This week, amid a partial government shutdown, senators tried to sneak through a bill that would encourage states to suppress constitutionally protected political boycotts of Israel.
Ultimately, the Combating BDS Act failed to make it to the Senate floor, largely because enough people exercised their First Amendment right to protest the bill and educate senators that they should get their priorities straight. But it seems that’s not the only education that is in order.
The recent spate of bills that seek to penalize Israel boycotts is a bipartisan problem. Many Senate Democrats blocked the Combating BDS Act this week, rightly arguing that Congress should end the government shutdown rather than making this the first order of business of the new session. But four Senate Democrats voted to pass the bill, and many others, including Sens. Chuck Schumer (D-N.Y.) and Ben Cardin (D-Md.), have expressed support for other anti-boycott efforts, even when they have come at the expense of our constitutional rights.
This week, however, Sen. Marco Rubio (R-Fla.) led the charge, and even took to Twitter to spread a number of perplexing and often downright false statements about the First Amendment and the Combating BDS Act.
Here’s what Sen. Rubio got wrong:
Fiction: Local and state governments should be free to end contracts with companies that boycott Israel.
Senator Rubio that not only should states be free to boycott the boycotters, they have the right to boycott them. That’s a troubling proposition, and one specifically prohibited under the Constitution.
First Amendment rights belong to the people, not the government. The government cannot impose its views on people or punish them for expressing views that the government disagrees with. This principle applies to both individuals and companies doing business with the state, and with full force to politically motivated boycotts. Two federal courts recently affirmed this, blocking laws in Arizona and Kansas that penalized individuals and companies for boycotting Israel. And this principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other “subversive groups” in order to keep their jobs.
The ACLU successfully challenged many of those laws on constitutional grounds — just as it’s now fighting unconstitutional state laws suppressing lawful boycotts of Israel — and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same should happen to the laws requiring people to pledge not to boycott Israel as a condition of doing business with the government.
Fiction: The Combating BDS Act ‘doesn’t punish any political activity.’
That’s what Sen. Rubio to his followers on January 7. Less than a day later, he that his bill “allows local & state govt’s to boycott the boycotters.” That, by definition, is state-sponsored punishment for a constitutionally protected activity, and it’s what the First Amendment seeks to protect people from.
Representative Eliot L. Engel (D-N.Y.), told that he prefers another bill, the Israel Anti-Boycott Act, because, he argued, it seeks to address constitutional concerns about the Combating BDS Act. That’s also false. Both bills come from the same unconstitutional playbook and make a mockery of the First Amendment. In fact, the Israel Anti-Boycott Act takes it to another level, imposing criminal penalties of up to $1 million on individuals or companies boycotting Israel or any foreign country if the boycott were called for by international governmental organizations like the United Nations. Senators Diane Feinstein (D-Calif.) and Bernie Sanders (I-Vt.) similarly that the bill violated the First Amendment.
Fiction: Opposing anti-BDS laws is de facto support of BDS.
Not true. The ACLU doesn’t take a position on boycotts of Israel, but we have long defended the right to boycott, which is a proud part of America’s constitutional tradition and protected by the First Amendment. And we’re not the only ones. A number of of — many of whom who don’t take a position on the Boycott, Divestment, and Sanctions movement or have even expressed opposition to it — have First Amendment concerns with the bill.
Whatever your views on BDS, we all should be able to agree that the government has no business telling us which causes we can or cannot support.
Marco Rubio and his colleagues may not agree with the BDS movement, and they have a First Amendment right to express that. But public officials cannot use the power of public office to punish views they don’t agree with. That’s the kind of authoritarian power our Constitution is meant to protect against.
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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 -
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Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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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.