There is an ongoing campaign in Congress and in state legislatures to pass laws barring BDS against Israel and/or boycotts or other forms of economic pressure against settlements. In parallel, efforts are ongoing at the State and Federal level to define criticism of Israel as anti-Semitism and use this definition to quash free speech and activism ont campuses. For details about the campaign in states, see here; in Congress, see here. For details of the quashing free speech on campuses legislation, see here.
Below is a compilation (updated as new resources appear) of expert opinion/analysis regarding the constitutionality/free speech concerns raised by this legislation. Last update: June 27, 2023
Table of contents:
Lara Friedman analyses & backgrounders
Resources on “Anti-Semitism Awareness Act” & Related Efforts
Resources on “Israel Anti-Boycott Act” & Related Efforts
Resources on legislation in US states to outlaw Israel/settlement boycotts
Resources on the “Combating BDS Act”
Other/general resources
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Lara Friedman Analyses & Backgrounders
January 14, 2020: The NEW Israel Anti-Boycott Act – what it actually says/does
Responsible Statecraft Dec. 12, 2019 (Lara Friedman op-ed): How Donald Trump is Saving the Occupation by Dismantling the 1st Amendment
Jan. 17, 2019: The Surprising New Battleground In the War Against Palestinian Rights: Your Local Courthouse
March 19, 2018: U.S. Politicians Are Backing a Free Speech Exception for Israel — & Creating a Template for Broader Assault on the First Amendment.
March 5, 2018: What would the [“SOFTENED”] Israel Anti-Boycott Act Actually Do? [redline laying out every change it would make in current law – Cardin amended text]
January 31, 2018: BDS Opponents Want Israel Held To A Lower Standard
Dec. 1, 2017: What would Israel Anti-Boycott Act Do? Read the Law for Yourself [redline laying out every change it would make in current law]
Sept. 21, 2017: The ‘Israel Anti-Boycott Act’ Explained (video)
Aug. 17, 2017: The Israel Anti-Boycott Act Is an Act of Political Persecution
February 20, 2017: Israeli Occupation Is Poisoning America’s Democracy
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Resources on “Anti-Semitism Awareness Act” & Related Efforts
Note: For a more comprehensive compendium of articles/analyses opposing the Antisemitism Awareness Act and published in connection with the House passing HR 6090, see this freestanding FMEP resource doc: Statements & Analyses Opposing Federal IHRA legislation (2024)
Jewish Faculty (188 signers as of 11:45AM EST, 5/6/24): Statement from Concerned Jewish Faculty Against Antisemitism [“Criticism of the state of Israel, the Israeli government, policies of the Israeli government, or Zionist ideology is not – in and of itself – antisemitic. We accordingly urge our political leaders to reject any effort to codify into federal law a definition of antisemitism that conflates antisemitism with criticism of the state of Israel. This includes ongoing efforts to codify the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism, which has been internationally criticized for conflating antisemitism with legitimate criticism of Israel. We hold varied opinions on Israel. Whatever our differences, we oppose the IHRA’s definition of antisemitism. If imported into federal law, the IHRA definition will delegitimize and silence Jewish Americans–among others–who advocate for Palestinian human rights or otherwise criticize Israeli policies. By stifling criticism of Israel, the IHRA definition hardens the dangerous notion that Jewish identity is inextricably linked to every decision of Israel’s government. Far from combating antisemitism, this dynamic promises to amplify the real threats Jewish Americans already face. If our leaders are earnestly concerned with antisemitism, they should join hundreds of Jewish scholars from across the globe who have endorsed alternative definitions of antisemitism–such as those contained in the Nexus Document or Jerusalem Declaration. Unlike the IHRA definition, these documents offer meaningful tools to combat antisemitism without undermining Jewish safety and civil rights by insulating Israel from legitimate criticism.”]
Politico 5/4/24: ‘The Republicans Are Being Total Hypocrites’ – Rep. Jerry Nadler hits back against GOP efforts to weaponize antisemitism. [“…there are three extant definitions. One is by IHRA. One is the Nexus definition and the other is the Jerusalem definition. They’re all equally valid. They all give different examples for perceptions of antisemitism, and none of them should be enshrined into law. The chief author of the IHRA definition, Kenneth Stern, said don’t codify this. Don’t make it part of any law because these are examples that may indicate antisemitism but don’t necessarily in every case, and to enshrine it into law — he thought and a lot of other people think — would be destructive of free speech. It could make criticism, under certain circumstances, of Israeli government policy antisemitic, which it clearly isn’t.“]
Eugene Volokh, Reason Magazine 5/3/24: “Antisemitism Awareness Act of 2023” (Which Just Passed the House) Could Suppress First-Amendment-Protected Criticism of Israel [“...one problem with HR6090 (as well as the hypothetical proposed statute related to speech about Palestinians) is that speech has in recent years often been labeled discrimination, on the theory that certain statements create a ‘hostile environment’ and therefore violate antidiscrimination rules. Under this theory, a rule that ‘Drawing comparisons of contemporary Israeli policy to that of the Nazis’ is evidence of a Title VI violation means that a university could be punished under Title VI for allowing speech drawing such comparisons. Likewise, drawing such comparisons would violate campus speech codes that ban ‘discrimination’ and ‘harassment.’ As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a ‘hostile educational environment’ based on race, religion, sex, sexual orientation, gender identity, national origin, and the like. Many courts have struck down campus speech codes framed in such terms, but the government and various universities have continued to assert that such speech restrictions are constitutional. But HR6090, it seems to me, would exacerbate the problem by sweeping in anti-Israel speech (and not just overtly anti-Jewish speech) as potentially punishable ‘discrimination.’ Both anti-Israel speech and anti-Jewish speech are protected by the First Amendment (unless they fall within one of the narrow exception to First Amendment protection, such as for true threats). But broadening the unconstitutional restrictions is surely not a step forward. Nor do I think that the provision that, ‘Nothing in this Act shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States,’ helps much. The problem is that government officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or ‘discriminatory,’ is protected by the First Amendment. HR6090, notwithstanding this proviso, tends to reinforce this attitude.“]
CATO 5/3/24: Feds Should Leave Campus Unrest to Others [“On Wednesday, the House of Representatives took its most concrete action to date, largely spurred by the scenes on college campuses across the country. It passed the Antisemitism Awareness Act, which would require the US Department of Education to “take into consideration” the International Holocaust Remembrance Alliance’s (IHRA) “working definition of antisemitism” when investigating schools for civil rights violations. Essentially, the department would judge if an incident was driven by antisemitism, and presumably if a college were allowing antisemitism to exist on campus. The problem is that the definition includes all kinds of speech, most of which is not inherently threatening. Government punishment for such speech would be a fundamental violation of First Amendment rights.”]
Middle East Studies Association/Committee on Academic Freedom 5/3/24: Letter to Senators Schumer and Sanders urging them to oppose H.R. 6090 which codifies the flawed IHRA definition of antisemitism [“We are fully aware of, and deeply troubled by, the rising tide of racism, xenophobia, antisemitism and Islamophobia across the United States, and combatting antisemitism and all other forms of racism, bigotry and discrimination is an essential duty of our colleges and universities. However, by explicitly adopting the flawed IHRA definition of antisemitism and its accompanying examples as the only definition of antisemitism to be used by the federal government, including the Department of Education in its investigations of discrimination complaints under Title VI, this bill would actually hinder the struggle against antisemitism and gravely threaten both free speech and academic freedom…“]
Foundation for Individual Rights in Education (FIRE) 5/1/24: X-thread opposing HR 6090 [“Today, Congress will vote on legislation that will stifle free speech on campus and unconstitutionally restrict expression protected by the First Amendment. Members should vote no. 2/ The bill would adopt an unconstitutionally vague and overbroad definition of anti-Semitism, which colleges would be required to use on campus. 3/ For example, the proposed bill would pressure colleges to censor speech critical of Israel unless the speaker engages in criticism of Israel “similar to that leveled against any other country.” That’s impossibly subjective and will only make students and faculty think twice before engaging in constitutionally protected speech. 4/ If enacted, the Antisemitism Awareness Act will chill core political speech about the Israel/Palestine conflict on our nation’s campuses — the places where difficult conversations and debates are supposed to flourish. 5/ FIRE has been leading the fight against this unconstitutional legislation since 2016. We’ll continue to oppose this unconstitutional bill in the halls of Congress — or in the courts if necessary...”]
