(February 12, 2018 / JNS) During the last few years, more than 20 U.S. states have targeted the BDS movement with legislation aimed at preventing state entities from doing business with companies that seek to boycott Israel. Many pro-Israel advocates view the enactment of these state laws as a broader response to the multifaceted threat posed by BDS, including on college campuses and among mainline Protestant churches.
But this success in pro-Israel advocacy has been met with some pushback, as the American Civil Liberties Union (ACLU) and some pro-Palestinian legal groups have argued that anti-BDS legislation violates the Constitution. In a first, a Kansas federal judge recently agreed with this sentiment, issuing a preliminary injunction against an anti-BDS law in that state that went into effect last July.
The case in Kansas has highlighted a debate over the constitutionality of anti-BDS legislation, and with the ACLU filing another lawsuit against a similar law in Arizona, a showdown over the future of the laws is underway.
In Kansas, the ACLU represented Esther Koontz, a member of the Mennonite Church USA, which last year passed a resolution to divest from Israel. Koontz, in accordance with calls to boycott Israel from her church, decided not to buy consumer products made by Israeli companies operating beyond the pre-1967 lines. Koontz, a contractor with the Kansas Department of Education’s Math and Science partnership program, said she could not sign a form saying that she does not participate in a boycott of Israel.
The ACLU filed a lawsuit on her behalf, arguing that the Kansas anti-BDS law violated the First Amendment due to the fact that it “it compels speech regarding protected political beliefs, associations, and expression; restricts the political expression and association of government contractors; and discriminates against protected expression based on its content and viewpoint.”
U.S. District Judge Daniel Crabtree, who was appointed by President Barack Obama in 2013, issued a preliminary injunction blocking the enforcement of the law, writing that “the Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”
“The court has rightly recognized the serious First Amendment harms being inflicted by this misguided law, which imposes an unconstitutional ideological litmus test,” ACLU attorney Brian Hauss said in a statement. “This ruling should serve as a warning to government officials around the country that the First Amendment prohibits the government from suppressing participation in political boycotts.”
Marc Greendorfer—founder of the Zachor Legal Institute, a think tank and advocacy organization that states it is “taking the lead in creating a framework to wage a legal battle against anti-Israel movements in America”—called the preliminary injunction in Kansas “very unfortunate.” Zachor has been involved in providing legal analysis to support the constitutionality of anti-BDS state laws.
Rather than fighting the ACLU lawsuit’s constitutional claims, Kansas’s attorney general raised procedural claims based on the fact that the state was willing to grant an exemption to the plaintiff in the case.
“I think the ACLU did their client a disservice in Kansas, as had they simply asked for the statutory exemption, the state would have complied and no lawsuit would have been needed,” Greendorfer told JNS.
According to Greendorfer, the problem with the Kansas case is that the judge ignored the possibility of an exemption and ruled on the constitutional question, despite the fact that the state of Kansas never addressed that issue.
“The judge decided the constitutional issue solely off of the ACLU’s flawed and erroneous First Amendment analysis, resulting in statement of the First Amendment principles that is simply wrong and in clear conflict with Supreme Court precedent,” he said.
First Amendment violation?
Greendorfer pointed to multiple precedents for the legality of anti-boycott statutes that ban discriminatory commercial conduct, but do not infringe on free speech.
“State anti-BDS laws only regulate how the states spend taxpayer money,” he said. “They don’t limit the actual speech of citizens, nor do they infringe any right to engage in bona fide political speech.”
Greendorfer said the seminal case on boycotts and the First Amendment was a case from the American civil rights era, when African-Americans engaged in boycotts against local merchants and government officials who were directly infringing upon their Reconstruction-era rights.
“The Supreme Court clearly stated in that case that it wasn’t speaking on boycotts that were of a secondary nature or that were regulated by otherwise valid laws. And in a case that was decided at approximately the same time, dealing with a boycott that was very similar to BDS boycotts, the Supreme Court upheld a law that regulated boycotts,” he said.
Further, said Greendorfer, the “direct analogy to anti-BDS laws is the second case involving Americans protesting Soviet actions in Afghanistan, where the Supreme Court found prohibitions on boycott activity to not violate First Amendment protections, which the ACLU utterly ignored [in its challenge of anti-BDS laws].”
Arizona fights back
Last December, the ACLU filed a second federal lawsuit challenging Arizona’s anti-BDS law.
Unlike the episode in Kansas, the state of Arizona filed a more forceful case concerning the First Amendment issues and a rebuttal of the ACLU’s arguments. The Zachor Legal Institute and several other pro-Israel groups—including StandWithUs, the Israel Project and the Israel Allies Foundation—filed an amicus brief with a federal court to uphold Arizona’s HB 2617.
Like similar anti-BDS legislation enacted nationwide, the Arizona law, passed in 2016, forbids Arizona governmental agencies from engaging with contractors who participate in the boycott of Israeli goods or services.
“The Act does not constrain…expression of political views; it addresses non-expressive conduct not entitled to First Amendment protection,” StandWithUs said in a statement.
Joining the case, Nevada and Texas, which both passed anti-BDS laws last year, filed amicus briefs supporting the measure in the U.S. District Court for the District of Arizona.
In its brief, Nevada stated that the Arizona law is a classic anti-discrimination measure that prohibits discrimination on the basis of nationality or national origin.
“States have long exercised their right to use their own money to refuse to subsidize discrimination based on nationality,” said Nevada Attorney General Adam Laxalt. “A business in Arizona has asserted a right to reject people because of the country listed on their passport. But we as a State have an equal right to refuse to join hands economically with businesses that behave in this discriminatory way.”
As the BDS cases play out in federal court, Greendorfer is confident that the ACLU will lose in both Kansas and Arizona.
“The preliminary injunction in Kansas is not the end of the case,” he said. “The case is still proceeding in the district court there, so there is an opportunity for the judge to apply the law properly.”
In Arizona, Greendorfer feels that the U.S. district court “will follow Supreme Court precedent and find that the Arizona law complies with relevant constitutional provisions.”