Megaphones and picnics — Ron Wyden’s limited ideas on the right to free speech

Activism
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Palestine activists descended on Senator Ron Wyden’s August 5 town hall in Portland to take him to task for his support of S.720, the Israel Anti-Boycott Act, which expands violations to include working with or using information from the United Nations and the EU to work on boycotts of Israel. Punishments include criminal fines up to $1 million and 20 years in Prison. The ACLU, Jewish Voice for Peace, the US Campaign for Palestinian Rights, and even J Street have come out in opposition to this draconian threat to free speech and the right to boycott.

During my years of activism, I have had a few times when I have had what I have called “mountain top moments” where our organizing and efforts have paid off in spades. This was one of those moments.

Our success was due to years of Palestinian activism in Oregon, a bit of haphazard organizing for this event, and some good old-fashioned luck.

We only had a few days upon learning of the town hall to prepare. We sent the word out to our lists, and have the privilege of having many longtime supporters of Palestine who appear at moments like this to show their support. We had about 20 people show up. We got signage from the US Campaign for Palestinian Rights  proclaiming “I Support Palestinian Rights.”

People were given lottery tickets and those whose number was chosen were allowed to speak to the Senator. We met outside the venue and agreed that everyone would get lottery tickets to speak and those who didn’t want to speak would give their tickets to those who would. We were able to get four different people to ask questions of Wyden about this bill and received good applause and support from the audience. The lineup couldn’t have been better timed or better planned.

One thing we failed to do was to provide literature to hand out to the attendees beforehand about our issue. As luck would have it, a local ISO activist showed up with copies of an article in the Socialist Worker by local activist Sarah Levy. He handed them out to everyone going into the venue and I’m sure that was a big help in gaining audience understanding and support. Sarah Levy, by the way, gained notoriety by drawing “Bloody Trump” in response to Trump’s misogynistic comments about former Fox News moderator Megyn Kelly.

I was able to ask about the third question of the day because one of our supporters, to laughter, ceded her time to me when her number was called. Wyden allowed it saying, “you guys are like the Senate, you yield to each other.” I could tell this was going to be a good day.

I approached the front, holding my Palestine sign. Wyden couldn’t see out in the darkened hall, so he asked me what my sign said. I said, “I Support Palestinian Human Rights” which got good applause, so much so that Wyden didn’t hear me and asked me to repeat. I did, but the applause drowned out my response, so I approached him holding the sign and he just said, “Got it.”

In answering me, Wyden gave a shocking and incredibly limited definition of what boycotts as an expression of free speech, are:

“You can post any criticism of Israel on your Facebook page, write an op-ed about your views for the newspaper, walk up and down the street with a megaphone, organize a big picnic in the back yard … So that’s our take, and we’ve been talking to scholars about that — that you can do those things.”

Rather than a strong and expansive view of free speech, Wyden has taken upon himself to define what we can do under our first amendment rights, and it is very limited, ineffectual and lame, but for him, “there is a line to be drawn.” Picnics in the backyard seem to be the pinnacle of free speech for Wyden. This is our new bill of rights according to Senator Wyden.

His description of what is allowable for boycotts does not describe any actual, effective, or historical boycott movement that has ever happened, including what is happening today in opposition to Israel’s illegitimate policies against Palestinians. Imagine that the women’s liberation movement was relegated to appropriate back yard barbeques? Imagine if the people organizing the Montgomery Bus Boycott were limited to posting on Facebook. Imagine if the boycott campaign against South African Apartheid amounted to writing an op-ed and carrying a megaphone? These deep expressions of free speech and activism are absent from Wyden’s circumscribed description. He says he has talked to unnamed “scholars’ to produce this playschool version of rights, much like Trump has talked to “my generals” about transgender people in the military. Sad!

The next question immediately following was from Ned Rosch of JVP and Occupation-Free Portland. He mentioned Senator Gillibrand’s withdrawal of her sponsorship of the bill. Wyden responded,

“In fact, the bill builds upon existing law, nobody I know has been able to furnish even one example of a criminal penalty. So, again, happy to hold the bill is considered in September or something like that. But let’s stay at it, particularly, should you choose to. I answered about all the things that speak to the First Amendment rights that I believe are fully protected and nobody has said, gee that’s wrong.”