SPLC 5/1/24: Letter to House members opposing HR 6090 [“On behalf of the SPLC Action Fund, we write to urge you to oppose H.R. 6090, the Antisemitism Awareness Act, when it comes to the House floor later this week. Title VI of the Civil Rights Act of 1964 currently prohibits antisemitic discrimination and harassment by institutions receiving federal funding. At a time of escalating concerns about antisemitism, adoption of this harmful and unnecessary legislation would increase division and polarization – and do nothing to meaningfully counter antisemitism. The Antisemitism Awareness Act would mandate that the Department of Education consider the controversial International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, including its “contemporary examples,” in Title VI anti-discrimination investigations. Although not legally binding, this definition includes examples that overlap with First Amendment-protected speech, thereby blurring the distinction between legitimate criticism of Israel’s policies or government and antisemitism. This conflation raises serious concerns about potential restrictions on free speech and the broad application of antisemitism to political discourse.“]
American Association of University Professors 5/1/24: X-thread — “Here’s a quick thread clarifying the AAUP’s stance on antisemitism. The AAUP views the growth of antisemitism as a severe threat which can & should be addressed under existing civil rights laws as religious or race discrimination.We object, however, to the use of the IHRA definition, which expands the definition of antisemitism to encompass political criticisms of the state of Israel, which is speech protected by the First Amendment & #academicfreedom. Such overly broad statutory restrictions create a chilling effect on teachers & students, who may avoid assigning reading materials or engaging in classroom discussions about controversial issues concerning the state of Israel or Zionism. As our Statement on Legislation Restricting Teaching about Race observes: ‘When politicians mandate academic content that faculty can & cannot teach or the scholarly areas they can or cannot research/study, they prevent colleges & universities from fulfilling their missions.” Such actions severely violate both academic freedom, the cornerstone of American higher education, & the faculty’s primary role in institutional decision-making.'”
Kenneth Stern, lead author of the IHRA Definition of Antisemitism, on Amanpour and Company 5/1/24: He Helped Define “Antisemitism”; Now He Says the Term Is Being Weaponized (video)
PEN America 5/1/24: Bill Intended to Combat Antisemitism Could Also Undermine Free Speech, Academic Freedom and Legitimate Political Discourse [“PEN America said it was gravely concerned over adoption by the House of Representatives on Wednesday of H.R.6090, the Antisemitism Awareness Act, which it characterized as an overbroad bill that could harm academic freedom, free speech, and legitimate political speech. Combating antisemitic speech and bigotry is an urgent imperative and one that PEN America seeks. In light of the significant rise in antisemitic incidents around the country, the goal is more important than ever, the free speech and free expression organization said. However, the bill would adopt the definition of antisemitism set out by the International Holocaust Remembrance Alliance (IHRA) for the enforcement of federal anti-discrimination laws in education programs or activities. This definition, and its illustrative examples, is overbroad; its enshrinement into law could lead to significant impairment of academic freedom, free speech and legitimate political expression. Codifying the IHRA definition, which was never intended to be legally binding or otherwise codified into law, is not the right way to attack antisemitic speech and bigotry. Its vague nature is ill-suited to serve as a legal standard, much less form a basis for punitive action. ‘We urge the Senate to reject the companion bill (S.3141) and instead focus on efforts that will both address antisemitism and protect free expression,’ PEN America stated.”]
ACLU 4/26/24: Letter to Congress – ACLU Urges House of Representatives to Oppose Anti-semitism Awareness Act [“The American Civil Liberties Union strongly urges you to oppose H.R.6090, the Anti-Semitism Awareness Act.Federal law already prohibits antisemitic discrimination and harassment by federally funded entities. H.R. 6090 is therefore not needed to protect against antisemitic discrimination; instead, it would likely chill free speech of students on college campuses by incorrectly equating criticism of the Israeli government with antisemitism. The ACLU will score this vote.” [emphasis in the original]
Jewish Currents February 2, 2020 (Lara Friedman analysis): States Are Moving to Class Criticism of Israel as Antisemitism
Responsible Statecraft Dec. 12, 2019 (Lara Friedman op-ed): How Donald Trump is Saving the Occupation by Dismantling the 1st Amendment
Times of Israel January 9, 2020: The scholar who wrote the definition of anti-Semitism [Kenneth Stern] says it’s been subverted [“Kenneth Stern drafted the ‘working definition of anti-Semitism’ that US President Donald Trump used in an executive order to target anti-Semitism on college campuses. He’s also one of the recent order’s most vociferous critics. ‘It’s not the definition that’s the problem,’ Stern told The Times of Israel. ‘It’s the abuse of it.’ Fifteen years ago, as an anti-Semitism expert at the American Jewish Committee, Stern took the lead on formulating a definition that would help disparate countries have a unified understanding of the world’s oldest form of hatred. The purpose, he said, was to better track anti-Semitism and anti-Semitic incidents worldwide. ‘It’s really hard for people in different countries to know what to look for without some certain guidelines and a definition,’ he said. ‘There was clearly a need to have some kind of roadmap.’ Now, Stern argues, the Trump administration is using that definition to silence pro-Palestinian speech on college campuses.“]
NJ Star Ledger editorial board Sept. 24, 2018: Trumped-up anti-Semitism charges at Rutgers designed to chill free speech
The Forward (Barry Trachtenberg) July 3, 2018: Congress’s Anti-Semitism Awareness Act Doesn’t Protect Jews – It Protects Israel
WNYC On the Media (audio), June 15, 2018: Is Anti-Zionist Speech Anti-Semitic? (Interviewing Michael Lieberman, Washington Council for the ADL “and one of the principle lobbyists behind the bill” and Kenneth S. Stern, “executive director of the Justus & Karin Rosenberg Foundation, the lawyer responsible for the broad new definition of anti-Semitism that would be codified should the ASAA be passed into law.”)
Alliance for Academic Freedom, June 12, 2018: What’s Wrong With the Anti-Semitism Awareness Act [main drafters of the article are Kenneth Stern – who wrote the definition of anti-Semitism being abused in the ASAA, and David Greenberg]
LA Times Editorial Board, June 8, 2018: Enough already. Not all criticism of Israel is anti-Semitism.
ACLU, June 5, 2018: The Latest Attack on Free Speech in the Israel-Palestine Debate
ACLU, June 4, 2018: Letter to members of House/Senate articulating concerns about “Anti-Semitism Awareness Act”(S. 2940/H.R. 5924)
“…Federal law already prohibits anti-Semitic discrimination and harassment by federally-funded entities. The proposed legislation is therefore unnecessary — and likely to chill free speech of students on college campuses by incorrectly equating criticism of the Israeli government with anti-Semitism…“
Middle East Studies Association, June 4, 2018: Letter to House/Senate leaders expressing Concerns regarding the “Anti-Semitism Awareness Act of 2018”
Foundation for Individual Rights in Education (FIRE), May 29, 2018: New federal anti-Semitism act, same First Amendment problem
Arab American Institute, May 24, 2018: The Problems of the new Anti-Semitism Awareness Act [AAI letter to Congress is here]
Palestine Legal, May 24, 2018: Lawmakers Reintroduce Federal Bill Aimed at Censoring Palestine Advocacy on Campuses
Defending Rights & Dissent, May 24, 2018: Defending Rights & Dissent Calls on Congress to Reject Cynically Misnamed Bill Designed to Hamper Human Rights Advocacy
ACLU, May 23, 2018: ACLU Statement on Senate Introduction of ‘Anti-Semitism Awareness Act’
Foundation for Individual Rights in Education (FIRE), April 17, 2018: Problematic anti-Semitism bill passes in South Carolina
House Judiciary Committee Hearing Nov 7, 2017: Examining Anti-Semitism on College Campuses (full transcript) [See statement of Dr. Barry Trachtenberg, starting on page 11, including: “It is increasingly common to hear reports that a new anti-Semitism threatens to engender students on a scale not seen since the second World War and the Holocaust. Studies from several major organizations have sounded the alarm that anti-Semitism is a clear and present danger while a number of commentators have argued that yet another war against the Jews is upon us. However, they are motivated less by an actual threat facing American or world Jewry than they are part of a persistent campaign to thwart debates, scholarly research and political activism that is critical to the State of Israel.”]
