Today was a momentous day for our right to free speech. Our junior US Senator, Chris Van Hollen went to the floor of the Senate today and gave a 28-minute speech strongly defending the right to boycott Israel based on the First Amendment and condemning anti-BDS laws as "blatantly unconstitutional". He used many of our talking points and even mentioned my lawsuit against Maryland's Governor Larry Hogan.
This speech was particularly consequential for a number of reasons:
- Senator Van Hollen is a highly respected foreign policy voice within the Democratic party establishment.
- Senator Van Hollen is a Democrat representing Maryland. Maryland is also represented by Democratic Senator Ben Cardin who has taken a lead role in anti-BDS legislation. Such strong dissent coming from Cardin's colleague of the same state and same party is highly unusual.
- The speech was given from the floor of the US Senate giving it added heft and gravitas.
- In the speech Senator Van Hollen, an avowed opponent of BDS, predicted the continued growth of the BDS movement.
See the full transcript of Senator Van Hollen's speech below and watch it by clicking on the image above.
"Mr. President, I come to the Senate floor today with a sense of great disappointment. Disappointment in what my colleague the senior senator from Florida and the Republican leader have done with the bill before us today. Because they have taken a bill that had broad and bipartisan support -- maybe unanimous bipartisan support -- and tried to turn it into a political weapon. In the process they are doing a great disservice to the American people and to all of us who value the tradition of strong bipartisan support for our friend and ally Israel.
Mr. President, I'm a co-sponsor of the original bill: S. 2497 entitled “The United States Israel security assistance authorization Act of 2018”. It is a bill to codify the memorandum of understanding between the United States and Israel that was forged under President Obama and which provides Israel with $38 billion in security assistance over the next 10 years. This includes $33 billion in foreign military financing funds to Israel and [$]5 billion in missile defense assistance for the Iron Dome, David's Sling and Arrow 3. That's a lot of money when you consider the many priorities we have here at home and abroad. In fact more than one half of our entire global foreign military financing -- the security assistance we provide to all of our partners and allies around the world -- goes to Israel. And in my view that's an important investment. It is an important investment to support our friend and our democratic ally Israel from the many threats at faces in a very dangerous neighborhood. Threats from Iran, from Syria, from Hezbollah, from Hamas and many others. We need to make sure Israel maintains a strong military edge to defend itself. And that is why you have strong bipartisan support for that original bill.
But then the Republican leader took a bill with broad bipartisan support for Israel and added a provision designed to retaliate against American citizens who express their disagreement with certain policies of the government of Israel by participating in certain boycott activities. Specifically the senator from Florida added a provision that encourages states throughout the country to pass laws to punish American citizens who choose to protest the settlement policies of the government of Prime Minister Netanyahu by either boycotting products made in Israeli settlements in the West Bank or by not otherwise in engaging in commerce with such settlements.
Now Mr. President, I want to make this clear: while I disagree with some of the policies adopted by the Netanyahu government and Israel, I do not, I do not in any way support a boycott as a method of expressing those disagreements. But let me be equally clear: I will fiercely defend the constitutional right of any American citizen to express his or her views in such a peaceful way if they so choose -- just as I would support the right of every American to engage and other political boycotts to peacefully express their political views without fear of being punished by their government.
[The] senator from Florida and apparently the Republican leader want to use the power of the state to punish American citizens who disagree with them on this issue. It’s right here in the bill. Let me read some of the relevant parts of the bill that’s before us today: “A State may adopt and enforce measures to restrict contracting by the state for goods and services with any entity that knowingly engages in boycott activity intended to limit commercial relations with Israel, a person's doing business in Israel, or Israeli control territories for the purposes of imposing policy positions on the government of Israel”
So how does this new provision encourage states to retaliate against American citizens? It’s pretty clear from that language. It encourages states to pass laws to deny citizens the right to bid on any state contract unless… unless those citizens sign an oath stating that they do not or will not engage in any boycott of Israel -- including any boycott related to the sale or purchase of goods or services from Israeli settlements in the West Bank. Think about that. Let's say you're an American citizen living in my state of Maryland. Let's say you own a computer consulting business and you happen to disagree with Israeli Prime Minister Netanyahu’s government policies of expanding settlements on the West Bank, near the city of Bethlehem. And you want to express your opposition to that policy. And let's say you choose choose to protest that policy by deciding that you will not provide your services to businesses located in those settlements on the West Bank. If you did that, you would be prohibited by the state laws from bidding on a contract to provide computer consulting services to a Maryland state agency. Think about that. You may run the best computer consulting business in the state of Maryland. But if you don't sign an oath… sign an oath renouncing your right to engage in a boycott you cannot win any contract with the state. In other words even if you are the best, most qualified bidder you would be disqualified from winning that state contract because of your peaceful political activity having nothing to do... nothing to do with your ability to fulfill the contract. Does that sound unconstitutional? Yes, it is blatantly unconstitutional. And guess what? That's what two federal courts have already concluded about state laws that already do what Senator Rubio's bill is proposing.
