ACLU Tells Rubio He Doesn't Understand How the First Amendment Works

Sen. Marco Rubio
Sen. Marco Rubio Photo by Gage Skidmore / Flickr
Update: Rubio's bill finally passed through the Senate on February 5.

Sen. Marco Rubio's career has improbably rebounded since Donald Trump humiliated him during the 2016 election season. It didn't seem to matter that Rubio used an LGBTQ mass murder as an excuse to break his own promise and run for Senate again. Now Trump has basically deputized Rubio to serve as what some politicians are calling "virtual secretary of state for Latin America." He crafted tragicomically ineffectual Cuban sanctions and recently began agitating for the U.S. government to mount what amounts to a coup in Venezuela.

Rubio is running this massive wing of America's foreign-policy programs despite the fact he seemingly does not understand how his own country's Bill of Rights works. In fact, his interpretation of the First Amendment is so boneheaded the American Civil Liberties Union was forced to scold him publicly on Twitter.

First, some background: For years, Rubio has been pushing a series of bills aimed at cracking down on the so-called Israeli "Boycott, Divestment, and Sanctions" (BDS) movement — an activist boycott against Israeli companies that illegally conduct business in the occupied Palestinian West Bank and Gaza Strip. (Activists, for example, boycott Caterpillar machinery because Palestinian-rights groups say the company's equipment is regularly used to bulldoze Palestinian homes to build Israeli settlements.)

Pro-Israeli groups claim the BDS movement is inherently anti-Semitic, but Palestinian-rights activists say they are simply protesting the government's treatment of Palestinian people, who live with restricted citizenship and inside what many critics call an "apartheid state."

Rubio, along with a bipartisan group of centrist lawmakers, has been trying to outlaw the BDS movement for years as a favor to Israel's current far-right government. In 2017, he joined a large group of Democrats in pushing a failed bill that would have made it a felony to admit you were boycotting Israeli companies as part of the BDS movement. Now Rubio is pushing the "Combatting BDS Act," which protects individual states' rights to ban BDS.

The problem with that plan, however, is that it is blatantly unconstitutional — the First Amendment clearly gives Americans the right to boycott whatever they want. Furthermore, multiple federal courts have struck down similar BDS crackdowns in the past. Rubio has no leg to stand on here.

But he's still trying. Today he claimed online that the First Amendment only "applies to speech, not conduct" or "commercial" activity. That notion is staggeringly wrong. And it's doubly surprising to hear Rubio use that excuse, because conservatives have increasingly begun citing the First Amendment to try to avoid, say, baking cakes for LGBTQ couples or providing birth control to female employees.
So the ACLU was forced explain to a sitting U.S. senator how the First Amendment works. The group stated, "Your bill violates the core principle of the First Amendment: The government cannot dictate to its citizens which causes they can and cannot support."
Rubio has, tellingly, not responded to the ACLU.
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Jerry Iannelli is a former staff writer for Miami New Times from 2015 to March 2020. He graduated with honors from Temple University. He then earned a master's degree in journalism from Columbia University.