Lara Friedman, February 20, 2017: Israeli Occupation Is Poisoning America’s Democracy
Kenneth Stern (lead author of anti-Semitism definition that people seek to make law) in NYT Dec. 12, 2016: Will Campus Criticism of Israel Violate Federal Law?
Kenneth Stern (lead author of anti-Semitism definition that people seek to make law) Dec. 6, 2016: Letter sent to House Judiciary Committee
Los Angeles Times, Dec. 6, 2016 (editorial): Undermining free speech on campus
Los Angeles Times, Dec. 6, 2016 (op-ed by Liz Jackson): The Anti-Semitism Awareness Act would damage free speech rights on campus
Defending Rights & Dissent, Dec. 6, 2016: Senate Passes Bill Aimed at Silencing Pro-Palestinian Activism on Campuses
December 5, 2016: ACLU letter to House and Senate – Oppose H.R. 6421/S. 10, the Anti-Semitism Awareness Act of 2016
(Excerpt: “…It cannot and must not be that our civil rights laws are used in such a way to penalize political advocacy on the basis of viewpoint. Eliminating truly anti-Semitic conduct should be a goal of our entire society. Indeed, we should all actively involve ourselves in encouraging our brothers and sisters to refrain from anti-Semitic conduct and speech. It is offensive and harmful. But the First Amendment prevents the federal government from using its great weight to impose severe penalties on a person simply for sharing a political viewpoint critical of Israel. Indeed, First Amendment protections are most important when speakers take controversial or unpopular positions that might arouse strong feelings, passions, and hostility.2H. R. 6421/ S. 10 could result in such impermissible penalties on controversial speech and the bill must therefore not be allowed to pass in that form…“)
The Forward, Dec. 5, 2016: Free Speech Advocates Warn that Anti-Semitism Bill Could Make Activism a Civil Rights Violation
Civil Society Groups’ letter to Chair/Ranking member of House Judiciary Committee, Dec. 5, 2016: Re: First Amendment concerns with Anti-Semitism Awareness Act (signed by Palestine Legal, Center for Constitutional Rights, National Lawyers Guild, US Campaign for Palestinian Rights, Jewish Voice for Peace, American-Arab Anti-Discrimination Committee, Bill of Rights Defense Committee and Defending Dissent Foundation, Friends Committee on National Legislation, and American Muslims for Palestine)
Foundation for Individual Rights in Education (FIRE), September 14, 2015: University of California Considers Yet Another Proposal to Silence Protected Speech
Eugene Volokh in WaPo August 31, 2015: The University of California, ‘microaggressions,’ and supposedly anti-Semitic criticism of Israel [“What is the right view and what is the wrong view of the conflict in the Middle East should be a matter for academics and students to debate, without the university condemning one side as bigots — which, as with the ‘microaggressions,’ sends a strong message to untenured faculty members, graduate students and others that they had better not say certain things…When the UC administration makes broad pronouncements on this subject, those pronouncements aren’t just people’s opinions, academic or otherwise — they are an implicit push toward an orthodoxy on the subject.”]
Kenneth Stern (lead author of anti-Semitism definition that people seek to make law) in Jewish Journal, June 11, 2015: Should a major university system have a particular definition of anti-Semitism?
Foundation for Individual Rights in Education (FIRE), May 22, 2015: State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses [including extensive background & legal analysis)
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Resources on “Israel Anti-Boycott Act” & Related Efforts
Lara Friedman analysis
January 14, 2020: The NEW Israel Anti-Boycott Act – what it actually says/does
March 19, 2018: U.S. Politicians Are Backing a Free Speech Exception for Israel — & Creating a Template for Broader Assault on the First Amendment.
March 5, 2018: What would the [“SOFTENED”] Israel Anti-Boycott Act Actually Do? [redline laying out every change it would make in current law – Cardin amended text]
January 31, 2018: BDS Opponents Want Israel Held To A Lower Standard
Dec. 1, 2017: What would Israel Anti-Boycott Act Do? Read the Law for Yourself [redline laying out every change it would make in current law]
Sept. 21, 2017: The ‘Israel Anti-Boycott Act’ Explained (video)
Aug. 17, 2017: The Israel Anti-Boycott Act Is an Act of Political Persecution
The American Civil Liberties Union (ACLU)
January 12, 2024: ACLU letter to House members – Vote “No” on HR 3016, the IGO Anti-Boycott Act
[“[the bill] unconstitutionally targets political boycotts for criminal penalties. Although the ACLU does not take a position on particular boycotts of foreign countries, we stand firmly against anyinfringement of fundamental First Amendment rights, including the right to boycott. If the bill were to pass and take effect, we would consider challenging it in court. [emphasis added] Like the failed Israel Anti-Boycott Act before it, H.R. 3016 proposes to amend the Export Administration Act (EAA), a federal law that prohibits U.S. persons from complying with boycotts fostered or imposed by foreign governments. That law was passed in response to Arab League policies requiring U.S. companies to boycott Israel as a condition of doing business in Arab League states. H.R. 3016 would apply EAA’s restrictions to calls for boycott by international governmental organizations, such as the United Nations and the European Union. At first glance, these alterations may seem relatively minor. In fact, H.R. 3016 would turn the EAA on its head. Whereas the EAA was meant to protect American companies from economic coercion by foreign governments, H.R. 3016 would punish Americans for their purely voluntary, and constitutionally protected, participation in political boycott campaigns…”]
Dec. 3, 2018: ACLU Statement on S. 720, the Israel Anti-Boycott Act
[“Because the bill’s fundamental purpose violates the First Amendment, it cannot be rescued by its First Amendment savings clause. The clause states: “Nothing in this Act or an amendment made by this Act shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States.” Although the ACLU appreciates the sentiment expressed by this savings provision, it cannot override the bill’s plain terms, which primarily apply to political boycotts. See, e.g., Fisher v. King, 232 F.3d 391, 395 (4th Cir. 2000) (holding that generic savings clause could not override statute’s plain text). Even if the bill were susceptible to alternative interpretations, members of the public should not be forced to predict — on pain of criminal financial penalties — whether a court would agree that the First Amendment protects their boycott participation. This “attempt to charge people with notice of First Amendment case law would undoubtedly serve to chill free expression.” Long v. State, 931 S.W.2d 285, 295 (Tex. Ct. Crim. App. 1996).“]
July 10, 2018: ACLU Letter to House of Representatives Opposing Revised Version of Israel Anti-Boycott Act [“…Though the bill has been completely rewritten in recent weeks in response to widespread criticism of its restrictions on freedom of speech and belief, the key provision of the bill would still impose civil and criminal liability on Americans’ who engage in or otherwise support certain political boycotts. We urge leadership to remove this highly controversial measure from the suspension calendar and we urge all members to vote against this matter as an unconstitutional infringement of core political speech rights.“(emphasis in the original).
March 7, 2018: The New Israel Anti-Boycott Act Is Still Unconstitutional
March 6, 2018: ACLU letter to Chair/Ranking Member of Senate Banking Committee on REVISED version of S. 720 (“The ACLU therefore continues to oppose the bill as an infringement of fundamental First Amendment rights. If the bill were to pass in its revised form and take effect, we would consider challenging it in court…“)
March 6, 2018: ACLU Opposes [revised] Federal Bill Aimed at Boycotts of Israel as Free Speech Violation
July 26, 2017: ACLU blogpost, How the Israel Anti-Boycott Act Threatens First Amendment Rights. [Related: Eugene Volokh (free speech legal expert) in WaPo 7/25: There’s no First Amendment right to engage in anti-Israel boycotts — but there is a right to call for such boycotts]
July 24, 2017: ACLU op-ed in Washington Post, This piece of pro-Israel legislation is a serious threat to free speech
July 20, 2017: ACLU blogpost, “The First Amendment Protects the Right to Boycott Israel”
July 17, 2017: ACLU Letters to the House and Senate Opposing Israel Anti-Boycott Act – HR 1697 and S 720
(Excerpts: “…the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.” And “…the bill would punish businesses and individuals based solely on their point of view. Such a penalty is a direct violation o the First Amendment.” And “...H.R. 1697 [S. 720] seeks only to punish the exercise of constitutional rights...”)
