Manar Waheed, Legislative and Advocacy Counsel, ACLU
& Brian Hauss, Staff Attorney, ACLU Speech, Privacy, and Technology Project

Members of Congress last month introduced the “Anti-Semitism Awareness Act.” The bill purports to address a real problem: According to the FBI, incidents of hate crimes motivated by anti-Jewish bias have significantly increased in recent years.

But anti-Semitic harassment is already illegal under federal law. The new bill does not change that fact, but its overbreadth makes it likely that it will instead silence criticism of Israel that is protected by the First Amendment.

The proposed legislation, for example, defines speech that applies a “double standard for Israel,” or denies “the Jewish people their right to self-determination,” as evidence of anti-Semitism. It also directs the Department of Education to consider such speech in its investigations, which could result in a loss of federal funding for schools. On Monday, the ACLU sent a letter to Congress opposing the bill. 

The ACLU does not take a position on the Israeli-Palestinian conflict, but it does take firm positions on efforts to stifle free speech. The threat of a federal investigation and subsequent loss of government funding will likely scare schools into suppressing speech critical of Israel. Students and teachers who criticize the Israeli government or advocate for Palestinian rights are the obvious targets. But freedom of speech will be the loser.

The bill is part of a disturbing surge of government-led attempts to suppress the speech of people on only one side of the Israel-Palestine debate. The trend manifests on college campuses, in state contracts, and even in bills to change federal criminal law, but the impact is the same: Those who seek to protest, boycott, or otherwise criticize the Israeli government are being silenced.

On college campuses, a growing number of students and teachers have been disciplined or threatened with discipline for engaging in actions in support of Palestinian rights or in opposition to Israeli policies. Student groups like Students for Justice in Palestine have been sanctioned for legitimate protests and even banned. Such attacks on free speech are likely to escalate now that the Trump administration has nominated Kenneth Marcus, who has led numerous campaigns to suppress student speech critical of Israel, to lead the Department of Education’s Office of Civil Rights. Marcus has  urged  people to file complaints of anti-Semitism with the Department of Education in response to criticism of Israel, arguing that the mere filing of such complaints, regardless of their outcome or merit, will pressure schools to suppress anti-Israeli criticism.

Outside campus life, campaigns aimed at excluding critics of Israel from participating in public events are mounting, often with support of publicly funded institutions. A Chicago-area public library temporarily cancelled a talk about a book titled “The Battle for Justice in Palestine,” before reconsidering its decision. The Missouri History Museum cancelled a community event titled “From Ferguson to Ayotzinapa to Palestine,” after organizers refused to remove Palestinian panelists.

In Nassau County, New York, local officials tried to stop a local arena from featuring a performance by Roger Waters of Pink Floyd because he advocates for a boycott of Israel. And, earlier this year, Florida officials attempted to prevent Lorde from performing in Miami and Tampa after she cancelled a concert in Tel Aviv. (All three shows went on.)

State legislatures have joined the effort. The South Carolina Legislature recently introduced budget language forcing public colleges and universities to use a definition that equates criticism of Israel with anti-Semitism. The definition is almost identical to the language used in the federal Anti-Semitism Awareness Act introduced in Congress. More than 100 other bills penalizing boycotts of Israel have been introduced in state and local legislatures in the last four years, and 24 states have enacted legislation targeting the boycott movement. Congress, too, is currently considering a bill that would make it a crime to participate in certain boycotts of Israel.

Many of these efforts clearly don’t withstand legal scrutiny. Earlier this year, in response to an ACLU lawsuit, a federal court in Kansas blocked that state’s anti-boycott law, recognizing that political boycotts of Israel are constitutionally protected and that the state can’t suppress or undermine them. The ACLU is challenging a similar law in Arizona, on behalf of a lawyer who was asked to certify that he doesn’t boycott Israel in order to renew his law firm’s contract to provide legal services to incarcerated people. Fourteen other states have laws similar to those in Kansas and Arizona. These laws have rightly attracted scorn and ridicule — most famously in Dickinson, Texas, which required Hurricane Harvey victims to pledge not to boycott Israel as a condition of receiving relief aid.

In 1943, Supreme Court Justice Robert H. Jackson famously wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” In other words: The First Amendment stands as a bulwark against government attempts to suppress dissent.

These efforts to  censor criticism of the Israeli government and advocacy for Palestinian rights do a disservice to the real problem of anti-Semitism in the United States. Addressing anti-Semitism is important and necessary, particularly in the current climate, but it does not require silencing constitutionally protected protest or expression.

UPDATE: After the Supreme Court ruling this morning, a federal appeals court on Monday night rejected the Trump administration's request to continue its policy of prohibiting immigrant minors from accessing abortion care while its appeal is pending. The text has been changed to reflect breaking news. 

There has been a lot of confusion about Monday’s Supreme Court decision in the Jane Doe case, Azar v. Garza, but here are two big takeaways to clear things up.

First, the ruling was limited to the case of one young woman, who already had her abortion. There is still a court order in place that prohibits the government from obstructing or interfering with unaccompanied minors’ access to abortion, and today’s decision does not change that. Second, the Supreme Court rejected the government’s baseless request to find that my colleagues and I acted unethically. 

