‘Combating BDS Act’ Is Unconstitutional

On January 3, the first day of the Congressional session, Sen. Marco Rubio (R-FL) introduced S.1, which incorporates four unpassed bills from the previous session, including the unconstitutional Combating BDS Act. On January 8, Rep. Michael McCaul (R-TX) introduced a companion bill in the House, H.R.336.

This memo sets out the constitutional concerns with a bill encouraging states to punish people who boycott for Palestinian rights.

Constitutional issues with laws that punish people for boycotting

  • Government cannot constitutionally deny contracts based on political viewpoint

This bill is unconstitutional because it encourages states and localities to enact laws that punish individuals, sole proprietorships, and companies for exercising their First Amendment-protected right to engage in boycotts for Palestinian rights by denying their right to procure government contracts. Congress cannot encourage state and local governments to enact unconstitutional laws.

  • Courts agree and have already acted to stop these laws in Kansas and Arizona

Two federal district judges have ruled that such laws are unconstitutional violations of the First Amendment and have enjoined Kansas and Arizona from implementing state laws that prevent individuals, sole proprietorships, and companies from contracting with the state unless they pledge not to boycott for Palestinian rights.

In September 2018, US District Judge Diane Humetewa wrote in her decision issuing a preliminary injunction against the Arizona law: “A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott.”

In January 2018, US District Judge Daniel Crabtree wrote in his decision issuing a preliminary injunction against the Kansas law: “The Kansas Law’s legislative history reveals that its goal is to undermine the message of those participating in a boycott of Israel. This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel. Both are impermissible goals under the First Amendment.”

Both lawsuits were filed by the American Civil Liberties Union (ACLU) on behalf of plaintiffs who were denied state contracts because they supported boycotts for Palestinian rights. The ACLU has similarly opposed the Combating BDS Act, noting that people boycotting for Palestinian rights are “penalized solely because they choose to engage in protected expression disfavored by the political class in the states in question. Such a penalty flies in the face of the First Amendment’s guarantee that the state should impose no law infringing on the right to speak freely and to associate with those of like mind.”

In addition, there are three additional lawsuits pending challenging similar laws in Texas and Maryland.

  • The Supreme Court ruled that boycotts are protected speech under the First Amendment

In 1982, the Supreme Court ruled in NAACP v. Clairborne Hardware Co. that boycotts to advance political, social, and economic change are an exercise of “First Amendment rights of speech, assembly, association, and petition.” The Combating BDS Act strikes at the heart of this Supreme Court ruling and poses a grave threat to the exercise of Americans’ First Amendment right to boycott.

Real people are facing real consequences because of laws aimed at silencing dissent against Israel’s policies

As all of these lawsuits demonstrate, individuals are suffering tangible professional and economic harm because they acted upon their political and moral convictions by refusing to certify to the state government that they do not support boycotts for Palestinian rights.

The plaintiff in the ACLU case in Kansas is Esther Koontz. She is a math teacher in Wichita, Kansas, who was denied a state contract to participate in a teacher training program because she was required to a sign a certification that she did not support boycotts for Palestinian rights. She refused to sign because it conflicted with her political and religious beliefs (she belongs to a Mennonite church that supports boycotts for Palestinian rights). She sued because “it seems preposterous that my decision to participate in a political boycott should have any effect on my ability to work for the state of Kansas.”

In the Arizona case also filed by the ACLU, the plaintiff was Mik Jordahl, who owns a sole proprietorship law firm which had long contracted with the state to provide public defender services. His contract was not renewed by the state after he refused to sign a certification that he did not boycott for Palestinian rights, something which he supports. He sued because the law “inhibits my constitutionally protected right to protest injustices as I see them and spend my money where and how I please if I want to keep doing a job that I care about.”

Bahia Amawi is a speech pathologist who previously worked in Austin public schools. She was fired from her job because she refused to sign a certification mandated by Texas law requiring state contractors to affirm that they do not boycott for Palestinian rights, and is now suing the state. As a Palestinian-American who personally boycotts Israeli settlement products out of political convictions, she refused to sign. When asked if she would consider signing the certification despite her political beliefs, she replied: “Absolutely not. I couldn’t in good conscience do that. If I did, I would not only be betraying Palestinians suffering under an occupation that I believe is unjust and thus, become complicit in their repression, but I’d also be betraying my fellow Americans by enabling violations of our constitutional rights to free speech and to protest peacefully.”

There are also four plaintiffs in a separate lawsuit filed by the Texas chapter of the ACLU. According to the ACLU, “the lawsuit is brought on behalf of four people who were forced under the law to choose between signing the certification or forgoing professional opportunities and losing income: John Pluecker, a freelance writer who lost two service contracts from the University of Houston; George Hale, a reporter for KETR who was forced to sign the certification against his conscience in order to keep his job; Obinna Dennar, a Ph.D. candidate at Rice University, who was forced to forfeit payment for judging at a debate tournament; and Zachary Abdelhadi, a student at Texas State University, who has had to forego opportunities to judge high school debate tournaments.”

Finally, regarding the Texas law, the city of Dickinson required residents to certify that they don’t boycott for Palestinian rights in order to receive aid from the government from damages sustained during Hurricane Harvey. The outcry from this ludicrous requirement compelled the city to do away with this initial stipulation, but they were clearly responding to the mandate and the clear wording of the Texas law in writing this certification into their contracts.

And earlier this month, the Council on American-Islamic Relations (CAIR) filed a lawsuit on behalf of Saqib Ali, a software engineer and former state legislator, who is unable to do further business with the state after its governor issued an executive order barring contracts with individuals who boycott for Palestinian rights.

Boycotts have been utilized to promote justice throughout history and boycotts for Palestinian rights are no different

Boycotts have been utilized by activists to promote justice throughout the entire history of the United States. People boycotted British tea and other products to protest taxation without representation. People boycotted cotton to protest slavery. People boycotted public transportation to protest segregation. People boycotted grapes to protest exploitative working conditions in that industry. People boycotted South African products to protest apartheid. Today, people boycott doing business in states that discriminate against LGBTQ people. Boycotting for Palestinian rights builds on this proud tradition.

In 2005, more than 170 Palestinian civil society organizations issued a call for people of conscience to engage in campaigns of boycott, divestment, and sanctions (BDS) to promote Palestinian freedom, justice, and equality. The call has been heeded by a wide range of organizations working for justice, from racial justice organizations such as the Movement for Black Lives and Jewish-American organizations such as Jewish Voice for Peace, to Israeli organizations such as Boycott from Within.

In the United States, churches, labor unions, academic associations, student governments, and celebrities have taken action to boycott for Palestinian rights. USCPR maintains a list of more than 250 BDS victories to date in the United States, indicating the widespread support that exists in this country to boycott for Palestinian rights.