More than 250 million Americans, some 78 percent of the population, live in states with anti-boycott laws or policies. With the right to boycott under attack across the United States, some members of Congress are pushing back against these dangerous and unrelenting attacks.

Last week, Representative Ilhan Omar (D-MN), along with Representatives John Lewis (D-GA) and Rashida Tlaib (D-MI), introduced a resolution reaffirming the First Amendment right to participate in political boycotts as grounded in America’s history dating back to the days of Samuel Adams and the Boston Tea Party.

Their recent legislative push stands in stark contrast to repeated attempts by other members of Congress to stamp out constitutionally protected boycotts of Israel.

These attempts include the Israel Anti-Boycott Act, which Senators Ben Cardin (D-MD) and Rob Portman (R-OH), and Reps. Peter Roskam (R-IL) and Juan Vargas (D-CA) introduced in the previous Congress. The bill would have banned participating in political boycotts of countries friendly to the United States when the boycott is called for by an international organization, such as the United Nations.

The bill would have carried a penalty of up to $1 million for engaging in the First Amendment right to boycott. And, believe it or not, that’s an improvement. Earlier versions of the bill had included jail time. The bill generated some key opposition and died in Congress last year, but rumor is, this bill might be reintroduced again in this Congress.

Senators Marco Rubio (R-FL), Cory Gardner (R-CO), and Mitch McConnell (R-KY) also managed to push the Combating BDS Act through the Senate as a part of a larger bill. That bill encourages states to create laws that three federal courts have now blocked as unconstitutional. Those laws violate the First Amendment by penalizing businesses, such as our client The Arkansas Times, and individuals who refuse to sign a pledge certifying that they do not and will not engage in a constitutionally-protected boycott of Israel. Penalties often come in the form of denying government contracts to those who dare to disagree with their government.

Senators Rand Paul (R-KY), Chris Van Hollen (D-MD), and Bernie Sanders (I-VT) strongly argued that the anti-BDS legislation was unconstitutional, but the Senate passed it anyway. The bill has not gotten a vote in the House, although Rep. Michael McCaul (R-TX) has tried to find ways to get the House to consider it. The members of Congress who voted for or continue to support the various anti-boycott bills seem to have forgotten that the right to boycott is a proud part of this country’s constitutional tradition.

As Reps. Lewis, Omar, and Tlaib’s First Amendment resolution reminds these members with selective memory, Americans boycotted Imperial Japan in 1937 in an attempt to slow the country’s progress in World War II. Americans boycotted Nazi Germany in response to the dehumanization of Jewish people that led up to the Holocaust. Many Americans also led the boycott campaign against South Africa in protest of apartheid.

Exercising one’s right to boycott is quintessentially American, and that reminder was clearly due. Rep. Omar has been attacked on numerous occasions under the premise of anti-Semitism for advocating for political boycotts of Israel due to her position on human rights. And Senator Rubio singled out Rep. Tlaib as anti-Semitic for her criticism of the Combating BDS Act as antithetical to First Amendment principles. Sen. Rubio, notably, did not similarly lambast other critics of the bill for voicing similar criticism.

It’s no surprise that Reps. Omar and Tlaib took action by introducing this resolution. It’s also not surprising that Rep. Lewis is backing this resolution. He may be a long-time supporter of Israel, and he may not support BDS, but Rep. Lewis is also a long-time civil rights leader and one of the strongest protectors in Congress of the fundamental right to protest. While his views on Israel may stand in contrast to the views of his co-sponsors, all three are united in support of free speech, expression, and the right to boycott.

At the ACLU, we do not take a position on BDS or on the Israel-Palestine conflict. We do however believe strongly in the Constitution and the rights described by this resolution. The right to political boycott is a crucial part of our First Amendment and an important tool for advocacy in the pursuit of equality both here and abroad. The legislation in Congress that seeks to silence this speech is contrary to our Constitution and the rights of all people living in America. The courts know so – it’s about time Congress does as well.

