Punishing Congress Members for Free Speech Violates First Amendment

U.S. Capitol

A hallmark of our free speech tradition is that we may publicly express our opinions on any subject without fear that government officials can to punish us for those views.

President Trump’s encouragement of a decision Thursday by Israel to bar two U.S. Congress members because of their anti-Israel views ought to outrage all Americans — irrespective of domestic or international politics.

The essence of our First Amendment freedoms is the government may not inhibit or punish us for our speech, regardless of the content of that speech, with few exceptions, generally tied to wartime considerations, child pornography or causing immediate harm to others.

On Thursday, Trump hailed the action by the Israeli government of Benjamin Netanyahu — whom Trump publicly endorsed for re-election some weeks ago — to bar Democratic Reps. Rashida Tlaib of Michigan and Ilhan Omar of Minnesota from a planned visit. Israel later said it would allow Tlaib to visit her 90-year-old Palestinian grandmother, who lives on the occupied West Bank. Tlaib in turn chose not to make the trip, citing “oppressive conditions.”

Speaking before Israel’s initial decision, Trump said Israel would be showing “great weakness” if it allowed the pair to visit, then shifted to 2020 election rhetoric: “Minnesota and Michigan will have a hard time putting them back in office. They are a disgrace.” Within hours, Israel — which previously had said it would allow the two into the country out of respect for the U.S. Congress — announced the ban.

Tlaib and Omar have publicly battled Trump on a range of domestic issues ranging from immigration to banning Muslims from entering the U.S. Omar has called Trump a “fascist.” Trump has repeatedly attacked both women, famously telling the two U.S. citizens to “go back” where they came from and calling for Omar’s resignation for suggesting that finances are the real underpinning of U.S. support for Israel.

The two members of Congress support a controversial movement — known as BDS, for boycott, divest and sanction — against the Israeli state for its policies on Palestinians and settlements on the West Bank. A two-year-old Israeli law prevent such supporters from entering its borders.

Let’s set aside the political, historic and diplomatic repercussions of the original decision because of Trump’s involvement — and even the decision to allow Tlaib’s family visit. Let’s not examine speculation that the two outspoken congressional members invited the ban, knowing Israel already has a law allowing it to bar entry by BDS advocates.

Rather, let’s focus on the First Amendment implications of an American president using another nation to carry out a political vendetta against his domestic political critics because of their views.

A hallmark of our free speech tradition is that we may publicly express our opinions on any subject without fear that government officials can to punish us for those views — regardless of our station in life, political clout or popularity.

Even a staunch supporter of Israel, the U.S.-based American Israeli Public Affairs Committee (AIPAC), was critical of the ban: “We disagree with Reps. Omar and Tlaib’s support for the anti-Israel and anti-peace BDS movement, along with Rep. Tlaib’s calls for a one-state solution. We also believe every member of Congress should be able to visit and experience our democratic ally Israel firsthand.”

In our American democracy, we can depart from or endorse, condemn or condone, advocate or oppose the politics of our government. No one need fear the nighttime knock on the door by secret police carrying out orders to silence political opponents. Moreover, neither should we expect anything less than support from our government of a “marketplace of ideas” in which all are free to speak.

U.S. Supreme Court Justice Robert H. Jackson, in a 1943 decision striking down mandatory recitation of the Pledge of Allegiance by West Virginia public school students (West Virginia State Board of Education v. Barnette) perhaps best expressed our nation’s long-standing commitment to free speech.

“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, or force citizens to confess by word or act their faith therein,” he wrote.

When the elected chief of our government encourages, endorses and incites an international power — or anyone, anywhere for that matter — to punish Americans for exercising First Amendment freedoms, we ought to object, if not on behalf of Tlaib and Omar, but for ourselves and in support of Justice Jackson’s “fixed star” of freedom.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

2 thoughts on “Punishing Congress Members for Free Speech Violates First Amendment

  1. Let me remind you that the anti-BDS legislation was signed into law by President Obama and for good cause. It isn’t about freedom of speech, you can say whatever you want about that. The issues at hand are supporting a movement that calls for the actual annihilation of Israel. The anti-BDS movement is actually a movement based on hate and the President is right to call this to the attention of the American people and the national community as well.

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