Congressional Research Service
Aug. 25, 2017: Report – Arab League Boycott of Israel
excerpt: “Extending existing U.S. antiboycott measures to incorporate the BDS movement raises several challenges. To the extent a U.S. organization may participate in the BDS movement, it would not appear to violate existing federal antiboycott legislation, which targets organizations’ participation in foreign boycotts. Foreign states do not directly participate in the BDS movement, and the movement does not have a secondary tier targeting companies that do business in or with Israel. It appears, rather, to essentially be an informal grouping of civil society organizations —originating among Palestinians but subsequently expanding into other countries—making common cause rather than exercising economic pressure on companies to participate. U.S. legislation similar to the 2011 Israeli “Anti-Boycott Law,” which instituted civil penalties for Israeli citizens who organize or publically endorse boycotts against Israel, would probably be vulnerable to challenge on free speech (First Amendment) grounds.“
US Campaign For Palestinian Rights (USCPR)
USCPR, June 27, 2018: Royce Amendment to Israel Anti-Boycott Act Is Still Unconstitutional
Amnesty International
August 3, 2017: Can the ‘Israel Anti-Boycott’ Bills Be ‘Fixed’?
Excerpt: “Can the ‘Israel Anti-Boycott’ bills that are being introduced in the Senate (S. 720) and in the House of Representatives (HR1697), somehow be ‘fixed’? The answer is ‘No’. In addition to the infringement on a person’s rights to freedom of expression and association, including the right to protest using non-violent action that others have mentioned as concerns, both pieces of legislation go directly against the U.S. government’s obligation under international law to not recognize or assist an illegal situation.”
July 28, 2017: Letters opposing S. 720 and HR 1697 – to Senator Cardin (D-MD) and Congressman Roskam (R-IL).
Excerpt: the bills would “directly violate U.S. legal obligations to respect and protect freedom of expression and association guaranteed by the International Covenant on Civil and Political Rights” and “would violate U.S. legal obligations under the Fourth Geneva Convention, by implying recognition of and facilitating an illegal situation [by normalizing settlements].”
Palestine Legal (et al)
Sept. 19, 2018: 100+ Groups Continue to Oppose Amended – but Still Unconstitutional – Israel Anti-Boycott Act (Updated) [memo laying out substantive legal & Constitutional objections is here]
June 26, 2018: Amended – but Still Unconstitutional – Israel Anti-Boycott Act Approved by House Committee
August 9, 2018 (updated Jan. 3, 2018): Oppose the Israel Anti-Boycott Act [“One hundred national and local civil and human rights organizations endorsed a joint statement to members of Congress expressing strong opposition to the Israel Anti-Boycott Act and calling on lawmakers to reject – rather than amend – the bill.”…] [memo laying out substantive legal & Constitutional objections is here]
The CATO Institute
July 22, 2017: Senate’s Israel Anti-Boycott Act Has Good Intentions, but Bad Results [excerpt: “By punishing boycott participation grounded in political belief, it would infringe on individual liberty.”]
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Resources on Legislation in US States to Outlaw Israel/settlement boycotts
The American Civil Liberties Union (ACLU)
ACLU Podcast Jan. 18, 2019: A Wave of Laws Target Boycotts of Israel (ep. 29) – transcript; overview
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GEORGIA CASE (Martin v. Wrigley et al)
June 22, 2023: Ruling of 11th Circuit Court of Appeals on Martin’s appeal of lower court giving “qualified immunity” to some of the people she was suing — the 11th Circuit declined to overturn. The Court, with this ruling, in no way concluded that the GA law is constitutional. Rather, the Court merely concluded that Martin failed to meet the requirements to overcome the prior court’s granting of “qualified immunity” to the defendants in question – requirements that center on Martin demonstrating that the GA law is “obviously” unconstitutional — the idea being that qualified immunity is invalidated if the defendants acted in a manner that they manifestly knew or should have known was unconstitutional. As a reminder, the Court ruling under appeal here likewise did NOT involve a ruling that the GA law is constitutional; rather, it merely ruled that these specific defendants enjoyed qualified immunity. [or in the words of legal expert Eugene Volokh (who generally supports the anti-boycott laws), the question of the GA law’s constitutionality, “yesterday’s Eleventh Circuit decision by Judges Wilson, Branch, and Luck in Martin v. Chancellor avoids the question.“
Feb 6, 2022: VIDEO – Abby Martin’s update on her case [after the GA legislature modified GA’s law to only apply to larger companies & larger contracts, in effect leaving the law in place but making it no longer apply to Martin] – “In 2021, CAIR achieved a major victory on behalf of journalist Abby Martin when a district court held that Georgia’s law requiring the oaths was unconstitutional. However, the court dismissed the claims against the specific GSU officials who enforced the unconstitutional contract oath on qualified immunity grounds. The rest of the case was eventually mooted by a legislative amendment signed by Governor Brian Kemp that attempted to protect the law from judicial review by excluding individual plaintiffs like Martin. CAIR is appealing the qualified immunity dismissal against the individual defendants.“
Nov. 7. 2022: CAIR Files Federal Appeal Against Officials Who Implemented Georgia’s Anti-BDS Law [text of appeal]
***May 21, 2021: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION – ruling that the GA anti-boycott law is unconstitutional*** Also see: Press release 5/24 – CAIR & PCJF Win ‘Major Victory’ in Federal Lawsuit Against Georgia’s Anti-Israel Boycott Law; Court Rules Anti-BDS Law Violates the First Amendment; Federal judge says Georgia’s anti-BDS law violates First Amendment (The Hill, 5/24); Want Your Honorarium? Sign an Anti-BDS Pledge First (Insider Higher Ed, 5/26)
February 10, 2020: Official complaint – Abby Martin v. Steve Wrigley, Chancellor, for the Board Of Regents of the University System of Georgia, in his Official Capacity; and Kyle Marrero, President of Georgia Southern University, in his Official Capacity
February 19, 2020: CAIR press release on case – Civil Rights Groups [CAIR Legal Defense Fund and the Partnership for Civil Justice Fund] Announce Free Speech Lawsuit Against Georgia’s Unconstitutional ‘Israel Boycott’ Law
January 10, 2020: Twitter thread by Abby Martin with background to the case [“After I was scheduled to give keynote speech at an upcoming @GeorgiaSouthern conference, organizers said I must comply w/ Georgia’s anti-BDS law & sign a contractual pledge to not boycott Israel. I refused & my talk was canceled. The event fell apart after colleagues supported me…]
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TEXAS CASE #4 (Abdullah v. Paxton et al)
Court of Appeals ruling 4/11/23 (case dismissed based on argument that plaintiff lacked standing to challenge the law) – (misleadingly) framed as advocates of the law as the court validating the law’s constitutionality – see: US court rejects challenge to Texas anti-BDS law over lack of standing (Jerusalem Post)
Report & Recommendation from US Magistrate Judge 11/8/21 (recommending that the case be dismissed based on argument that plaintiff lacked standing to challenge the law)
Austin-American Statesman 12/24/20: Former Travis County employee sues Ken Paxton, challenging anti-Israel boycott law – text of lawsuit filed 12/23/20
TEXAS CASE #3 (A&R Engineering and Testing Inc. v. City of Houston, 4:21-cv-03577, U.S. District Court for the Southern District of Texas)
Louis D. Brandeis Center 4/21/22: Brandeis Center Warns Lower Court’s Ruling in Texas Anti-BDS Law Jeopardizes State Authority to Prevent Discrimination, Urges Federal Appeals Court to Reverse Decision [text of amicus brief]
***Jan. 28, 2022: BREAKING NEWS: CAIR Welcomes Federal Judge’s Ruling That Texas Anti-BDS Law Violates Client’s Free Speech Rights; Also see: Court Ruling 1/28/22***
Nov. 1, 2021: Texas Sued by Houston Contractor Over Ban on Israel Boycotts (Bloomberg)
Nov. 1, 2021: Houston businessman sues Texas over a statewide ban on contractors boycotting Israel (Houston Public Media)
Oct. 29. 201: Official complaint – A&R Engineering and Testing Inc. v. City of Houston, filed with the CAIR Legal Defense Fund
TEXAS CASE #1 (Amawi v Pflugerville Independent School District et al)
December 16, 2018: Official complaint – Bahia Amawi v Pflugerville Independent School District & Ken Paxton, in his official capacity as Attorney General of Texas, filed with the CAIR Legal Defense Fund
(see below for further info)
TEXAS CASE #2 (Pluecker, Dennar, Abdelhadi, Hale v. Paxton)
June 1, 2022: ACLJ Files in Federal Appeals Court in Defense of Israel’s Interests and Anti-BDS Laws (Amicus brief)
April 4, 2022: Texas asks Fifth Circuit to nix fees awarded to opponents of pro-Israel law
Dec. 18, 2018: Anti Boycott Complaint – COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PRELIMINARY STATEMENT
Dec. 18, 2018: Pluecker, Dennar, Abdelhadi, Hale v. Paxton
Dec. 18, 2018: ACLU of Texas Files First Amendment Challenge to Anti-Boycott Law
Jan. 15, 2019: Defendant Ken Paxton’s Omnibus Response to Plaintiffs’ Motions for Preliminary Injuction
Jan. 29, 2019: Plueker Plaintiff’s Reply to Paxton’s Response to Preliminary Injunction
March 29, 2019: Hearing in Texas Court (transcript) [key quote on question of whether the law is an antidiscrimination measure, THE COURT: “No. In fact, it’s — it’s not. It in fact [if one is going to argue that politically -motivated boycotts are a form of discrimination, rather than political free speech], by inference, allows discrimination against anyone except Israel…you can discriminate against anyone on the basis of national origin except one country — people of one country. That’s not an antidiscrimination statute. That’s an ‘antidiscrimination against a specific country’ statute…” and in response to argument that the State has latitude in defining its interests in antidiscrimination laws, THE COURT: “That’s right. But interests look to be a preference to a particular country rather than what you wouldlike to describe as antidiscriminatory. It’s a preferential statute; it’s not an antidiscrimination statute.”]
