House Intelligence Committee ranking member Rep. Adam Schiff (D-CA) speaks to reporters on July 11, 2017 in Washington, D.C. (Photo by Chip Somodevilla/Getty Images)

What Does the Resistance Really Stand for If It Criminalizes Free Speech?

Pressure is building for ‘progressives’ to pull their support from proposed legislation that would criminalize support for Palestinian rights.

BY David Palumbo-Liu

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This is not the first time we have seen the shameful tradition of knee-jerk mainstream Democratic support of Israel.

Two pieces of legislation before Congress have prompted a heated discussion over just how far Congress will go to support Israel in its attempts to silence its critics.  Although they were initially greeted with support from both sides of the aisle, due to formidable opposition from the American Civil Liberties Union and others, there are signs that politicians are responding to public outrage and reconsidering their endorsements. 

The sweeping new legislation would make it a felony for people in the United States to support the Palestinian-led movement for Boycott, Divestment and Sanctions against Israel. The bills constitute a blatant attack on international human rights bodies like the United Nations Human Rights Council (UNHRC).

The “Israel Anti-Boycott Act,” S. 720 in the Senate and its House counterpart, H.R. 1697, show that building bipartisanship is easy when it comes to suppressing voices critical of Israel. The degree of suppression is devastating: The minimum civil penalty for violating the prohibitions is $250,000, but the ceiling is $1 million and 20 years in prison.

To say these bills would have a chilling effect on political dissent is an understatement. They effectively use the U.S. government to silence its citizens and others for refusing to do business with Israel. Importantly, this legislation would dole out punishment for refusing to do business with companies operating in the occupied Palestinian territories—companies that are thereby acting illegally under international law. Astonishingly, an individual or business could be convicted for obeying international human rights rulings.

The bills are targeting the movement to boycott, divest from and sanction (BDS) Israel. Launched in 2005, BDS is a non-violent, human-rights-based movement created with the endorsement of more than 170 Palestinian civil organizations. It takes inspiration from historical boycott efforts in Palestine, as well as from the South African anti-apartheid movement.

Since its inception, the movement has garnered international support, and—because of that—the Israeli government has unleashed a multi-million-dollar effort to destroy it. Israeli Prime Minister Benjamin Netanyahu has called BDS a “strategic threat” to the state. Yet, this has not stopped the campaign’s momentum. In the United States, the movement has garnered important acts of solidarity from across social movements and was included in the platform of the Movement for Black Lives.

Drafted by the American Israel Public Affairs Committee (AIPAC), the new proposed legislation expands the “Export Administration Act” of 1979 and the Export-Import Bank Act of 1945.  The former was put in place to offset the Arab boycott of Israel, established in 1945 by the League of Arab States. The Act called on the President to “issue regulations prohibiting any United States person, with respect to his activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to take … actions with intent to comply with, further, or support any boycott fostered or imposed by a foreign country against a country which is friendly to the United States.”

In other words, one could be punished for following the call from a foreign country to boycott a country “friendly” to the United States. The current AIPAC draft extends the scope of criminality to actions aimed at heeding the boycott call of non-state actors: in this case, the United Nations and the European Union. The proposed legislation also raises the maximum civil penalty from $100,000 to $1 million and doubles the maximum prison sentence to 20 years.

The current bills were prompted by a number of resolutions passed in 2016 by the United Nations Human Rights Council (UNHRC) that, taken together, formed an endorsement of Palestinian rights and required companies to bear these rights in mind as they engaged in business transactions. Among several actions, the UNHRC called upon states to defend human rights workers and organizations from attack and, importantly, “encouraged business enterprises to avoid, identify, assess and address any adverse human rights impacts related to their activities.” The UNHRC also reaffirmed the Palestinian people’s right to self-determination and demanded that Israel end all practices and actions that violate the rights of Palestinians. 