He kept repeating this notion: nobody has ever gone to jail and that we are somehow responsible for proving someone has. It is a slippery out, because he does not say there are no criminal penalties and he does not mention that the bill is greatly expanding what can be construed as a violation. He is well aware of the use of slippery language as his discussion that day about Jared Kushner (see transcript below) reveals. He also does not say if anyone has been charged under the existing law or if there were any fines imposed. Even without jail time, certainly a $250,000 fine much less $1 million would be daunting to most activists. The idea that this bill is being considered with the notion that nobody will be targeted is ridiculous. Should the bill pass, Jeff Sessions (or someone like him) would be the lead prosecutor.

A short while later, a young man who I didn’t recognize asked Wyden a couple of good follow up questions concerning the impetus for the bill. Wyden acknowledged that the reason for the bill was the growth of the BDS movement. Of course, one reason for the growth of BDS is the fact that our government, including our representatives like Senator Wyden, have refused to uphold our values of freedom, equality, and human rights with respect to Palestinians. But it does answer the question: since boycott is a First Amendment right as upheld by the Supreme Court, then the purpose of this bill is to attempt to limit a First Amendment right!

Wyden referred repeatedly to the Arab League boycott which has absolutely nothing to do with today’s grassroots BDS movement. He fails to mention that the bill is expanding violations past that 40 year old proscription to include the United Nations and the EU and any foreign government. I suspect that saying you are against the United Nations and the EU doesn’t play well with progressive audiences. Several people came up to me and said that his continued mentioning of the “Arab League” sounded (a little?) racist. Someone else sent me a note during the meeting that said, “If conspiring with a ‘foreign government’ regarding BDS matters is illegal, why are AIPAC and the Israel lobby . . . not included?”

Finally, Rod Such, a member of JVP and Occupation-Free Portland, was able to use his time to pointedly challenge the things Wyden had said in response to the other questions. Wyden reiterated that he had listed the things an INDIVIDUAL (note: not a movement) can do sitting right there as armchair activists, but he harped repeatedly on the fact that nobody can show him that someone has gone to jail. The crowd was getting restive at that point and Wyden got no applause.

Wyden mentioned that he supported the two-state solution, which was all he said about the matter. He didn’t acknowledge the expanding settlements, the siege of Gaza, or anything about Palestinian suffering or the denial of their rights. His comment garnered some applause (by some J Street folks) and some boos. The boos were undoubtedly from folks who believe that the two-state solution is probably impossible at this point in time. Additionally, people understand that Wyden is simply saying nice words in polite company and that Wyden has done absolutely nothing to further a just two-state solution and has served to protect Israel from pressure at every opportunity.

One thing that needs to be understood about Wyden: the Israel lobby is not pressuring him. He is part of the lobby and a true believer. I don’t know if it is his primary interest, but he is always there to support Israel and has been consistently one of the top recipients of pro-Israel PAC money, according to OpenSecrets.

Wyden dissembled on the true nature and impact of this bill and was careful not to acknowledge Palestinian suffering. He also wanted to define for us what our freedoms are.

Wyden’s support for this bill reveals that, when it comes to Israel, our Senator wants to severely limit our free speech rights by using legislation in an effort to punish effective activism. This is not a principled position for a progressive politician and self-described advocate of the First Amendment.

Transcripts.

Peter Miller’s Question and Wyden’s Response:

Peter: I am so grateful to you for standing up to Trump and his hateful agenda and for fighting to keep the Affordable Care Act I want to raise a different issue.

You recently signed on as a co-sponsor of the Anti-Israel Boycott Act, Senate Bill 720, a bill that the ACLU wrote would “punish individuals for no reason other than their political beliefs.”
The aim of this bill, it greatly expands the protection of illegal settlements in the West Bank that are harming Palestinians and would make it illegal for companies to boycott them! Violations could be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison according to existing legislative language.

At a time when Trump has declared that he is in “a running war with the media,” and attacks those who criticize his policies, Congress, as you know, must be vigilant in upholding the First Amendment rights. But in this case, you don’t seem to be. I would like you to uphold my First Amendment rights by removing your name as a co-sponsor of Senate 720.
[large applause and cheers]

Response from Wyden:
This is exactly what town hall meetings are for – is to get people’s ideas, exchange differing viewpoints when I heard you talking about Palestinian Rights I wasn’t sure whether you where you talking about BDS or Palestinian Rights. I happen to have been one of the strongest supporters of the two state solution [boos and applause] which I think is been? I think it’s been of real interest to Palestinian community over the years [Someone yells: get to the point! Wyden: I’m going to!]

