On Feb. 7, I testified before a committee of the Minnesota Legislature in opposition to HF 400, a bill that would require anyone entering into a contract with the state having a value of more than $1,000 to certify that they had not discriminated and would not discriminate against Israel.
HF 400 is plainly directed at supporters of the BDS movement (boycott, divest, sanction) that seeks to cause Israel to change its policies with respect to West Bank settlements by boycotting Israeli products, divesting from Israeli investments, and sanctioning Israel.
While this is a political movement I strongly oppose, and one that has not been particularly effective, it is still a political movement nonetheless.
All this produced my personal “Skokie” moment. It was not easy, but I did what I believe was the ethically and morally correct thing.
In the late 1970s, a neo-Nazi group sought to stage a march through the heart of Skokie, Ill. At the time, Skokie had the largest population of Jewish Holocaust survivors living outside of Israel, and the proposed march was intended to be deeply wounding to the Jewish community. The city of Skokie, at the urging of its Jewish residents, attempted to prevent the march from taking place.
A Jewish lawyer, working through the ACLU, took on the odious task of representing the neo-Nazis for the purpose of vindicating their First Amendment right to freedom of expression. He was vociferously criticized for taking the case. But because it was patently unconstitutional for Skokie to ban the march, the ACLU prevailed and the march took place, largely without incident.
I took a stand against HF 400 even though it put me in opposition to many in my own Jewish community. This bill is being pushed by the Israel Project and by the Jewish Community Relations Council (the latter of which I support).
The bill is patently unconstitutional. It usurps the exclusive power of Congress to regulate foreign commerce, and it imposes an unconstitutional condition — forgoing freedom of expression that is protected by the First Amendment — as a condition of doing business with the state.
I felt it was ethically imperative for me to personally appear before the Legislature to enumerate the reasons why HF 400 violates the U.S. Constitution. In my view — particularly at this very dark time in American history — no one, but most particularly members of the Jewish community, should be supporting legislation, regulations, or rules that limit freedom of expression in any way, shape or form. Laws that condition doing business with government on surrendering constitutional rights, or adhering to a particular political or religious viewpoint, could easily be enacted by authoritarian government leaders against Jews, Muslims, Catholics, gays, immigrants, or other minority groups.
I have Jewish friends who, to this day nearly 40 years later, still refuse to support the ACLU because of the Skokie case. I suspect that I may have friends who will be displeased with the position I have taken on HF 400 on behalf of the Constitution. But I will rest easy tonight knowing that I did the ethically and morally correct thing. And I will look forward to a broad-based debate of the propriety of supporting such unconstitutional legislation within the Jewish community.
For those of you who are Minnesota residents and share my concerns, please voice them to your legislators and to Gov. Mark Dayton. Should the bill be enacted into law, I anticipate that there will be an unfortunate court battle to protect that precious gift given to us by the framers of the Constitution: freedom of expression. Let’s try to avoid that.
William Pentelovitch is board chairman of the American Civil Liberties Union of Minnesota.