Palestinian rights activists and legal scholars say ruling opens door for striking down anti-BDS laws across US
A US judge blocked a Kansas law that requires state contractors to certify that they do not boycott Israel.
The decision was the first of its kind against such legislation. Palestinian rights activists and legal scholars said the ruling on Tuesday opens the door for striking down anti-BDS laws across the country.
The law was challenged by Esther Koontz, a public school educator who was denied a state contract to train teachers because she refused to sign an affidavit stating that she does not participate in a boycott of Israel.
The American Civil Liberties Union (ACLU), which represents Koontz, hailed the ruling by US District Judge Daniel Crabtree.
“The court has rightly recognised 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.”
It's a very simple case. The state cannot impose a condition on a governmental contract that you give up your First Amendment rights.
- Robert Sedler, law professor
While Crabtree did not declare the law unconstitutional, he suspended the measure while the court addresses its legality.
“The First Amendment protects the right to participate in a boycott,” the judge wrote in his ruling, citing a Supreme Court case.
The First Amendment of the US Constitution prohibits the government from “abridging” freedom of speech.
George Bisharat, a Palestinian-American professor at the UC Hastings College of Law, described Crabtree's ruling as a "striking smackdown of the Kansas law".
Bisharat predicted a long legal battle. "But this is really a pretty amazing decision, and it has implications for the other 25 or so states that have adopted similar legislation," he told Middle East Eye.
The law, one of many US state measures passed to combat the Boycott, Divestment and Sanctions (BDS) movement, was enacted in June 2017.
The ACLU is also challenging a similar law in Arizona. Numerous states have passed varying anti-BDS laws.
Last year, a Houston suburb drew condemnations from free speech advocates after a devastating hurricane for trying to deny relief funds for residents who boycott Israel.
An anti-BDS law was also considered by the Senate last year. The bill had 46 Democratic and Republican co-sponsors, but some lawmakers withdrew their support for the measure after an outcry from the ACLU and other rights groups.
“The states can make their own policies, but they can’t make them in a way that they offend the First Amendment freedom of speech,” Nabih Ayad, a Detroit-based civil rights lawyer told Middle East Eye.
He added that states can curb disruptive speech within their institutions, but the First Amendment remains a “powerful tool” that applies to all levels of government.
Robert Sedler, a constitutional law professor at Wayne State University in Detroit, said the Kansas law imposed "unconstitutional conditions" on contractors.
Artists like Lorde, Roger Waters, and Lauryn Hill have cancelled shows in Israel (Reuters)
"There's a First Amendment right to boycott, to organise opposition by means of boycott... It's a very simple case. The state cannot impose a condition on a governmental contract that you give up your First Amendment rights," Sedler told MEE.
He added that he does not see any other side to the case.
Outgoing Kansas Governor Sam Brownback, a Republican who signed the anti-BDS bill, appeared hopeful that higher courts will rule against the ACLU.
"I think they will lose on appeal ... These types of laws have been passed for years at the federal level. Whether it's on Iran or really a number, South Africa and apartheid," Brownback was quoted as saying by The Wichita Eagle.
Sedler explained that states themselves can boycott Israel or any other country, but they cannot regulate the constitutionally protected conduct of private entities like contractors.
Still, he said that boycotting Israel is an ineffective way to achieve a two-state solution to the conflict.
The professor criticised Israeli Prime Minister Benjamin Netanyahu for aiming to maintain the status quo, but argued that BDS is too limited to apply sufficient pressure to the Israeli government.
"All the boycott does is put liberal Jewish supporters of the two-state solution on the defensive because it comes across as anti-Israel," Sedler said.
'Effective and impactful work'
Artists including Lorde, Roger Waters, and Lauryn Hill have cancelled shows in Israel, answering the calls of BDS activists. Academics and some Christian congregations in the US have also voiced support for the movement.
As BDS gains momentum, the pushback against the campaign and its supporters is becoming more forceful.
Hatem Abudayyeh, a co-founder of the US Palestinian Community Network (USPCN), said anti-BDS legislation and attacks on organisers have not derailed activism for Palestinian rights.
It's happening because we're winning. Israel is being seen, even in the United States, as the criminal apartheid pariah state that it is.
- Hatem Abudayyeh, USPCN
"What I would say is that it makes us have to play defence and not just offence," Abudayyeh told MEE. "When there's a discussion in Illinois, in Pennsylvania, in Indiana, in New York about these bills in the state legislature, like last year, we had to jump and take away from the resources of other projects."
Bisharat said Israel is transmitting its “growing concerns” about the efficacy of BDS to pro-Israel US organisations, which in turn push anti-BDS legislation to the desk of American politicians.
He added that American legislators and governors who pass anti-BDS bills have “everything to gain and very little to lose” in terms of domestic political benefit.
“It starts in Israel, in other words,” he said.
Abudayyeh said the ferocity of anti-BDS efforts prove that the movement is doing "effective and impactful work".
"It's happening because we're winning," Abudayyeh told MEE. "Israel is being seen, even in the United States, as the criminal apartheid pariah state that it is."
Bisharat, however, said Israel’s reaction to BDS is not necessarily a measure of the movement’s strength.
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He said Israelis are more concerned about the symbolic consequences of BDS than the movement’s economic impact.
“They hype every threat… When they get everybody hot and bothered and scared, they can mobilise resources easier,” Bisharat said.
But BDS will continue to grow, the UC Hastings law professor said. He added that the movement is the “only game in town” in the struggle for Palestinian liberation, in the “complete absence of viable leadership.”