***April 25, 2019: BREAKING: CAIR Wins Landmark First Amendment Victory Striking Down Texas Anti-BDS Law
***April 25, 2019: Text of Texas Court ruling granting preliminary injunction against anti-boycott law***
***April 25, 2019: ACLU: Court Rules Texas Anti-Boycott Law Unconstitutional***
NOTE: Following the Texas court ruling on Pluecker, Dennar, Abdelhadi, Hale v. Paxton, the Texas State Legislature amended the anti-boycott law to narrow its impact, in an apparent effort to get the Court to dismiss both the Plueker et al case and the Amawi case, on the grounds that the case is moot, as these plaintiffs no longer have standing in the case. In this way, the defendants appeared to hope to avoid a categorical ruling on whether the law, regardless if the narrowing of its scope, is a violation of free speech.
Subsequent to this change in the law, the Defendants in both the Plueker et al case and the Amawi case appealed (in a consolidated action) to the Court to dismiss both cases. In response, the plaintiffs in both cases appealed to the Court to reject both of those motions to dismiss. The judge ruled against dismissal:
***July 23, 2019: Texas Court ruling rejecting defendants’ motion to dismiss***
[“H.B. 793 does not ameliorate the constitutional defects the Court identified in its order granting Plaintiffs preliminary injunctive relief. All it does is limit its reach to fewer companies…Plaintiffs still have standing to challenge the statute, at the very least, ‘not because [Plaintiffs’] own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression,’ Broadrick, 413 U.S. at 612. And in any event, Plaintiffs own rights of free expression are still allegedly violated. The Court has found that Defendants have failed to show that it is ‘absolutely clear’ that Texas’s anti-BDS law will not apply expressly to Plaintiffs in the future…This means that Plaintiffs’ speech remains chilled. …(constitutional right to freedom of expression is “penalized and inhibited” if the government “could deny a benefit to a person because of his constitutionally protected speech or associations”) (emphasis added).”]
Also see CAIR press release/background.
Following the judge’s decision against dismissing the suit, the defendants moved to the Court of Appeals, filing briefs requesting that the case be set for oral arguments (i.e., urging that they be allowed to again make their case that the law is constitutional and that the plaintiffs’ complaints are moot).
Aug. 30, 2019: Brief for State Appellants
Aug. 30, 2019: Brief of Appellants Trustees of the Klein Independant School District & Trustees of the Lewisville Independant School District
In anticipation of a hearing in the Court of Appeals, an array of groups filed Amicus Briefs in support of the boycott law & calling for case, once again under consideration by the Court on its merits, to be dismissed:
Sept. 3, 2019: Profs. Michael Dorf, Andrew Koppelman & Eugene Volkh
Sept. 5, 2019: Shurat HaDin-Israel Law Center
Sept. 6, 2019: 11 Constitutional & Business Law Professors
Sept. 6, 2019: The Brandeis Center
Sept. 6, 2019: American Jewish Committee
Sept. 6, 2019: Stand With Us
Sept. 6, 2019: The states of Arizona, Arkansas, Georgia, Indiana, Kansas, Missouri, Ohio, Utah, and West Virginia
In November 2019, there were further court filings in the case:
Nov. 4, 2019: Amawi Plaintiff’s and Pluecker Plaintiffs’ Joint Motion for Declaratory Judgment [“…’A determination of whether to grant declaratory relief is within the district court’s discretion.” Env’t Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d 507, 523 (5th Cir. 2016). The principal criteria for issuing a declaratory judgment are ‘(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ Concise Oil & Gas P’ship v. La. Intrastate Gas Corp., 986 F.2d 1463, 1471 (5th Cir.1993) (quoting 10A Charles Alan Wright, Arthur R. Miller & M. Kane). Here, entering a declaratory judgment will meet those criteria. A declaratory judgment will ‘serve a useful purpose in clarifying and settling the legal relations in issue’ because it will establish that Tex. Gov. Code § 227.001, and any ‘No Boycott of Israel’ clause is unconstitutional, which is the principal contested issue between the parties. Further, a declaratory judgment will afford relief from the controversy giving rise to the proceeding, because it will establish that Defendants’ efforts to force Plaintiffs to choose between their livelihoods and their First Amendment rights are unlawful. Familias Unidas, 544 F.2d at 191 (holding that a ‘a declaratory judgment [is] appropriate on the issue of the constitutionality of the past application’ of a statute); Alsager v. Dist. Court of Polk County, Iowa (Juvenile Div.), 518 F.2d 1160, 1165 (8th Cir. 1975)) (finding declaratory relief appropriate to determine constitutionality of state statute); Carico Investments, Inc. v. Texas Alcoholic Beverage Com’n, 439 F. Supp. 2d 733, 736 (S.D. Tex. 2006) (‘An allegation of the denial of rights guaranteed under specific constitutional provisions raises a question appropriate for review under the Declaratory Judgment Act.’)…Plaintiffs request that this Court issue a declaratory judgment that H.B. 89, codified at Tex. Gov. Code § 227.001 et seq., and any ‘No Boycott of Israel’ clause in any state or state agency contract is unconstitutional.”
