ACLU Says Marco Rubio Is Pushing a Free-Speech Crackdown

Update: Rubio's bill finally passed through the Senate on February 5.

The First Amendment protects Americans from being punished by the state for the things they say. The "state" part here is key: You are not being censored, for example, if you're fired from your job as a newspaper columnist because you got caught hanging out with a neo-Nazi biker gang. Quite a lot of people don't seem to understand the definition of government censorship. One of these people is apparently Sen. Marco Rubio, who last week stated that one of his first priorities in Congress this year is passing a demonstrably anti-free-speech bill. The American Civil Liberties Union this morning condemned the measure because it would "weaken the First Amendment right to boycott."

For the past few years, Rubio has been leading a bipartisan group of senators that wants the government to crack down on people and companies who boycott Israel and Israeli businesses. This is known as the Boycott, Divestment, and Sanctions — or BDS — movement. It's a form of political protest against Israel's occupation of Palestinian territories in the West Bank and Gaza Strip. The movement aims to overturn Palestinians' highly restricted access to travel, water, health care, civil rights, and labor protections. One BDS target is Caterpillar, which makes bulldozers that have been used to topple Palestinian homes in the West Bank to make way for Israeli settlements. The United Nations says such settlements are illegal.

There are certainly valid criticisms of the movement — some on the left say the movement hurts legitimate Israeli businesses without impacting the Israeli state, and, in some select areas of the world, the movement has become an anti-Semitic rallying point. But many progressive Americans support it because they disagree with the way the Israeli state deals with Palestinians. And that sure seems like something the First Amendment protects. (As the Intercept noted earlier this month, two federal courts have struck down anti-BDS laws as clear First Amendment violations.)

Rubio is instead leading a two-party coalition of lawmakers attempting to either criminalize the BDS movement or give cover to states to crack down on it. (This has long been a top priority of the ultra-powerful pro-Israel lobbying group the American Israel Public Affairs Committee, or AIPAC.) In 2017, Rubio, former Sen. Bill Nelson, and Rep. Debbie Wasserman Schultz, among many other politicians, signed on to a federal proposal that would have boycotting Israel a felony. The ACLU then sent Congress a letter stating the bill was an egregious violation of the First Amendment.

That bill stalled after the media and public cried foul. Rubio last year proposed a weaker measure (cosponsored by West Virginia's Sen. Joe Manchin, the most right-leaning Democrat in the Senate) that would give state and local governments the right to divest money and refuse to work with any companies that protest Israel. The bill also failed in the 2018 session.

But Rubio is back at it. Last Thursday, the senator announced one of his 2019 legislative priorities is to renew the anti-BDS push. This morning, the he's catching flak on Twitter — Vermont's Sen. Bernie Sanders stated online it was "absurd" that one of Republicans' first priorities in the new year is to punish "Americans who exercise their constitutional right to engage in political activity." Rubio responded by claiming his bill does not "punish" anyone — it simply gives individual states the right to punish protesters:

This is a lie.

My bill doesn’t punish any political activity. It protects the right of local & state govts that decide to no longer do business with those who boycott #Israel.

So boycotting #Israel is a constitutional right,but boycotting those participating in #BDS isn’t? https://t.co/kY9MSmBkkh

— Marco Rubio (@marcorubio) January 7, 2019

Minutes later, Rubio doubled down by scolding newly elected Rep. Rashida Tlaib, who is the child of two Palestinian immigrants and is one of the first two Muslim women elected to Congress. Tlaib is a member of the Democratic Socialists of America and supports the BDS movement. After she claimed Rubio and his compatriots have forgotten how American free-speech law works, Rubio jumped into the rhetorical gutter and called her anti-Semitic, which is an utterly offensive and baseless accusation from a guy who claims to love when politicians act "civil":

This “dual loyalty” canard is a typical anti-Semitic line#BDS isn’t about freedom & equality, it’s about destroying #Israel

And if boycotting #Israel is constitutionally protected, then boycotting companies that boycott #Israel is also constitutionally protected https://t.co/6yBM0bQB5L

— Marco Rubio (@marcorubio) January 7, 2019

In that same tweet, he took a hatchet to the First Amendment: He claimed that, because the Constitution enshrines the individual right to boycott a state like Israel, the state should then get the right to boycott people for doing so. (Pro-Israel individuals and businesses are still free to boycott pro-BDS folks like normal.) State-sponsored boycotts are still a way for the government punish political speech — and the ACLU this morning once again begged Congress not to pass Rubio's latest bill.

It’s a shame that, in the midst of a government shutdown, senators from both parties have decided that one of their first orders of business should be to sneak through a bill that would weaken the First Amendment right to boycott. https://t.co/6ppaVrGJSR

— ACLU (@ACLU) January 7, 2019

We strongly urge @MarcoRubio to reconsider this bill, which makes a mockery of the First Amendment. 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.

— ACLU (@ACLU) January 7, 2019

As the Senate prepares to vote on a bill which would encourage states to punish lawful political boycotts against Israel, we thought they needed a reminder: First Amendment rights belong to us, not the government.

So we sent all 100 senators a letter to remind them. pic.twitter.com/8GI23rkBKI

— ACLU (@ACLU) January 7, 2019

"It’s a shame that, in the midst of a government shutdown, senators from both parties have decided that one of their first orders of business should be to sneak through a bill that would weaken the First Amendment right to boycott," the group wrote on Twitter.