So with respect to the BDS bill, I think it might be helpful to dig into the issues to talk about what you could do if this bill got passed and what you couldn’t do. And its something that I’ve spent lot of time already, I mean I keep talking to folks at home about it.

I’m a son of a journalist. I think there isn’t anybody in the Congress, sometimes people say even looking back at past congresses, who spends more time on first amendment issues and civil liberty issues than I have. I think they extraordinarily important.

I put a lot of time and effort into them. [applause]

Now, as we have read the bill it means that anybody in this audience can boycott Israeli products or say they intend to boycott Israeli products. The Bill doesn’t prevent or punish anybody for making those choices.

So if you want to pull your cell phone at this meeting or another town hall if the bill passes, you are completely free to tweet about supporting the BDS program you can post any criticism of Israel on your Facebook page, write an op-ed about your views for a newspaper. You can walk up and down the street with a megaphone, organize a group picnic and in your backyard talk about all the things that you got you upset.

So that’s our take what we’ve been talking to scholars that you [?] can do those things.

What you can’t do, under the bill, and the bill is 40 year long is that you can’t work with the foreign government to promote the boycott divest sanction legislation in that sense it builds on a 40 year law. So, I appreciate the question and know folks have come to talk about that and we can come back to that in the course of the afternoon.

But as we reach out and listen this is by no means the last word on this. So that’s why we have town meetings to get views, that’s my take. I’ve spent a lot of time discussing this and talking to people on both sides and as I say as a son of a journalist, I’m co-chair of the whistleblowers caucus and that’s the first thing we started talking about was what happened yesterday. I do not take a back seat to ANYBODY in terms of fighting for first amendment. [applause]

Ned Rosch’s Question and Wyden’s Response:

Ned: Thank you Senator Wyden, I would like to follow up on the question that was just asked. I believe I speak for many of your constituents who concerned about human rights–including Palestinian human rights AND also about First Amendment protections of free speech.

The bill that you are referring to has been interpreted by Constitutional experts such as the ACLU, as being unconstitutional and chilling of free speech. Whatever your opinion on the nonviolent international BDS movement as a tool for achieving human rights and pressuring Israel to abide by international law, how can you possibly support a bill that’s so questionable in its constitutionality?

I speak for many when I say that we urge you to do as Sen. Kirsten Gillibrand [applause starts] has just done and remove your endorsement of this bill that threatens free speech.
[applause]

Wyden’s Response:
I read Senator Gillibrand’s statement, she said she didn’t support it in its current form. She didn’t say she opposed it altogether.
[Loud short outbusrt]
She had both sides kind of coming back on it (?) I’m not sure there is a lot I can add to what I’ve said. am happy to continue these discussions.
I number of people said that there are criminal penalties [“right”]. Well, I’ve asked people to provide me information (?) In fact, the bill builds upon existing law, nobody I know has been able to furnish even one example of a criminal penalty.
So, again, happy to hold the bill is considered in September or something like that. But let’s stay at it, particularly, should you choose to. I answered about all the things that speak to the first amendment rights that I believe are fully protected and nobody has said, gee that’s wrong.
So, [garbeled and objections from audience].

The ACLU, and by the way I am one of the members of congress who closely works with them than anyone else. The ACLU obviously opposed to the bill, they have not even said that what I described [is a violation?]

Unknown man’s Question and Wyden’s Response:

Questioner: I just had one quick follow up on the Israeli boycott situation – where I’m uncertain – I don’t know kind of what the meaning is – if you’re working with a foreign government as far as the boycott goes

Wyden: Say like the Arab League – I mean if you’re working with a foreign government that’s essentially what we’ve restricted in the past and just to kind of clarify quickly — I’ve gotten asked about it — nobody has ever gone to jail.

Questioner: So, what’s the impetus behind the bill? Like what sorts of behaviors were occurring that brought this bill to be – that merited – its existence?

Wyden: I believe the concern is that the boycott movement has grown. I happen to believe that there is a line to be drawn between protecting the rights of individuals. That’s why I describe all the things that I’ve researched that a person can do that speak to your first amendment rights. I think that’s different than keeping part of a boycott with the Arab League. That’s the distinction.”

