Before a tweet by U.S. Rep. Ilhan Omar (D) regarding money in politics included regrettable language about a pro-Israel lobbying group dominated the discussion surrounding U.S. policy toward Israel, U.S. Senator Marco Rubio (R) wrote an op–ed defending a bill that included his Combating BDS Act, which passed the Senate this month.
While Rubio decried “the lies about” his bill, he used over 900 words to engage in his own misdirection about criticism of Israeli policy.
BDS, or Boycott, Divestment, and Sanctions, is a movement working to stop the international backing of Israel and its oppression of Palestinians and colonization of Palestinian land. The movement, which seeks to pressure Israel into complying with international law, is made up of human rights activists, academics, labor unions, and religious people across the world.
The bill in question would signal to state governments that Washington would welcome the passage of state laws that would boycott those who boycott Israel in protest of the country’s occupation of the West Bank. The bill should not be introduced in the U.S. House of Representatives, as the Arab American Institute, where I work, and organizations such as the American Civil Liberties Union, J Street, and the National Coalition Against Censorship have objected to this and similar pieces of legislation as invitations to violate the First Amendment.
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We must now look to Speaker Nancy Pelosi (D) to cool the anti-democratic passions of our upper chamber by not introducing anti-boycott language in the U.S. House of Representatives.
Rubio falsely labels BDS as discriminatory, arguing that the First Amendment “does not protect the right of entities to engage in discriminatory conduct.” While this statement is true in principle, it is a curious stance from a senator who, in 2014, signed on to an amicus brief advocating for the right of entities to engage in discriminatory conduct based on First Amendment protections. It is also curious that Rubio simultaneously defends state statutes that “divest from companies engaged in business with Sudan and Iran” but labels private actions to divest from companies engaged in business with Israel as “discriminatory.”
No understanding of U.S. discrimination law includes private decisions to not engage in economic activities with foreign governments that participate in terrorism, systemic human rights abuses, or other flagrant violations of international law.
Next, Rubio seeks to paint the law as settled in support of anti-BDS legislation. He does a disservice to his case by citing the U.S. Supreme Court decision Rumsfeld v. Forum for Academic and Institutional Rights as allowing government regulation of “conduct, not speech” but not reading that same decision affirming that the First Amendment protects “conduct that is inherently expressive,” such as flag burning. Rubio neglected to cite the Court’s view that the “right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott…” in 1982’s NAACP v. Claiborne.
Rubio mentioned a federal court decision in Arkansas upholding a state anti-BDS law, but neglected to mention federal court decisions last year that blocked similar laws in Kansas and Arizona. Rubio curiously emphasizes, falsely, that his bill “focuses on business entities—not individuals,” which he surely understands is a meaningless distinction—business entities are composed of individuals and individuals can be business entities. Indeed, Rubio has praised the Supreme Court decision in Citizens United v. FEC, which affirmed that First Amendment protections extend to legal entities such as corporations.
Last, Rubio states that “anti-Israel activists” are the chief critics of his bill, citing a website maintained by the American–Israeli Cooperative Enterprise as proof of their intent. While this is a false statement, as many organizations within Israel oppose anti-boycott legislation, the argument fundamentally conflates foreign policy with civil rights. One need not acknowledge the illegality of Israeli settlements in the West Bank in order to stand for the rights of other U.S citizens to do so if they choose.
The U.S. Constitution takes no stance on the validity of any expressive act, only that political expression remains a central avenue in our democratic system. If Rubio’s anti-BDS bill is given a vote on the House of Representatives, it will lend credence to governmental attempts to favor certain political ideas and to ban others, the very power the First Amendment forbids.
Ryan J. Suto is Policy Counsel for the Arab American Institute, an organization that encourages the direct participation of Arab Americans in political and civic life.