Anti-BDS Laws vs the First Amendment

by | Apr 29, 2019

Anti-BDS Laws vs the First Amendment

by | Apr 29, 2019

Senator Marco Rubio made the common argument for the Combating BDS Act in an opinion piece in the New York Times. He argued that the Boycott, Divestment and Sanctions (BDS) movement is an international campaign that embraces discriminatory economic warfare against Israel and that the goal of the BDS movement is to eliminate any Jewish state between the Jordan River and the Mediterranean Sea. He further argued that the Combating BDS Act and other State anti-BDS acts do not violate Americans’ First Amendment right to free speech:

“While the First Amendment protects the right of individuals to free speech, it does not protect the right of entities to engage in discriminatory conduct. Moreover, state governments have the right to set contracting and investment policies, including policies that exclude companies engaged in discriminatory commercial- or investment-related conduct targeting Israel.”

And that:

“The Combating B.D.S. Act does not infringe on Americans’ First Amendment rights or prohibit their right to engage in boycotts. By design, it focuses on business entities — not individuals — and, consistent with the Supreme Court’s unanimous ruling in Rumsfeld v. Forum for Academic and Institutional Rights (2006), it focuses on conduct, not speech. Indeed, it does not restrict citizens or associations of citizens from engaging in political speech, including against Israel.”

To summarize, Rubio and the anti-BDS supporters main arguments are that:

  1. The anti-BDS laws do not violate Americans’ First Amendment rights because they do not target individuals’ activity.
    2. The anti-BDS laws does not violate Americans’ First Amendment rights because they regulate conduct, not speech.
    3. The state has the right to regulate commerce, including companies that engage in discriminatory policies

The State of Texas used these same arguments in the case brought by the American Civil Liberties Union and the ACLU of Texas on behalf of four Texans, as well as a separate case brought by the Council on American-Islamic Relations. Unfortunately for the supporters of anti-BDS legislation, U.S. District Court Judge Robert Pitman from the Texas Federal Court did not agree with their arguments.

The court granted the motion for a preliminary injunction for the defendants which prevents The State of Texas from enforcing H.B. 89, or any “No Boycott of Israel” clause in any state contract. The fact that they were granted a preliminary injunction is a major setback for the State of Texas since, “A preliminary injunction is an extraordinary remedy, and the decision to grant such relief is to be treated as the exception rather than the rule.” Valley v. Rapides Parish Sch. Bd., (1997). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., (2008). “The party seeking injunctive relief carries the burden of persuasion on all four requirements.”

The purpose of this article is to review the judge’s arguments that specifically refute the basis for the claims by Marco Rubio and other anti-BDS supporters. For more detailed background and a review of the legal arguments in the case, I refer the reader to the excellent article by Glenn Greenwald at The Intercept.

Texas State Law H.B. 89 prohibits state entities from contracting with companies that “boycott Israel.” It provides: “A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it:

(1) does not boycott Israel; and
(2) will not boycott Israel during the term of the contract.”

The plaintiffs in the case (the four individuals) argued that they suffered harm because they were “denied a contract or that they cannot boycott Israel during the term of their contract.” Texas (one of the defendants) did not dispute that they suffered harm, but that it was not due to H.B. 89. In the State’s view “the statutes only apply to acts taken by government contractors in their companies capacity.” They further argued that “the boycott activity was taken in their personal capacities.” Texas had a problem though, the plaintiffs entered into the contracts (or attempted to contract with the state) as sole proprietors” (the I.R.S. defines A sole proprietor as “someone who owns an unincorporated business by himself or herself.” The plaintiffs argued that “under Texas law there is no legal distinction between their company acts and their personal acts.” That is, “a person has no legal existence apart from their sole proprietorship (Id. (citing CU Lloyd’s of Texas v. Hatfield, 126 S.W.3d 679, 684 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Black’s Law Dictionary (7th ed. 1999) (a sole proprietorship is “[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity”))).

Consequently, Plaintiffs’ “personal consumption and financial decisions . . . affect and belong to the sole proprietorship” and so are affected by H.B. 89. (Pluecker Reply Mot. Prelim. Inj., Dkt. 40, at 10; see also Amawi Reply Mot. Prelim. Inj., Dkt. 39, at 14).” In fact, the federal government taxes profit from a sole proprietorship as personal income at the personal income tax rate. Recall that Marco Rubio’s argument was that, “The Combating B.D.S. Act does not infringe on Americans’ First Amendment rights or prohibit their right to engage in boycotts. By design, it focuses on business entities — not individuals.” The court accepted the argument that (at least in this case), “you cannot separate the activities of the business entity from the individual.” The court then determined the plaintiffs had standing to seek an injunction based on violations of their First Amendment rights. Judge Pitman ruled that the First Amendment therefore does apply to this case.