I'm going to review those decisions in a moment. But before I do let me respond to the very flimsy defense [the] senior senator from Florida and others have offered to try to justify this effort to punish free expression. Mr. President, here's what Senator Rubio tweeted out: “Opposition to our bill isn't about free speech. Companies are free to boycott Israel but state and local governments should be free to end contracts with companies that do”. Mr. President, this reflects a profound, profound misunderstanding of the First Amendment. It turns the First Amendment on its head. It's like saying to our fellow Americans: You're free to peacefully express yourself however you want. But the government is then free to use the power of the state to punish you for doing so. You're free to express your political opinions but if we don't like what you say, the state is free to pass laws to prevent you from doing any business with the state. Mr. President, that is state-sponsored discrimination against disfavored political expression. I would remind my colleagues that the First Amendment is not designed to protect government from its citizens. It is designed to protect citizens who may engage in unpopular speech from retaliation by the government. What if a state passed a law to penalize gun control advocates who boycotted stores that sold semi-automatic weapons? What if a state retaliated against anti-abortion activist who boycotted health clinics that provide abortion services? We would all agree that was blatantly unconstitutional. And so Senator Rubio's proposal and the proposal advanced by the Republican leader is a textbook example of why we have a First Amendment.
I've heard others defend this measure by saying “It is simply a law to boycott the boycotters”. It’s a cute slogan -- but again shows a stunning ignorance of the First Amendment. Yes, any of us as individuals can always decide to boycott those whose boycotts we disagree with. Each of us as individuals is free to boycott those businesses who choose to boycott Israeli settlements in the West Bank. But that's not what this bill does. This bill calls upon states to use the power of the state... to use the power of government to punish peaceful political actions that we don't like. Again, patently unconstitutional.
Mr. President, that is the conclusion reached by to federal courts that struck down the kind of state laws that Senator Rubio and other seek to promote. In Kansas a federal judge blocked the enforcement of a state law requiring any state contractor to submit a written certification that they are “not currently engaged in a boycott of Israel”. in the Kansas case a woman who served as a public school math teacher for nine years was barred from participating in a state-sponsored teacher training program because she refused to sign a certification that she wasn't participating in a boycott of Israel. The court found that the anti-boycott certification requirement was designed to suppress political speech and according to the court was “plainly unconstitutional”. In his opinion the judge wrote “the Supreme Court has held the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law”. That’s the federal district court.
In Arizona a federal court blocked a state law requiring contractors to certify that they will not boycott Israel, finding again that the law violates the right of free speech. In this case, an attorney contracted with the Arizona state government to provide legal services to help individuals in prison. Because of his political views, the attorney refused to purchase goods from businesses supporting Israeli settlements in the West Bank. But he would not submit to a written certification that he wasn't boycotting Israel. Because he would not, he was barred from contracting with the state to provide legal services. Mr President, in this Arizona case the court held “a restriction on one's ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in a boycott. The type of collective action targeted by the law specifically implicates the rights of assembly and association that Americans and Arizonans used to bring about political social and economic change” from the court
Mr. President, their are a number of other challenges to laws requiring government contractors to certify their not boycotting Israel or Israeli settlements on the grounds that they violate Americans’ fundamental right to free speech. A right that Americans have even when their speech is not supported by a majority of us. That's the whole purpose of the First Amendment. Mr. President, in Texas there are two pending First Amendment challenges to a law requiring state contractors to certify they will not boycott Israel or it’s settlements. In the first Texas lawsuit, four individuals were required to choose between signing a certification that they're not participating in a peaceful boycott or losing income and other professional opportunities. These individuals include a freelance writer who lost two service contracts from the University of Houston, include[s] a reporter who was forced to sign the certification against his conscience in order to keep his job, includes a PhD candidate at Rice University who was forced to forfeit payment for judging at a debate tournament and it prevented a student at Texas State University to forgo opportunities to judge high school debate tournaments.