Here is what Wyden said about Jared Kushner’s testimony about his business involved with the Russians:

Wyden: “The key line is his (Jared’s) public statement was, I remember verbatim, he said, “I do not rely on the Russians for financing my businesses. “ The word ‘rely’ is a subjective word. I’m a lawyer in name only, the reason she married me was because I wasn’t a good lawyer. But I knew what that was all about. He didn’t say “I have no business dealings with the Russians.” He didn’t say “I never had business dealings with the Russians.” He used a very clever word. He had some really good lawyering. Whoever did that lawyering did get enough to put a couple of kids through school. Very clever. And so I started pushing back on that.”

Rod Such’s Question and Wyden’s Response:

Rod: I’d like to urge you to do some more investigation about the Israel Anti-Boycott Act. Because, in fact, what the ACLU tells us directly contradicts what you said on the stage now.
For example, you stated that the act only applies to foreign governments but that’s not true. If you read the bill, it says international governmental organizations, which includes groups like the United Nations Human Rights Council which is specifically called out in the bill.
That means that if the United Nations Human Rights Council calls for a boycott of illegal Israeli settlements and I happen to agree with that, I would face criminal penalties up to 20 years in prison and a maximum fine of one million dollars, that is not acceptable.

And it is not just the ACLU which says that (?) it is also MoveOn, its J Street, its Jewish Voice for Peace, its a number of organizations who see this, as the ACLU put it, as a direct violation of the first Amendment.
[applause]
I am urging you to look carefully at the actual wording of this legislation.
It amends the export act, which previously applied only to corporations.
Corporations cannot be sent to prison. It amends that act by saying US Persons, US Persons is legal term for individuals and corporations.

So individual rights to free speech are jeopardized by this bill. And I urge you to withdraw your sponsorship of it.
[big applause and cheers]

Wyden:
First, we have asked repeatedly from all sources for information about how anyone has faced JAIL, criminal penalties like JAIL and no one has ever given us one example.
[Shouts from the audience]
Whoa, whoa, people, this is a 40 year long of enforcing (?) Let me just extend the invitation, if you’ve got an example of how somebody was put in jail under this, that would be important.
Rod: Well, that was the past act, this is not a law yet, that’s the point. You’re trying to amend it so citizens can be put in prison.
Wyden: At least for the purposes of today, I think I’ve pummeled everything I can say. I invite you, I welcome your input, we had a long long (?), 40 years that prevents American commercial activity from participating in certain boycotts led by foreign governments that today involve the UN but we cannot find one instance of anybody being put in jail, I’d be happy to
[shout from audience]
Folks, let’s be respectful of the gentleman, ok, he has asked an important question … and second, I think I outlined seven or eight things that INDIVIDUALS can do, and literally from your seat here that I customarily think of as part of the First Amendment rights.

So that is an important question, let’s try to find further information on it.
[No applause]

About Peter Miller

Peter Miller is a member of Americans United for Palestinian Human Rights and Occupation-Free Portland and former co-chair of the US Campaign for Palestinian Rights.

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6 Responses

  1. JLewisDickerson
    August 13, 2017, 4:53 am

    RE: “Rather than a strong and expansive view of free speech, Wyden has taken upon himself to define what we can do under our first amendment rights, and it is very limited, ineffectual and lame, but for him, “there is a line to be drawn.” Picnics in the backyard seem to be the pinnacle of free speech for Wyden.” ~ Peter Miller

    JUSTICE LOUIS BRANDEIS ON THE RIGHT OF FREE SPEECH:

    • “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)
    SOURCE – http://quotes.liberty-tree.ca/quote_blog/Louis.Brandeis.Quote.8F27
    Whitney v. California (full text) :: 274 U.S. 357 (1927) – https://supreme.justia.com/cases/federal/us/274/357/case.html
    WIKIPEDIA – https://en.wikipedia.org/wiki/Whitney_v._California

    • “No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion. Only an emergency can justify repression.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)

    • “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)

    • “The constitutional right of free speech has been declared to be the same in peace and war. In peace, too, men may differ widely as to what loyalty to our country demands, and <ban intolerant majority, swayed by passion or by fear, may be prone in the future, as it has been in the past, to stamp as disloyal opinions with which it disagrees.” ~ Justice Louis D. Brandeis’ dissenting opinion in Schaefer v. United States, 251 U.S. 466 (1920)