Next the court had to determine whether the First Amendment applies to the plaintiffs’ conduct. Texas argued (similar to Rubio) that the conduct of the plaintiffs’ “was not expressive conduct protected by the First Amendment.” That is, that anti-BDS laws are “consistent with the Supreme Court’s unanimous ruling in Rumsfeld v. Forum for Academic and Institutional Rights (2006), it focuses on conduct, not speech.” The court had to decide 1. whether the plaintiff’s boycott activity was “expressive conduct” and 2. is the conduct protected under the First Amendment? Judge Pitman wrote: “This issue is one of dueling precedents. Plaintiffs rely on NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), for the proposition that political boycotts are protected by the First Amendment. (Amawi Mot. Prelim. Inj., Dkt. 8-2, at 10–11; Pluecker Mot. Prelim. Inj., Dkt. 14-1, at 22–24). Texas argues that, “boycotting is plainly not speech” under Rumsfeld v. FAIR, 547 U.S. 47 (2006). (Texas Mot. Dismiss, Dkt. 55, at 6–8; see also Texas Resp. Mots. Prelim. Inj., Dkt. 25, at 13–15).

Judge Pitman conclusion was that: “It is Claiborne and not FAIR that governs the case because Claiborne deals directly with political boycotts.” In Claiborne, the organized boycotts by black citizens against white businesses in Mississippi sought to achieve “racial equality and integration” and that “The Supreme Court recognized that the longstanding “practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” Id. at 907 (quoting Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S 290, 294 (1981)). The Court went on to hold that the NAACP’s “boycott clearly involved constitutionally protected activity,” and that the State’s “broad power to regulate economic activity” could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force government and economic change.” “FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott, “the word “boycott” appears nowhere in the opinion.” Other objections were brought forward by Texas, but in the end the court concluded that, “the Plaintiffs’ BDS boycotts are speech protected by the First Amendment.”

The court also addressed the anti-BDS argument that: “While the First Amendment protects the right of individuals to free speech, it does not protect the right of entities to engage in discriminatory conduct.” The key words here are “discriminatory conduct.” Judge Pitman wrote: “The statute’s plain text makes its purpose obvious: to prevent expressive conduct critical of the nation of Israel, not discriminatory conduct on the basis of Israeli national origin. Texas points to no authority indicating that such a purpose is a legitimate or compelling aim of government justifying the restriction of First Amendment freedoms.” and Texas’ briefing in opposition to Plaintiffs’ motions for a preliminary injunction further emphasizes that the motivating force behind H.B 89 is hostility toward boycott actions against a foreign-nation “ally,” not an interest in preventing discrimination against Israeli persons or entities on the basis of national origin.” Put simply, It is not discriminatory conduct because it is not directed against the Jewish people but against the nation of Israel.

Rubio writes that the supporters of BDS believe “they have a right to a government contract” This is a straw-man argument. BDS supporters in this case (nor am I aware of any BDS supporters making that argument) do not argue for a right to a government contract but that “by requiring contractors to certify that they do not and will not boycott Israel, H.B. 89 elicits information about the contractors’ beliefs solely for the purpose of denying them state contracts on the basis of those beliefs. (Pluecker Mot. Prelim. Inj., Dkt. 14-1, at 34; Amawi Mot. Prelim. Inj., Dkt. 8-2, at 16).” They also argue that “the statute’s certification requirement compels contractors to take a public stance on a contentious political issue. Again Judge Pitman sided with the plaintiffs, “the Court finds that H.B. 89’s certification requirement compels contractors’ speech, Texas must show its “inquiry is necessary to protect a legitimate state interest.” Baird, 401 U.S. at 7. But because the Court also finds that H.B. 89 inquires into a contractor’s “views or associations solely for the purpose of withholding a right or benefit because of what he believes, the Court concludes that it is not sustained by a legitimate state interest. Accordingly, Plaintiffs are likely to succeed on their compelled speech claim.”

The Court concluded that: “In light of the forgoing, the Court finds that Plaintiffs are likely to succeed on their claims that H.B. 89 is unconstitutional under the First Amendment because it (1) is an impermissible content- and viewpoint-based restriction on protected expression; (2) imposes unconstitutional conditions on public employment; (3) compels speech for an impermissible purpose; and (4) is void for vagueness.

As Glenn Greenwald wrote: “The ruling, issued by U.S. District Court Judge Robert Pitman, categorically rejected each of Texas’ justifications for the law.” It also refutes all of the talking points of the anti-BDS supporters.

In what seemed like a desperate move, the state of Texas defended it’s position based on the fact that “25 other states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement. In Texas, only five legislators voted against H.B. 89.”

Judge Pitman’s criticism of this argument was harsh:

“Texas touts these numbers as the statute’s strength. They are, rather, its weakness. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. The purpose behind the Bill of Rights, and of the First Amendment in particular, is to protect unpopular individuals from retaliation—and their ideas from suppression—at the hands of an intolerant society. Thus, our citizens must tolerate insulting, and even outrageous, speech in public debate. They must do so in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment. With H.B. 89, Texas compresses this space. The statute threatens to suppress unpopular ideas and manipulate the public debate through coercion rather than persuasion. This the First Amendment does not allow.”

What will happen now? Further cases are making their way through the court system but these rulings so far have undermined the anti-BDS argument: “This is now the third time a federal court has blocked an anti-BDS law on First Amendment grounds,” said Brian Hauss, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Whatever their views on the BDS movement, members of Congress and state legislators should heed this strong message from the courts: The right to boycott is alive and well in the United States and any attempt to suppress it puts you squarely on the wrong side of the Constitution.”

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