Manar Waheed, Senior Legislative and Advocacy Counsel, ACLU
& Kate Ruane, Senior Legislative Counsel, ACLU

Emotion recognition is a hot new area, with numerous companies peddling products that claim to be able to read people’s internal emotional states, and AI researchers looking to improve computers’ ability to do so. This is done through voice analysis, body language analysis, gait analysis, eye tracking, and remote measurement of physiological signs like pulse and breathing rates. Most of all, though, it’s done through analysis of facial expressions.

A new study, however, strongly suggests that these products are built on a bed of intellectual quicksand.

The key question is whether human emotions can be reliably determined from facial expressions. “The topic of facial expressions of emotion — whether they’re universal, whether you can look at someone’s face and read emotion in their face — is a topic of great contention that scientists have been debating for at least 100 years,” Lisa Feldman Barrett, Professor of Psychology at Northeastern University and an expert on emotion, told me. Despite that long history, she said, a comprehensive assessment of all the emotion research that has been done over the past century had never been done. So, several years ago, the Association for Psychological Science brought together five distinguished scientists from various sides of the debate to conduct “a systematic review of the evidence testing the common view” that emotion can be reliably determined by external facial movements.

The five scientists “represented very different theoretical views,” according to Barrett, who was one of them. “We came to the project with very different expectations of what the data would show, and our job was to see if we could find consensus in what the data shows and how to best interpret it. We were not convinced we could, just because it’s such a contentious topic.” The process, expected to take a few months, ended up taking two years.

Nevertheless, in the end, after reviewing over 1,000 scientific papers in the psychological literature, these experts came to a unanimous conclusion: there is no scientific support for the common assumption “that a person’s emotional state can be readily inferred from his or her facial movements.”

The scientists conclude that there are three specific misunderstandings “about how emotions are expressed and perceived in facial movements.” The link between facial expressions and emotions is not reliable (i.e., the same emotions are not always expressed in the same way), specific (the same facial expressions do not reliably indicate the same emotions), or generalizable (the effects of different cultures and contexts has not been sufficiently documented).

As Barrett put it to me, “A scowling face may or may not be an expression of anger. Sometimes people scowl in anger, sometimes you might smile, or cry, or just seethe with a neutral expression. Also, people scowl at other times — when they’re confused, when they’re concentrating, when they have gas.”

The scientists conclude:

These research findings do not imply that people move their faces randomly or that [facial expressions] have no psychological meaning. Instead, they reveal that the facial configurations in question are not “fingerprints” or diagnostic displays that reliably and specifically signal particular emotional states regardless of context, person, and culture. It is not possible to confidently infer happiness from a smile, anger from a scowl, or sadness from a frown, as much of current technology tries to do when applying what are mistakenly believed to be the scientific facts.

This paper is significant because an entire industry of automated purported emotion-reading technologies is quickly emerging. As we wrote in our recent paper on “Robot Surveillance,” the market for emotion recognition software is forecast to reach at least $3.8 billion by 2025. Emotion recognition (aka “affect recognition” or “affective computing”) is already being incorporated into products for purposes such as marketing, robotics, driver safety, and (as we recently wrote about) audio “aggression detectors.”

Emotion recognition is based on the same underlying premise as polygraphs aka “lie detectors:” that physical body movements and conditions can be reliably correlated with a person’s internal mental state. They cannot — and that very much includes facial muscles. What is true of facial muscles, it stands to reason, would also be true of all the other methods of detecting emotion such as body language and gait.

The belief that such mind reading is possible, however, can do real harm. A jury’s cultural misunderstanding about what a foreign defendant’s facial expressions mean can lead them to sentence him to death, for example, rather than prison. Translated into automated systems, that belief could lead to other harms; a “smart” body camera falsely telling a police officer that someone is hostile and full of anger could contribute to an unnecessary shooting.

As Barrett put it to me, “there is no automated emotion recognition. The best algorithms can encounter a face — full frontal, no occlusions, ideal lighting — and those algorithms are very good at detecting facial movements. But they’re not equipped to infer what those facial movements mean.”

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project