Members of Congress last month introduced the “.” The bill purports to address a real problem: According to the FBI, incidents of hate crimes motivated by anti-Jewish bias have significantly in recent years.
But anti-Semitic harassment is already illegal under . The new bill does not change that fact, but its overbreadth makes it likely that it will instead silence criticism of Israel that is protected by the First Amendment.
The proposed legislation, for example, defines speech that applies a “double standard for Israel,” or denies “the Jewish people their right to self-determination,” as evidence of anti-Semitism. It also directs the Department of Education to consider such speech in its investigations, which could result in a loss of federal funding for schools. On Monday, the ACLU sent a letter to Congress opposing the bill.
The ACLU does not take a position on the Israeli-Palestinian conflict, but it does take firm positions on efforts to stifle free speech. The threat of a federal investigation and subsequent loss of government funding will likely scare schools into suppressing speech critical of Israel. Students and teachers who criticize the Israeli government or advocate for Palestinian rights are the obvious targets. But freedom of speech will be the loser.
The bill is part of a disturbing surge of government-led attempts to suppress the speech of people on only one side of the Israel-Palestine debate. The trend manifests on college campuses, in state contracts, and even in bills to change federal criminal law, but the impact is the same: Those who seek to protest, boycott, or otherwise criticize the Israeli government are being silenced.
On college campuses, a of and have been disciplined or with discipline for engaging in actions in support of Palestinian rights or in opposition to Israeli policies. Student groups like Students for Justice in Palestine have been sanctioned for legitimate and even . Such attacks on free speech are likely to escalate now that the Trump administration has nominated , who has led numerous campaigns to suppress student speech critical of Israel, to lead the Department of Education’s Office of Civil Rights. Marcus has urged people to file complaints of anti-Semitism with the Department of Education in response to criticism of Israel, arguing that the mere filing of such complaints, regardless of their outcome or merit, will pressure schools to suppress anti-Israeli criticism.
Outside campus life, campaigns aimed at excluding critics of Israel from participating in public events are mounting, often with support of publicly funded institutions. A Chicago-area public library temporarily a talk about a book titled “The Battle for Justice in Palestine,” before reconsidering its decision. The Missouri History Museum a community event titled “From Ferguson to Ayotzinapa to Palestine,” after organizers refused to remove Palestinian panelists.
In Nassau County, New York, local officials a local arena from featuring a performance by Roger Waters of Pink Floyd because he advocates for a boycott of Israel. And, earlier this year, Florida officials attempted to Lorde from performing in Miami and Tampa after she cancelled a concert in Tel Aviv. (All three shows went on.)
State legislatures have joined the effort. The South Carolina Legislature recently introduced budget language public colleges and universities to use a definition that equates criticism of Israel with anti-Semitism. The definition is almost identical to the language used in the federal Anti-Semitism Awareness Act introduced in Congress. More than 100 other bills penalizing boycotts of Israel have been introduced in in the last four years, and 24 states have enacted legislation targeting the boycott movement. Congress, too, is currently considering a bill that would make it a crime to participate in certain boycotts of Israel.
Many of these efforts clearly don’t withstand legal scrutiny. Earlier this year, in response to an ACLU lawsuit, a federal court in Kansas blocked that state’s anti-boycott law, recognizing that political boycotts of Israel are constitutionally protected and that the state can’t suppress or undermine them. The ACLU is challenging a similar law in Arizona, on behalf of a lawyer who was asked to certify that he doesn’t boycott Israel in order to renew his law firm’s contract to provide legal services to incarcerated people. Fourteen other states have laws similar to those in Kansas and Arizona. These laws have rightly attracted scorn and ridicule — most famously in Dickinson, Texas, which Hurricane Harvey victims to pledge not to boycott Israel as a condition of receiving relief aid.
In 1943, Supreme Court Justice Robert H. Jackson famously wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” In other words: The First Amendment stands as a bulwark against government attempts to suppress dissent.
These efforts to censor criticism of the Israeli government and advocacy for Palestinian rights do a disservice to the real problem of anti-Semitism in the United States. Addressing anti-Semitism is important and necessary, particularly in the current climate, but it does not require silencing constitutionally protected protest or expression.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.