Nov. 6, 2019: Plueker Plaintiffs’ Notice of Joinder in Amawi Plaintiff’s Motion for Permanent Injunction
Dec. 3, 2019: Brief of T’ruah and J Street as Amici Curiae in Support of Plaintiffs-Appellees
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ARKANSAS CASE (Arkansas Times LP v Waldrip)
Dec. 11, 2018: ACLU of Arkansas Files First Amendment Challenge to Law Targeting Anti-Israel Boycotts
-
- Dec. 11, 2018: Brief in Support re Motion for Preliminary Injunction & Declaratory Relief.pdf
- Dec. 11, 2018: Motion for Preliminary Injunction & Declaratory Relief.pdf
- Dec. 11, 2018: Complaint for Injunctive & Declaratory Relief.pdf
- Jan. 2, 2019: Why Should My Newspaper Pledge Not to Boycott Israel? By Alan Leveritt, Publisher, Arkansas Times
**Jan. 23, 2019: Judge rejects Arkansas Times suit on Israel boycott law; text of judge’s ruling is here**
4/8/19: Appellant’s opening brief (ACLU/Arkansas Times appeal to the Court, request for oral arguments) and Addendum
Amicus Briefs in support of Arkansas Times appeal:
4/15/19: First Amendment Scholars (article here; Also see 4/15/19: Arkansas Times joined in law challenge by friends of First Amendment [“Briefs are stacking up in support of the Arkansas Times’ challenge of a state law attempting to gag criticism of Israel.”] )
4/15/19: Institute for Free Speech and Foundation for Individual Rights in Education
4/16/19: American Friends Service Committee (AFSC), Israel Palestine Mission Network of the Presbyterian Church (USA), A Jewish Voice for Peace, US Campaign for Palestinian Rights, US Palestinian Community Network, US Campaign for the Academic and Cultural Boycott of Israel, and Friends of Sabeel North America
4/16/19: Council on American-Islamic Relations (CAIR) and Bahia Amawi
4/16/19: Center for Constitutional Rights (CCR) and Palestine Legal [CCR background document on the case is here; press release here]
4/30/19: J Street and T’ruah [press release is here]
4/30/19: Professor Lawrence Glickman
4/30/19: National Lawyers Guild and Project South
4/30/19: The Reporters Committee for Freedom of the Press and 15 Media Organizations [American Society of News Editors, Associated Press Media Editors, Association of Alternative Newsmedia, The Media Institute, Media of Nebraska, National Coalition Against Censorship, National Newspaper Association, The National Press Club, National Press Club Journalism Institute, National Press Photographers Association, Nebraska Broadcasters Association, North Dakota Newspaper Association, Radio Television Digital News Association, Reporters Without Borders, and Society of Professional Journalists] [press release; article]
May 31, 2019: Appellees’ brief (Defendants’ appeal to the court to affirm the District Court ruling)
Amicus Briefs in support of upholding Arkansas anti-boycott law:
6/11/19: Agudath Israel of America, The Union of Orthodox Jewish Congregations of America, and StandWithUS (press release is here)
6/5/19: Profs. Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh
6/5/19: Zachor Legal Institute (JPost article on Zachor brief)
6/6/19: The American Center for Lawand Justice (ACLJ)
6/6/19: American Jewish Community
6/6/19: Shurat Hadin−Israel Law Center
**2/12/2021: Ruling of the 8th Circuit on Arkansas Times vs Waldrip
Excerpt: “Considering the Act as a whole, we conclude that the term ‘other actions’ in the definition of ‘boycott Israel’ and ‘boycott of Israel’ encompasses more than ‘commercial conduct’ similar to refusing to deal or terminating business activities. Instead, the Act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel. As such, the Act restricts government, contractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne. Therefore, the Act imposes a condition on government contractors that implicates their First Amendment rights…
“Determining that the Act’s condition for contracting with Arkansas implicates the First Amendment does not end our analysis because not all such conditions are unconstitutional. A funding condition unconstitutionally burdens First Amendment rights where it ‘seek[s] to leverage funding to regulate speech outside the contours of the program itself.’ In response, the State asserts that because ‘boycotting Israel is not protected by the First Amendment, the certification is simply a truthful statement that ‘provide[s] the government with information.’ But this generalization is inconsistent with both the law and the text of the Act. Supporting or promoting boycotts of Israel is constitutionally protected under Claiborne, yet the Act requires government contractors to abstain from such constitutionally protected activity. Without any explanation of how this condition seeks to ‘define the limits of [the State’s] spending program,’ it can be viewed only as seeking to ‘leverage funding to regulate speech outside the contours of the program itself.’ Thus, the Act prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship ‘on its own time and dime.’ Such a restriction violates the First Amendment.”
Reactions to 2/12/21 court ruling:
- Arkansas Times: Arkansas Times wins challenge of state’s Israel boycott rule
- Zachor Legal Institute/Marc Greendorfer – Zachor Legal Institute Urges En Banc Review of Eighth Circuit Decision on Anti-Discrimination Law
- American Jewish Committee: AJC Dismayed By Court Ruling On Arkansas BDS Statute [“Arkansas can easily remedy the flaws in today’s decision both legislatively and administratively by limiting the statute and required contractor compliance certificate accordingly. AJC has already put into motion efforts to facilitate such changes.“]
- Reason/Eugene Volokh: The Eighth Circuit’s Narrow Decision About the Arkansas BDS Statute [“One provision has been invalidated, but the general ban on boycotts of Israel by most state government contractors still stands.“]
- 4/14/21: Arkansas Times – Noted: The state law meant to stifle anti-Israel boycotts remains in effect [“The Arkansas Times won a victory in February when the 8th U.S. Circuit Court of Appeals said it was an abridgment of free speech for the state to require people who do business with the state to sign a pledge not to boycott Israel or take a 20 percent cut in compensation instead of the pledge. The Times’ refusal to sign the pledge (though we have not written about the boycott issue) cost the publication an advertising contract with Pulaski Tech, a part of the University of Arkansas System. We sued the UA Board with the assistance of the ACLU. The victory is so far without meaning. The state continues to enforce the law.“]
***Arkansas Times 6/22/22: Arkansas Times loses challenge of state’s Israel boycott law; also see:
- text of ruling;
- Appeals court upholds Arkansas’ Israel boycott pledge law (Washington Post)
- celebratory press release from Zachor Legal
October 20, 2022: The ACLU files petitions the Supreme Court to hear the case of Arkansas Times LP v Waldrip (petition)
Amicus briefs supporting ACLU petition to the Supreme Court
- Oct. 26, 2022: Amicus Brief of Professor Lawrence Glickman in support of the ACLU’s petition for the court to hear the case of Arkansas Times LP v Waldrip
- Nov. 18, 2022: Amicus Brief filed to the Supreme Court by T’ruah, J Street, Americans for Peace Now, and Partners for Progressive Israel in support of the ACLU’s petition for the court to hear the case of Arkansas Times LP v Waldrip
- Nov. 18, 2022: Amicus Brief filed by First Amendment in support of the ACLU’s petition for the court to hear the case of Arkansas Times LP v Waldrip
February 21, 2023: SCOTUS denies Certiorari to in the case of ARKANSAS TIMES LP V. WALDRIP, MARK, ET AL [reminder: “A decision to deny certiorari does not necessarily imply that the higher court agrees with the lower court’s ruling; instead, it simply means that fewer than four justices determined that the circumstances of the decision of the lower court warrant a review by the Supreme Court.“]
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ARIZONA CASE (Jordahl v. Brnovich)
Dec. 7, 2017: Jordahl v. Brnovich — Complaint
Dec. 7, 2017: Memorandum in Support of Plaintiff’s Motion for Preliminary Injunction
Dec. 7, 2017: Free Speech Lawsuit Challenges Arizona Law Aimed at Anti-Israel Boycotts
Dec. 7, 2017: Jordahl v. Brnovich
Dec. 8, 2017: ACLU FILES 2nd LAWSUIT CHALLENGING LAWS SUPPRESSING BOYCOTTS OF ISRAEL [AND SETTLEMENTS]
Feb. 8, 2018: Amicus Brief (supporting boycott law) of Zachor Legal Institute
Feb. 9, 2018: Amicus Brief (supporting boycott law) of The Louis D. Brandeis Center
***Sept. 27, 2018: Preliminary Injunction Order, US District Court for AZ***
***Sept. 27, 2018: Federal Court Blocks AZ Law Aimed at Anti-Israel Boycotts***
Sept. 28, 2018: Laws Targeting Israel Boycotts Fail Again in Court
Jan. 17, 2019: Jordahl v. Brnovich — Answering Brief of Plaintiffs-Appellees
Jan. 24, 2019: Amicus Brief on Behalf of American History Professor Lawrence B. Glickman
Jan. 22, 2019: Amicus Brief on Behalf of Groups Participating in Boycotts of Israel (BRIEF OF AMICI CURIAE, AMERICAN FRIENDS SERVICE COMMITTEE, ISRAEL PALESTINE MISSION NETWORK OF THE PRESBYTERIAN CHURCH (USA), A JEWISH VOICE FOR PEACE, INC., US CAMPAIGN FOR PALESTINIAN RIGHTS, US PALESTINIAN COMMUNITY NETWORK, US CAMPAIGN FOR THE ACADEMIC AND CULTURAL BOYCOTT OF ISRAEL AND FRIENDS OF SABEEL NORTH AMERICA, IN SUPPORT OF PLAINTIFFS-APPELLANTS AND AFFIRMANCE)
Jan. 24, 2019: Amicus Brief on Behalf of the Center for Constitutional Rights and Palestine Legal
Jan. 24, 2019: Knight Institute Files Brief in Ninth Circuit on Behalf of Prominent Legal Scholars, Explaining that BDS Boycotts are Protected by the First Amendment [text of amicus brief is here; Knight Institute tweet: “NEW: Knight Institute files amicus brief on behalf of 13 prominent First Amendment scholars explaining that Arizona’s anti–BDS boycott law is unconstitutional.”]