As to the first point, it is critically important to understand what the order does and does not do. It does vacate Jane Doe’s individual victory in the court of appeals that paved the way for her to obtain an abortion. But Jane Doe has already obtained her abortion. The court, therefore, ruled that Jane Doe’s individual claim related to abortion access is now moot. 

The court’s ruling does not affect the ongoing case in any way. It doesn’t diminish the district court’s order that initially blocked the government’s cruel policy for a class of pregnant minors in the government’s custody. It also does not say anything about the constitutional question presented in the underlying case, namely whether the government can violate decades of Supreme Court precedent by banning abortion for unaccompanied minors.

The district court issued an order on March 30, 2018, allowing the case to proceed as a class action and issued a preliminary injunction blocking the government’s no-abortion policy. The government appealed that decision, and it also asked for the court of appeals to allow the policy to go back into effect while the appeal is pending. The court of appeals denied that request this evening, reaffirming that unaccompanied minors must have access to abortion. The briefing on appeal will happen during the summer, and oral argument will take place in September. 

The end goal, in the long run, is to strike down the government’s policy once and for all. 

As to the second issue, the court rejected the government’s request to impose discipline on my colleagues and me for representing our client to the best of our abilities. This is a relief.  The government’s ethics claims have always been baseless, and they are an attempt to intimidate us.

The government continues to do everything in its power to hold young women hostage to prevent them accessing abortion, and we will do everything we can to stop them.

In the Masterpiece Cakeshop case, the Supreme Court on Monday ruled for a bakery that had refused to sell a wedding cake to a same-sex couple. It did so on grounds that are specific to this particular case and will have little to no applicability to future cases. The opinion is full of reaffirmations of our country’s longstanding rule that states can bar businesses that are open to the public from turning customers away because of who they are. 

The case involves Dave Mullins and Charlie Craig, a same-sex couple who went to the Masterpiece Cakeshop in Denver in search of a cake for their wedding reception. When the bakery refused to sell Dave and Charlie a wedding cake because they’re gay, the couple sued under Colorado’s longstanding nondiscrimination law. The bakery claimed that the Constitution’s protections of free speech and freedom of religion gave it the right to discriminate and to override the state’s civil rights law. The Colorado Civil Rights Commission ruled against the bakery, and a state appeals court upheld its decision. 

Tell Congress to pass the Equality Act 

In reversing the lower court’s ruling, the Supreme Court focused on how this particular case was handled by the commission, which decides cases under Colorado’s nondiscrimination law. The court raised concerns about comments from some of the Colorado commissioners that they believed revealed anti-religion bias. Because of that bias, the court held that the bakery wasn’t treated fairly when the commission decided the discrimination claim. 

But — despite arguments from the Trump administration and other opponents of LGBT equality — the court didn’t decide that any business has a right to discriminate against customers because of who they are. Instead, the court’s decision affirms again and again that our nation’s laws against discrimination are essential to maintaining America’s open society and that states can pass and enforce those laws, including in the context of LGBT people. 

First, the court reaffirmed that lesbian, gay, and bisexual people are entitled to equal dignity. The ruling makes clear that it “is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” The decision continues: 

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” 

The court also reaffirmed its longstanding rule that states can prevent the harms of discrimination. It noted that while the “religious and philosophical objections” of business owners: 

“are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

The court further recognized the danger of free speech and freedom of religion claims that the bakery advanced in this case, stating that:

“any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say­ing ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.” 

The decision also recognizes that adopting a rule — as advocated by the bakery — that would allow businesses to turn gay people away carries a significant risk of harm. It outlines its own fear that “a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons.” This would result, the decision continues, “in a community-wide stigma in­consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” 

Significantly, the court cited an earlier case, Newman v. Piggie Park Enterprises, Inc., where it rejected precisely the kind of claims that the bakery made here. Piggie Park was a chain of barbeque restaurants in Columbia, South Carolina, that claimed its religion required it to refuse to serve Black customers alongside white ones and that applying the 1964 Civil Rights Act would violate its religious freedom. The courts rejected that argument, with the Supreme Court calling it “frivolous.” 

The court on Monday ruled for the bakery because it “was entitled to the neutral and respectful consideration of [its] claims in all the circumstances of the case,” and the justices in the majority believed the bakery didn’t receive that basic fairness. The court said that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

All of us deserve a dispassionate evaluation of our claims, either when we face discrimination or are accused of it. Those are principles we can all agree on. 

Monday’s decision gives a very narrow victory to the bakery. But the court has clearly signaled that the broader rule the bakery was seeking here — a constitutional right to discriminate and turn customers away because of who they are — is not in keeping with American constitutional tradition. 

There are many other cases in the pipeline that may soon give the court the opportunities to sort through the legal issues at the center of the Masterpiece Cakeshop case. One is Ingersoll v. Arlene’s Flowers, in which a florist shop refused to sell flowers to a gay couple for their wedding. The Washington state Supreme Court ruled unanimously that the shop had no constitutional right to turn the couple away, and a petition for review by the U.S. Supreme Court remains pending. 

In the meantime, Congress should pass the Equality Act, which would update our civil rights laws to provide all people with full protection from discrimination. At the ACLU, we will continue working to ensure that the Supreme Court strikes the right balance between equality and the freedoms of speech and religion. In the Masterpiece Cakeshop decision, the court reaffirmed that the latter should not be used to undermine the former.