The latest AIPAC bills are part of the blowback the United Nations is facing for taking this stand. Israeli Prime Minister Benjamin Netanyahu has even suggested that the United States leave the UNHRC, saying, “These types of organizations must be delegitimized.” U.S. Ambassador to the United Nations Nikki Haley has accused the UNHRC of being “overwhelmed by a political agenda” for its criticism of Israel.  Thus, AIPAC explicitly is trying to use U.S. Congress to silence critics of Israel and to hamper international human rights efforts.

The proposed federal bills thus create yet another pathway for the United States to override international human rights efforts. They also grant legitimacy to the many anti-BDS laws found in individual states. The American Civil Liberties Union (ACLU) asserted in an open letter dated July 2016 that the state bills target those who express support for the BDS movement. The organization noted that advocates are “penalized solely because they choose to express their opinion and because their opinion is disfavored by the political class in the states in question.”

In a July 2017 letter opposing S.720, the ACLU makes a similar argument, saying that the bill “would punish individuals for no other reason than their political beliefs” and would be in direct violation of the First Amendment. 

Shortly after the ACLU wrote its letter, and Glenn Greenwald and Ryan Grim published an article in The Intercept condemning the proposed legislation, reaction set in.  An article in The Daily Beast dismissed the criticism of these pieces of legislation as “fake” on the grounds that the bills involved only commercial activities and simply built on existing law. This line was used, as well, by the primary sponsors of the Senate bill: Democrat Ben Cardin of Maryland and Republican Rob Portman of Ohio, who declared: “We cannot state this strongly enough: the bill does not ‘punish US persons solely on their expressed political beliefs.’”

In an op-ed published in the Washington Post, two members of the ACLU leadership rebutted those assertions, arguing that the bill “threatens severe penalties against any business or individual who does not purchase goods from Israeli companies operating in the occupied Palestinian territories and who makes it clear—say by posting on Twitter or Facebook—that their reason for doing so is to support a U.N. or E.U.-called boycott. That kind of penalty does not target commercial trade; it targets free speech and political beliefs.”

As of this date, the Senate bill has the support of 31 Republicans and 14 Democrats. The House bill has 234 co-sponsors: 177 Republicans and 63 Democrats. Disappointingly, among those supporters are not only “liberal” members of Congress like Chuck Schumer and Kirsten Gillibrand, but also some who have declared themselves part of the anti-Trump #Resistance: Ted Lieu, Adam Schiff, and Eric Swalwell.  

But in the face of the public outrage that has emerged, some are reportedly rethinking their support. Haaretz reports that more than a dozen Democrats in both houses of Congress are reconsidering their endorsements, and the liberal Zionist organization J Street has expressed “serious concerns.” The report notes that even The American Interest—a centrist, pro-Israel journal—has expressed concern that the legislation is too sweeping.

Meanwhile, Sen. Ben Cardin of Maryland told The Intercept that, following public outrage, he is willing to address concerns and revisit the legislation. Yet, it is not year clear what concrete steps he plans to take to address the many civil liberties concerns raised by the legislation.

According to Haaretz, Gillibrand stated, “We have a different read of the specific bill language, however, due to the ACLU's concerns, the Senator has extended an invitation to them to meet with her and discuss their concerns.”

This proposed legislation is not the first time we have seen the shameful tradition of knee-jerk mainstream Democratic support of Israel, put on display in a Democratic resolution to back Israel as it launched its devastating attack on Gaza in the summer of 2014.  Thanks to principled opposition, there is hope that these bills will not pass. However, it is not enough for lawmakers to say they are reviewing their support for the legislation: They must come out publicly against the bills and all similar legislation aimed at criminalizing peaceful protest in support of Palestinian human rights.

This standard particularly applies to politicians who are cashing in on a “progressive” image. After all, this proposed legislation is poised to drastically curtail the most basic rights to protest and dissent, in a landscape where the Trump administration is orchestrating incitement and crackdown targeting protesters.


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David Palumbo-Liu is the Louise Hewlett Nixon Professor, and Professor of Comparative Literature, at Stanford University.

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