[ALSO SEE: ARIZONA CASE (Bazian v. Arizona State University; Arizona Board of Regents; and Mark Brnovich, in his official capacity as Attorney General of Arizona, filed March 1, 2018, with the CAIR Legal Defense Fund – see statement here)]
May 9, 2019: Arizona asks court to lift injunction on ban regarding Israel boycotts [“In new legal filings Thursday, Assistant Attorney General Drew Ensign told the 9th U.S. Circuit Court of Appeals that the anti-boycott law that Judge Diane Humetewa found legally flawed is being replaced. He said that makes the case moot.”]
Jan. 6, 2020: US Court of Appeals, 9th Circuit – Court Memorandum (also here) [“…Because the Act no longer apples to Jordahl or his Firm, his claims for declaratory and injunctive relief are moot…” the memo offers no judgment on the Constitutionality of the underlying law.]
Jan. 7, 2020: Court lifts injunction that prevented Arizona from denying contracts to companies that boycott Israel [“…the 9th Circuit Court of Appeals did not address whether it was legal in 2016 for lawmakers to require companies to sign agreements that they will not engage in boycott of Israel as a condition of getting government contracts. That is what a trial judge had concluded in 2018. Instead, the judges said the Legislature has since amended the law so the requirement applies only to companies with 10 or more employees and the contract is worth at least $100,000. And what that meant is Flagstaff lawyer Mik Jordahl, who successfully challenged the law, was no longer affected by its terms and therefore lacked standing to sue. And that makes the case moot. Monday’s ruling does not mean the revised law is any more legal than the 2016 version. But the law remains in effect unless or until there is a new challenge.”]
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KANSAS CASE (Koontz v. Watson)
June 29, 2018: After Court Defeat, Kansas Changes Law Aimed at Boycotts of Israel
ACLU attorney Brian Hauss, who argued the issue in court, said, “Thanks to the court’s ruling, Kansas lawmakers have now scaled back this law, but it still runs afoul of the First Amendment. The appropriate response would have been to repeal the law in its entirety. While the changes reduce the number of people required to sign the anti-boycott certification, the fundamental purpose of the law — to suppress political boycotts of Israel and chill protected expression — remains unconstitutional.”
Jan. 31, 2018: Federal Court Prelim Ruling on KS boycott bill – key excerpts
Jan. 31, 2018: Kansas Star editorial Board –No, Kansas, you can’t ban contractors from boycotting Israel
***Jan. 30, 2018: In First, Judge Blocks Kansas Law Aimed at Boycotts of Israel***
***Jan. 30, 2018: Text of Federal Court Injunction blocking Kansas Boycott Law***
Nov. 30, 2017: Kansas Doesn’t Even Try to Defend Its Israel Anti-Boycott Law
Oct. 12, 2017: Kansas Won’t Let Me Train Math Teachers Because I Boycott Israel
Oct. 11, 2017: Challenge to Kansas Law Targeting Boycotts of Israel
Oct. 11, 2017: Koontz v. Watson – Complaint
Oct. 11, 2017: Memorandum in Support of Plaintiff’s Motion for Preliminary Injunction
Oct 11, 2017: In America, the Right to Boycott Israel Is Under Threat (also here)
Oct. 11, 2017: ACLU FREE SPEECH CASE CHALLENGES LAW AIMED AT ANTI-ISRAEL [AND ANTI-SETTLEMENTS] BOYCOTTS
===================
MARYLAND CASE (Saqib Ali c. Lawrence Hogan et al) [follow in real time here]
Jan 9, 2019: Saqib Ali v. Gov. Lawrence Hogan in his capacity as Governor of Maryland & Brian Frosh in his capacity as the Attorney General of Maryland, filed along with the CAIR Legal Defense Fund – see article here)
Jan. 22, 2019: Op-ed 1/22 in Baltimore Sun: Md. lawsuit: Punishing companies for boycotting Israel violates First Amendment rights – by Zainab Chaudry (CAIR), Dana Vickers Shelley (ACLU), & Nathan Feldman (Freedom to Boycott MD Coalition)]
March 11, 2019: Gov. Hogan et al file motion to dismiss
March 25, 2019: Ali response to Hogan motion to dismiss
April 8, 2019: Governor Hogan and Attorney General Frosh file Another Set of Responses on the Motion To Dismiss [Attorney General’s response, Governor’s response]
May 3, 2019: Ali Files Notice of Supplemental Authority (informing Court About Texas Ruling in a Similar Case)
August 1, 2019: U.S. District Court to Hear Oral Arguments in CAIR’s First Amendment Challenge to Maryland’s Anti-BDS Executive Order
===================
GENERAL
Oct. 20, 2017: If You’re Boycotting Israel in This Texas Town, Then No Hurricane Relief for You
Oct. 19, 2017: Texas City Tells People No Hurricane Harvey Aid Unless They Promise Not to Boycott Israel
April 18, 2017: Op-ed by former ACLU-MA Director of Education (1987-2013): Why 100 Massachusetts groups are defending the right to boycott
July 5, 2016: Letter to Members of the House Appropriations subcommittee Chair (Rep. Granger, R-TX) and Ranking Member (Lowey, D-NY): ACLU Letter Opposing Anti-BDS Amendments to House State-Foreign Operations
June 9, 2016: Statement regarding New York Executive Order: Cuomo’s BDS Blacklist Is an Affront to Free Expression
ACLU Letters to state lawmakers opposing anti-BDS legislation on constitutional grounds:
March 1, 2017: Maryland
Feb. 15, 2017: Minnesota
Jan. 31, 2017: Massachusetts
Jan. 2, 2017: Minnesota
Aug. 16, 2016: New Jersey
June 6, 2016: New Jersey
April 15 2016: California
April 5, 2016: New York
Feb. 26, 2016: Florida
Feb. 24, 2016: Iowa
Feb. 2, 2016: Virginia
June 16, 2015: Pennsylvania
March 25, 2014: Illinois (S J Res 59)
March 4, 2014: Illinois ( SB 3017)
Center for Constitutional Rights
March 9, 2018: WA Court Dismisses Seven-Year Lawsuit Over Boycott of Israeli Goods
February 2018: Missouri: Legislative Advocacy Opposing Anti-BDS Bills
September 2017: Massachusetts: Legislative Advocacy Opposing Anti-BDS Bills
February 2017: Legislative Advocacy Challenging Anti-BDS Bills
February 2017: CCR & other groups – HB 89 and SB 134 are Unconstitutional and Must be Opposed (Texas bills)
October 2016: Pennsylvania: Legislative Advocacy Opposing Anti-BDS Bills
September 2016: Frequently Asked Questions: California’s anti-BDS law–AB 2844
June 6, 2016: Groups Respond to Cuomo’s Unconstitutional Executive Action on BDS
May 4, 2016: Over 100 Groups Oppose Israel Boycott Blacklists
April 18, 2016: First Amendment concerns with H.B. 476
April 2016: Georgia: Legislative Advocacy Opposing Anti-BDS Bills
June 9, 2016: Cuomo BDS Executive Order Points in the Direction of Joseph McCarthy
American Association of University Professors
August 8, 2018: Statement On Anti-BDS Legislation and Universities (“…academic freedom ought not to be subordinated to political exigency; there will always be compelling political causes that will challenge the ideal of free and open scholarly exchange. It is precisely for this reason that our opposition to BDS is matched as resolutely by our opposition to these pledges, which are nothing short of an attempt to limit freedom of speech and belief. Indeed, they conjure the specter of loyalty and disclaimer oaths, mainstays of McCarthyism. The right of individuals to engage in political boycotts, and to come together collectively to support a boycott, has a long and storied history in American civil protests. At colleges and universities especially, where reasoned disagreement and debate should be the order of the day, demands that faculty and students forswear support for a peaceful protest are repugnant.“)
National Coalition Against Censorship
February 2, 2018: Between Boycotts and Special Interest Campaigns: the Chilling of Speech on Israel and Palestine
January 31, 2018: Anti-BDS Laws Move to Federal Courts | UPDATE: Victory for ACLU!
