unacceptable. It is appalling to see one of the longest-standing and most venerated civil rights organizations in our country’s history disseminating misinformation, fomenting antisemitism, and lauding hate-mongers.

It is also important to remember that federal laws prohibiting American entities from complying with unsanctioned foreign boycotts against Israel have been protected by our courts for 40 years. As one court explained, the US government has a legitimate policy interest in cutting off efforts by foreign governments to force American citizens to participate in an economic battle against Israel that is repugnant to US values and traditions.

The founders of the BDS movement have been nothing but honest about who they are, as well as their intentions. They have stated openly their commitment to the destruction of Israel, and they have made it clear that no change in Israeli policy will ever appease them. In red states and blue states, with strong bipartisan support, lawmakers in 26 states have now declared BDS a virulent expression of antisemitism that has no place in our society.

It is not a denial of free speech to protect American interests. To the contrary, the proposed legislation is pro-American by the fact that it protects American business and allies from possible intimidation and discrimination — in violation of American sovereignty. The anti-boycott bill is not an effort to suppress free speech, but an important weapon in the fight against hate and intolerance.

David Gerstman is Senior Editor of The Tower. Julie Lenarz is a senior fellow at The Israel Project. A version of this article was originally published at The Tower.

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