Senator, Oppose This Proposed Law That Would Infringe on Our Right to Criticize Israel

senator murphy stand up for bds (36K)


For years progressives have been speaking up for Palestinian rights and for years things get worse, more land theft, more settlements and more violence. So people have tried to pressure Israel through BDS (boycotts, divestment and sanctions). Congress, ever supportive of Israeli apartheid, wants to stop this. There's a Senate bill #170 we should oppose. It's a "foot in the door" bill that will tell states to go ahead and cut off relations with businesses and groups that practice BDS. Here's a great letter sent by Attorney John Fussell. His footnotes are in parentheses.

Senator Chris Murphy
136 Hart Senate Office Bldg.
Washington, D.C. 20510


Colt Gateway
120 Huyshope Avenue, Suite 401
Hartford, CT 06106


RE: Senate Bill 170 "Combating BDS ACT of 2017"

Dear Senator Murphy,

As a labor lawyer, human rights activist, and registered democrat I am so disappointed to see that Senator Blumenthal signed on with Senators Marc Rubio, Senator Ted Cruz and 14 other Senators as a co-sponsor of the above referenced bill. I am writing to ask that you oppose this legislation.

This profoundly flawed legislation supports initiatives that infringe upon our First Amendment right of dissent. As an American and supporter of BDS I have every right to oppose the ongoing human rights abuses that Israeli policies inflict upon the Palestinian people, and to do so without state action imposed to discriminate against such dissent.

BDS is a nonviolent peace and justice movement that seeks freedom, justice and equality for the people of Israel and Palestine. It is a response to a 2005 call from Palestinian civil society for boycotts to be imposed against Israel until it complies with three demands concerning its ongoing treatment of the Palestinian people. The BDS movement specifically calls for the following actions by Israel:

1. Ending its occupation and colonization of all Arab lands and dismantling the Wall;
2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality;
3. Respecting, protecting and promoting the rights of Palestine refugees to return to their homes and properties as stipulated in UN Resolution 194.

The rights to boycott and hold dissenting views are sacred threads of our democratic fabric that have served to protect the human family. The civil rights boycotts in the South were necessary strategic pressures in our nation's ongoing struggle to overcome the discriminatory vestiges of slavery. Likewise, boycott, divestment, and sanctions strategies have been heralded as tools to stop exploitation of farmworkers, end Shell Oil's violations in Nigeria, protest Nestle's marketing of infant formula in impoverished communities, and assist the international effort to topple racist South African Apartheid. The First Amendment of the United States Constitution gives citizens the right to criticize the policies of our government, as well the policies of foreign governments.

The U.S. Constitution forbids the use of state power to chill political speech. The BDS campaign is aimed at pressuring Israel to change its policies. The U.S. Supreme Court has ruled that boycotts to "bring about political, social and economic change" are a form of political speech protected by the First Amendment(1). The First Amendment protects BDS speech and conduct(2). In addition, the Fourteenth Amendment prohibits any state from abridging freedom of speech or of the press.

Legislation that denies BDS proponents state contracts, funding, or investments simply because of the content of their democratic advocacy contravenes First Amendment protections (3). There is a significant First Amendment distinction between government speaking, e.g., deciding not to invest in corporations profiting from apartheid, which is permissible, and government restricting citizens' speech merely because of the content. In the first instance, the government is simply stating its views and exercising a permissible form of marketplace participation. In the second instance, it is using state power, e.g., the threat of withdrawing funding, in order to pressure citizens to stifle or alter their message. As noted by Chief Justice Roberts in his 2013 majority opinion: "The relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program - those that specify the activities Congress wants to subsidize - and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.(4)" Senate Bill 170, if enacted only serves to support state initiatives aimed at stifling BDS in contravention of the First Amendment.

I, and many others of your constituents believe that Israel and its U.S.-based support lobby have constructed walls of despair rather than bridges of hope. They have paved a path of obstruction and destruction that has rendered the "two-state solution" (to which it pays lip service) obsolete by establishing Jewish-only settlements within the remaining 22% of historical Palestine territory, including East Jerusalem. This territory was internationally acknowledged as the future Palestinian State, but what remains are diminished Bantustan cantons rather than a contiguous landmass for the establishment of a state. Israel would never tolerate such treatment of the Jewish people as it has imposed on the Palestinian people. The lobby's uncritical support of Israel has only cemented the conflict, emboldened the Israeli right wing, and created a state-imposed apartheid-like separation of peoples. A just peace will never emerge from such conditions.

Secretary of State John Kerry observed in the waning hours of the Obama presidency that Israel's illegal settlements impede peace (5). Brent Scowcroft, former National Security Advisor to President Gerald Ford, and Thomas R. Pickering, former Undersecretary of State and Ambassador to the U.N. and Israel, recently wrote in The Washington Post: "The permanent disenfranchisement of millions of people . . . keeping the Palestinians separate and unequal . . . does not conform with American values."(6) But U.S. dollars continue to pour to Israel even as it disregards the warnings of its most loyal international supporters.

Of course, the Israel lobby disagrees with the above characterization and chooses instead to frame the ongoing tragedy in terms that blame the Palestinians for their oppression and displacement. Meanwhile, the settlements expand, the separation wall extends, and the creeping apartheid of which former President Jimmy Carter warned becomes a tragic reality (7). The BDS movement is civil society's nonviolent response to this ongoing Middle East tragedy. It is purely political speech in the tradition of Mahatma Gandhi, Martin Luther King, Jr., and Nelson Mandela.

Boycott, divestment, and sanctions as urged by the BDS movement constitute political speech as much as that of the civil rights and anti-Apartheid movements. The attempts urged by the Israel lobby to silence the BDS movement is an effort to broadly target political speech, an impermissible affront to the First Amendment.

When the Israel lobby demands legislation that utilizes the exercise of state power to demonize and/or discriminate against BDS proponents, it undermines the very First Amendment rights that protect its own speech. The Israel lobby is entitled to its opinions. It is not entitled to employ state power to discriminate against and ostracize its critics. A law that seeks to use state power to chill BDS is unconstitutional. I urge you to reject such affronts to our First Amendment Rights, and work to make certain that Senate Bill 170 does not become law. This is not complicated.

Sincerely,

John T. Fussell

(1) See, NAACP v. Clairborne Hardware Co., 485 U.S. 886, 911-912 (1982)
(2) United States Constitution, Amendments I and XIV
(3) Regan v. Taxation with Representation of Washington, 461 U.S. 540, 545 (1983), citing Perry v. Sinderman, 408 U.S. 593, 597 (1958); see also, Federal Communications Commission v. League of Women Voters, 468 U.S. 364 (1984); Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001); and Rumsfield v. Forum for Academic and Institutional Rights, 574 U.S. 47, 59 (2006).
(4) U.S. Agency for International development et al v. Alliance for Open Society International Inc. et al, U.S. Supreme Court, 133 S. Ct. 2321, 2328 (2013)
(5) Kerry Rebukes Israel, Calling Settlements a Threat to Peace - The New York Times
and in Time Magazine
(6) Speaking truth to our ally Israel - The Washington Post
(7) Carter, J., Palestine Peace Not Apartheid, Simon & Schuster (2006)


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