    SOURCE – http://quotes.liberty-tree.ca/quotes_by/justice+louis+d.+brandeis

  2. JLewisDickerson
    August 13, 2017, 4:59 am

    RE: “Rather than a strong and expansive view of free speech, Wyden has taken upon himself to define what we can do under our first amendment rights, and it is very limited, ineffectual and lame, but for him, “there is a line to be drawn.” Picnics in the backyard seem to be the pinnacle of free speech for Wyden.” ~ Peter Miller

    JUSTICE LOUIS BRANDEIS ON THE RIGHT OF FREE SPEECH:

    ■ “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)
    • SOURCE – http://quotes.liberty-tree.ca/quote_blog/Louis.Brandeis.Quote.8F27
    Whitney v. California (full text) :: 274 U.S. 357 (1927) – https://supreme.justia.com/cases/federal/us/274/357/case.html
    • WIKIPEDIA – https://en.wikipedia.org/wiki/Whitney_v._California

    ■ “No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion. Only an emergency can justify repression.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)

    ■ “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.” ~ Justice Louis D. Brandeis’ concurring opinion in Whitney v. California (1927)

    ■ “The constitutional right of free speech has been declared to be the same in peace and war. In peace, too, men may differ widely as to what loyalty to our country demands, and <ban intolerant majority, swayed by passion or by fear, may be prone in the future, as it has been in the past, to stamp as disloyal opinions with which it disagrees.” ~ Justice Louis D. Brandeis’ dissenting opinion in Schaefer v. United States, 251 U.S. 466 (1920)
    • SOURCE – http://quotes.liberty-tree.ca/quotes_by/justice+louis+d.+brandeis
    Schaefer v. United States, 251 U.S. 466 (1920) – https://www.scribd.com/document/310948111/Schaefer-v-United-States-251-U-S-466-1920

    • JLewisDickerson
      August 13, 2017, 5:17 am

      P.S. FROM WIKIPEDIA [Whitney v. California]:

      [EXCERPTS] Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. . .

      . . . The Whitney case is most noted for Justice Louis Brandeis’s concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.[1] Justice Brandeis and Justice Holmes concurred in the result because of the Fourteenth Amendment questions, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority and supported the First Amendment.

      Holmes in Abrams had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” But Brandeis had a much more specific reason for defending speech, and the power of his opinion derives from the connection he made between free speech and the democratic process. Citizens have an obligation to take part in the governing process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not only an abstract virtue, but a key element that lies at the heart of a democratic society.

      Implicitly, Brandeis here moves far beyond the clear and present danger test, and he insists on what some have called a “time to answer” test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion. While upholding full and free speech, Brandeis tells legislatures that while they have a right to curb truly dangerous expression, they must define clearly the nature of that danger. Mere fear of unpopular ideas will not do.

      Justice William O. Douglas believed that had Brandeis lived longer, he would have abandoned the clear and present danger test; Whitney is in fact the precursor to the position Douglas and Hugo L. Black would take in the 1950s and 1960s, that freedom of speech is absolutely protected under the First Amendment. Brandeis does not go that far here, and his views were ultimately adopted by the Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), which explicitly overruled Whitney.

      Whitney was later pardoned by the Governor of California based on Justice Brandeis’ concurring opinion. [citation needed] . . .

      SOURCE – http://en.wikipedia.org/wiki/Whitney_v._California

  3. CigarGod
    August 14, 2017, 8:52 am

    Appreciate your key points:
    1. Wyden is part of AIPAC.
    2. He has little respect for our constitution.
    3. Is a blatant bullsh*tter .

  4. Elizabeth Block
    August 14, 2017, 11:00 am

    Beware politicians who say that their bill is not “aimed at” … certain people, certain actions. If the bill gives the government the power to go after those people, for those actions, it will use that power, eventually if not sooner, and probably sooner.

  5. Eric
    August 14, 2017, 7:47 pm

    Any US politician who is willing to put US citizens in prison for 20 years and fine them a million dollars for agitating against a foreign country, is obviously not an American patriot. Wyden’s primary loyalty is clearly to Israel, and he’s very open about it. That this traitor is a hero to so-called liberals is laughable, and shows that PEP is the dominant ethos among these hypocrites. They flit along in their “morality-based” politics, endorsing the cruel Apartheid of the Zionist entity, while concurrently blasting Trump for his racist immigration policies and insufficient condemnation of white supremacists. Which in the warped US political scene qualifies as respectable mainstream opinion.

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