In the second lawsuit, a Texas speech pathologist who'd work with developmentally disabled autistic and speech-impaired Elementary School students for nine years was fired… was fired because she refused to sign an addendum to her contract renewal saying she would not boycott Israel or Israeli settlements. Mr. President, in my home state of Maryland a software engineer is challenging an executive order requiring contractors to certify in writing that they're not boycotting Israel or its settlements. In that case the individual was barred from bidding on government software program contracts because he would not sign such a certification. Mr. President, these laws are blatantly unconstitutional.
Let me speak briefly to a recent court decision in Arkansas in which a federal district court judge ruled in favor of a state law prohibiting Arkansas from contracting with or investing in individuals or firms that boycott Israel or its settlements. This district court decision is destined for the dustbin of history. I'm not sure any Senator on either side of the aisle wants to be associated with its holding. It concludes that a boycott “is not speech inherently expressive activity or subject to constitutional protection”. The banner is right there on page 9 of the judge's opinion and it reads, I quote “a boycott is neither speech nor inherently expressive conduct”. In other words -- according to that district judge -- states can pass laws banning or penalizing boycotts that they don't like! Years ago, (and it was many years ago Mr. President) as a college student, I was active in the movement to get companies to divest from South Africa and boycotting companies that do business with the apartheid regime in South Africa. Under the Arkansas court decision, a state could pass a law that would ban that conduct -- or would at least penalize me if I wanted to do business with the state as a sole proprietor and sought state contracts. Mr. President, there's no doubt that the Arkansas decision will be overturned. The Supreme Court explicitly held in the case of the NAACP vs Claiborne Hardware that the first amendment protects the right to participate in a boycott for political purposes. The judge in the Arkansas case attempts to narrow that NAACP holding in a way that is clearly inconsistent with First Amendment protections. I urge my colleagues on both sides of the aisle to read all three federal district court decisions from Kansas, Arizona and Arkansas.
Now as I said earlier, I do not support the boycott of Israel as a means of pressing the Netanyahu government to change some of it’s policies. There are much better ways we have to try to encourage our friend and ally to change some of the policies that [we] disagree with. But Mr. President, here's what I predict: I predict that the boycott movement will continue to grow for a number of reasons.
At the top of that list is the fact that the Trump administration's actions and in-action are adding oxygen to the boycott movement. To start, the Trump Administration has abandoned any pretense… any pretense of trying to prevent the expansion of Israeli settlements in new parts of the West Bank. There has been a big jump in the number of tenders and settlement plans since President Trump took office. In fact our Ambassador there, Ambassador Friedman, has been a vocal cheerleader for additional settlements in new areas on the West Bank. In doing so, the Trump Administration has abandoned what has been a long-held bipartisan position of the United States government. Here are a few statements from presidents from both parties over the last 40 years: President Ronald Reagan [in] 1982 said: “settlement activity is in no way necessary for the security of Israel and only diminishes the confidence of the Arabs at a final outcome can be freely and fairly negotiated”. President H.W. Bush in 1990 said “the foreign policy of the United States says we do not believe there should be new settlements in the West Bank or in East Jerusalem”. President Clinton in 2001 said “The settlement enterprise and building bypass roads in the heart of what they already know will one day be part of a Palestinian state is inconsistent with the Oslo commitment that both sides negotiate a compromise”. President George W. Bush [in] 2002 said “Israeli settlement activity in occupied territories must stop and the occupation must end through withdrawal to secure and recognize boundaries”. And finally President Obama in 2009 said “the United States does not accept the legitimacy of continued Israeli settlements. This construction violate previous agreements and undermines efforts to achieve peace it is time for these settlements to stop”. So Mr. President, there you have a continuous line of bipartisan Presidents -- Republicans and Democrats -- expressing US policy on the issue of settlements. Mr. President the provision before us today in this bill directly contradicts this long stated US policy by drawing no distinction between someone who is boycotting