ACLU Comment on Senate Passage of S.1 and Combating BDS Act

WASHINGTON — The Senate today passed S.1, the Strengthening America’s Security in the Middle East Act. The legislation includes the Combating BDS Act, which would encourage states to pass unconstitutional laws that would require government contractors — including teachers, lawyers, speech pathologists, newspapers and journalists, and even students who want to judge high school debate tournaments — to certify that they are not participating in politically-motivated boycotts against Israel.

Federal courts in Arizona and Kansas recently blocked such state laws on First Amendment grounds, and 13 of the country’s most prominent constitutional scholars — including the former deans of Yale Law School and the University of Chicago Law School and the current dean of the UC Berkeley School of Law — filed a legal brief explaining that these laws violate the First Amendment.

American Civil Liberties Union Senior Legislative Counsel Kathleen Ruane issued the following statement in response to today’s vote:

“Today, the Senate chose politics over the Constitution and trampled on the First Amendment rights of all Americans. We encourage each senator who voted for this bill to read the Constitution and understand the protections it affords individuals against the unconstitutional, McCarthy-era tactics this bill endorses. We also thank each senator who stood strong in defense of the First Amendment and voted against this bill. Should the House take up similar legislation, we urge it remove the Combating BDS Act from the package of bills due to the threat it poses to all Americans’ First Amendment right to boycott.”

In cases going back to the McCarthy era — when the government required employees to swear that they were not members of the Communist Party or engaged in “subversive” advocacy — the Supreme Court has made clear that the government cannot force individuals to choose between their livelihoods and their freedom of speech.

The ACLU has actively opposed state anti-boycott bills targeting boycotts of Israel in state legislatures and in federal courts, and secured two federal court victories in Kansas and Arizona.

The organization takes no position on boycotts of Israel or of any other foreign country, but it has long defended the right to boycott, which is protected under the First Amendment.

Additional information about the bill can be found here: https://www.aclu.org/blog/free-speech/congress-threat-americans-first-am....