Kirsten Gillibrand's Free Speech Hypocrisy

Some free speech is better than others for New York Democrat

Kirsten Gillibrand
Kirsten Gillibrand / Getty Images
September 6, 2017

Sen. Kirsten Gillibrand (D., N.Y.) cited free speech concerns when she withdrew her support in late July for the bipartisan Israel Anti-Boycott Act, yet in the past she has taken positions in defense of restrictions on constitutional rights.

Gillibrand pulled her support for the legislation, introduced by her Democratic colleague Benjamin Cardin (Md.) and co-sponsored by 47 other senators, after she sat down with the American Civil Liberties Union, which had called on the Senate to oppose a bill it claimed would penalize supporters of the anti-Israel boycott, divestment, and sanctions movement (BDS).

The act would expand the 1979 Export Administration Act prohibiting commercial support of boycotts of U.S. allies, such as Israel, to include boycotts proposed by international government organizations such as the European Union and the United Nations Human Rights Council.

Following her meeting with the ACLU, Gillibrand said, "I would never support any bill that chills free speech," and announced she would not support the legislation "in its current form."

Gillibrand said the language had to be rewritten "to be very specific that someone who is in favor of BDS can speak their mind and someone who's against BDS can speak their mind—that you are always allowed to speak your mind."

In an op-ed for the Jewish newspaper Forward, Gillibrand defended her decision further.

She wrote, "my position on the First Amendment has never changed, and never will: it is sacred … We should never have to choose between supporting Israel and supporting the First Amendment. The oath I swore as a senator was to 'support and defend the Constitution.' That means defending free speech, including protests I really don't like."

Gillibrand has previously defended restrictions on constitutional rights.

In 2016, the senator favorably compared proposed restrictions on gun rights to the First Amendment exception prohibiting incitement of public riots.

She said at the time it was a "false argument" to claim "common sense gun reform" would abrogate Second Amendment rights, just as free speech protections do not allow one to "yell 'fire'" in a crowded theater.

Gillibrand also supported a constitutional amendment a Democratic coalition proposed in 2014 regulating campaign contributions and spending, which conservatives interpreted as a violation of the First Amendment.

The senator has also voiced opposition to the U.S. Supreme Court decision in the Citizens United case, saying she disagreed with the premise that corporations have free speech rights.

Alan Dershowitz, professor emeritus at Harvard Law School, told the Washington Free Beacon Gillibrand's concerns about the Israel Anti-Boycott Act could be settled with the simple addition of a line stating "no provision of this law shall be construed in a manner that violates the First Amendment."

Other constitutional experts, including Northwestern University School of Law Professor Eugene Kontorovich, have argued that such clarifications are unnecessary.

To date, Gillibrand is the only senator to withdraw her support from the measure.

Gillibrand's office did not respond to request for comment by press time.