businesses located in the state of Israel and someone boycotting businesses located in settlements in the territories. In other words the provision before us in the state laws that it promotes supports the same penalty for those who boycott commerce with a business in Tel Aviv as it does those who boycott commerce with businesses in the settlements -- including outposts that may be illegal under even Israeli law. So this provision before us erases an important distinction in American policy that has been endorsed by presidents of both parties. One of the reasons for discouraging settlements and outposts in new areas is to preserve the option of a Two-State Solution. An option that has previously been supported by presidents of both parties as well as pro-israel groups including AIPAC, J-Street and others. It is a demographic reality that in order to ensure a Jewish state that is democratic and provides equal rights to all its citizens, there must be a Two-State Solution. Now present such a solution should come about through a negotiated settlement between the parties -- between Israelis and the Palestinians. And we all know that dysfunction and obstruction on the Palestinian side has been one obstacle to reaching an agreement. But that does not justify changing the status quo on the ground by adding settlements in new areas that will make a two-state solution impossible.
Second, the Trump Administration under the guidance of the president's designated Middle East senior advisor, his son-in-law, Jared Kushner has embarked on an undisguised effort to crush the Palestinians by revoking all us humanitarian assistance. Here we are Mr. President authorizing $38 billion for US military support for Israel -- something I strongly support and am a co-sponsor of -- but at the same time the Trump Administration has eliminated... eliminated humanitarian and other assistance to help the Palestinian people, many of whom are living in horrible conditions. The Trump Administration has eliminated assistance that helps provide medical care, clean water and food to hundreds of thousands of vulnerable Palestinian children and families. Much of this assistance is provided by organizations like Catholic Relief Services and the Lutheran World Federation. President Trump has also eliminated $25 million in US support to a network of six hospitals in East Jerusalem -- support the Congress explicitly protected under the Taylor Force Act. In doing this he gutted funding for the main hospitals providing cancer treatment for patients in the West Bank and Gaza and kidney dialysis for children. These hospitals include Lutheran Augusta Victoria Hospital, the Anglican St John of Jerusalem Eye Hospital and the Catholic Saint Joseph Hospital. American founded institutions that fall under our American Schools and Hospitals Abroad program. The Trump Administration has eliminated support for those programs. But Mr. President, the the effort to crush the Palestinians into submitting to a one-sided agreement will never work. President Trump & Jared Kushner apparently think this is just another real estate deal, where you turn off the water and the electricity to force your tenants out. Instead these actions by the Trump Administration will only add fuel to the boycott movement because many people will see no other vehicle for expressing their views.
And finally to the senior senator from Florida and others supporting a provision nothing... nothing will motivate Americans to exercise their rights more than efforts to suppress them. Trying to suppress Free Speech -- even unpopular speech, even conduct that we don't support here and I don't support -- that will only add momentum.
So Mr. President, I’ll end where I started. It's a really shameful and disappointing day when the sponsors of this legislation took a bill demonstrating strong bipartisan support for Israel -- for our friends and allies who share a commitment to democracy and share other values we hold dear -- that some Senators took that bill and used it as an attack on the constitutional rights of American citizens who may want to peacefully demonstrate their opposition to some of the Netanyahu government policy, not in the way you Mr. President would choose, not in the way that I would choose, but in a way they have a right to do as American citizens. So when making these changes to the bill the sponsors are sabotaging what was a bipartisan bill to support our friend and ally Israel -- and in the process... in the process strangling strengthening the very boycott movement that we seek to oppose. That hurts Israel. That hurts the United States. And Mr. President this is a really sad day in the United States Senate when we took something that we all agreed on and decided to use it to attack the constitutional rights of American citizens we may disagree with. And I'm sorry that is come to this point and I hope that my colleagues will think about this as we move forward in this debate. And I suggest the absence of a quorum."