December 27, 2017: Anti-BDS Laws Move to Federal Courts
July 19, 2017: NCAC Criticizes Effort to Use NY ‘anti-BDS’ Law to Cancel Roger Waters Concerts; Update: Nassau Coliseum Stands by Waters’ Shows
May 2, 2017: Anti-Boycott Legislation Violates Free Speech Principles (re: Texas law)
April 4, 2016: Statement on A.8220-A (Lavine) and S.6086 (Gianaris); A.9036 (Weinstein) / S.6378-A (Martins) Proposed Acts to amend the state finance law and the retirement and social security law, regarding economic sanctions for engaging in politically motivated boycotts
March 15, 2016: NY Anti-BDS Bills Threaten First Amendment Rights; UPDATE 6/9/16: NY to Blacklist Businesses Engaged in Boycott
March 6, 2014: Two Wrongs Still Don’t Make a Right: AAUP, NCAC Slam Maryland Anti-Boycott Bill
Foundation for Individual Rights in Education (FIRE)
March 12, 2018: Arizona’s anti-BDS statute lands Arizona State University in federal court
February 13, 2018: Court strikes down Kansas BDS law
March 2, 2017: Minnesota bill targeting boycotts of Israel risks chilling campus speech
June 16, 2016: New York’s Problematic Student Organization Bill Dies
June 6,2016: New York Governor’s Blacklist of Pro-BDS Advocates Raises Concerns for Campus Speech
March 6, 2014: Two Wrongs Still Don’t Make a Right: AAUP, NCAC Slam Maryland Anti-Boycott Bill
February 3, 2014: Two Wrongs Don’t Make a Right: ASA Boycott and NY State Legislature Both Threaten Academic Freedom
Defending Rights & Dissent
February 27, 2018: Defending Rights & Dissent Joins Civil Rights and Human Rights Groups in Opposing Missouri Anti-Boycott Bill
February 12, 2018: Another Victory for the Right to Boycott, This Time In Massachusetts
February 6, 2018: In Victory for the Right to Boycott, Judge Issues Preliminary Injunction Against Kansas Anti-BDS Law
October 26, 2017: Defending the Right to Boycott in Maryland and Texas
October 12, 2017: Defending Rights & Dissent Statement on Legal Challenge to Kansas Anti-Boycott Bill
August 9, 2017: Defending Rights & Dissent Joins Civil and Human Rights Groups in Opposing Israel Anti-Boycott Act
July 21, 2017: Campaign to Defend the Right to Boycott Gains Steam
April 18, 2017: Grassroots Activists Score Yet Another Free Speech Victory in Maryland
March 17, 2017 (published jointly with the National Lawyers’ Guild): Anti-Boycott Bills Are Part of Wider Crackdown on Protest
March 13, 2017: McCarthyism in Maryland? Not on Our Watch!
March 13, 2017: Flurry of Anti-Free Speech Bills Passes New York State Senate
January 30, 2017: BORDC/DDF Joins Palestine Legal, Center for Constitutional Rights in Opposing Unconstitutional Bill in Virginia
January 24, 2017: BORDC/DDF Joins With Montgomery County Civil Rights Coalition in Sending Letter to Maryland General Assembly About Proposed Anti-Free Speech, Anti-BDS Bill
June 6, 2016: New York Governor Signs Unconstitutional Executive Order
February 4, 2016: What’s Up With Anti-BDS Legislation? [and Why Does BORDC/DDF Care?]
September 30, 2015: The Palestine Exception to the First Amendment
March 2, 2015: Free Speech As A Barrier to Trade? The Latest Anti-BDS Scheme
February 14, 2014: Anti-Boycott Bills Proliferate
Los Angeles Times Editorial Board
July 5, 2016 editorial: Boycotts of Israel are a protected form of free speech
Southwest Times Record (Arkansas)
July 8, 2018: You’re right to question Arkansas’ anti-boycott law [“…We appreciate those who have called the law into question and believe they are correct in the belief that the law may be an infringement on First Amendment rights. You don’t have to have an opinion on Israel or be a Republican or a Democrat to be concerned when states begin penalizing citizens for their political viewpoints or questioning someone about their beliefs before they’re allowed to be given a job contract. We hope others see the potential harm and legal issues that could arise from it.”]
California State Assembly & Senate Judiciary Committee Staff
June 20, 2016: Senate – Judiciary Committee staff memo on amendments made to the pending BDS/boycott legislation to address constitutional concerns
May 11, 2016: Assembly – Appropriations Committee staff memo laying constitutional concerns with pending BDS/boycott legislation and efforts to address them
April 19, 2016: Assembly – Judiciary staff memo laying out in detail concerns regarding unconstitutionality of pending BDS/boycott legislation
Harvard Law Review
May 10, 2016: “…the anti-BDS statute passed by South Carolina and those being considered by several other states are likely unconstitutional in nearly all of their applications.”
__________________________________________________
Resources on “Combating BDS Act”
February 6, 2019: Is the Anti-BDS Bill Constitutional? Yes, But… by Noah Feldman, Harvard law professor and former clerk to U.S. Supreme Court Justice David Souter. [Excerpt: “The law isn’t unconstitutional. But it implicitly endorses unconstitutional laws — and that is enough reason to oppose it.’]
February 5, 2019: ACLU Comment on Senate Passage of S.1 and Combating BDS Act
February 5, 2019: ACLU LETTER OPPOSING FINAL PASSAGE OF S. 1 (COMBATING BDS ACT)
January 28, 2019: ACLU Letter Opposing S. 1 (Combating BDS Act)
January 11, 2019: Lara Friedman/FMEP: Fact-Checking AIPAC’S Fact Sheet on The Combating BDS Act
January 11, 2019: National Coalition Against Censorship: Anti-BDS Legislation in Senate Disregards Free Speech
January 9, 2019: ACLU – Marco Rubio and His Colleagues Need a Refresher on the First Amendment
[“First Amendment rights belong to the people, not the government. The government cannot impose its views on people or punish them for expressing views that the government disagrees with. This principle applies to both individuals and companies doing business with the state, and with full force to politically motivated boycotts. Two federal courts recently affirmed this, blocking laws in Arizona and Kansas that penalized individuals and companies for boycotting Israel. And this principle was famously tested in the McCarthy era, when many state laws required government employees to declare they were not members of the Communist Party or other “subversive groups” in order to keep their jobs.”]
January 7, 2019: ACLU letter to the Senate: Vote “NO” on Cloture for S. 1 [which includes S. 170]
[“…states should not be sanctioning business on the basis of First Amendment-protected expression and association. This is especially true where the ideological position has no connection whatsoever with the business relationship at stake. Math teachers in Kansas and newspapers in Arkansas should not have to disavow participation in protected expression and association in order to do their jobs or engage in business relationships with the state; for contractors, this means penalizing their beliefs or advocacy by denying them work opportunities and income. With the Combatting BDS Act, Congress would be attempting to give legal cover to state laws imposing such unconstitutional requirements.” (emphasis added)]
January 7, 2019: Instead of Ending the Shutdown, Senators Plan to Encourage Punishment of Israel Boycotts
January 5, 2019: ACLU Comment on Inclusion of Anti-Boycott Bill in S.1
[“The ACLU takes no position on campaigns to boycott Israel or any other foreign country, but it has long defended the right to participate in political boycotts, which are a proud part of this country’s constitutional tradition and protected by the First Amendment.“]
Oct. 10, 2018: ACLU Statement on S. 170, the Combating BDS Act
[“S. 170 would condone state laws penalizing businesses and individuals who express support for a boycott, divestment, or sanctions (“BDS”) activities against Israel. It would prevent anyone barred from doing business with a state for participating in BDS activities from using a federal pre-emption argument to avoid state penalties. While the proposal is of questionable impact, its intent and the intent of the underlying state laws it purports to uphold are contrary to the spirit and letter of the First Amendment guarantee of freedoms of speech and association. Any attempt to advance the bill should be rejected…”]
May 10, 2018: ACLU Letter to Senate Banking, Housing, and Urban Affairs Committee on S. 170, the Combating BDS Act
[“We write today in opposition to S. 170, the ‘Combating BDS Act.’ We understand S. 170 may be marked up before the Senate Banking, Housing, and Urban Affairs Committee as early as the week of May 14. We also understand that the Committee may be presented with a revised draft that purports to adjust certain provisions to enhance procedural protections for those who may be subject to state sanction under laws the bill presumes to condone. Notwithstanding such changes, the American Civil Liberties Union considers the bill an improper inducement to states to pass legislation that unconstitutionally punishes those doing business with the state based solely on their sincerely held political beliefs. No amount of legislative tinkering can change that basic injustice and we urge you to oppose the bill and refuse to pass it out of committee.“]
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Other/General Resources on Efforts to Outlaw Israel/settlement boycotts
Palestine Legal
Resource page on Federal gag legislation is here.
Resource page on gag legislation in states is here.
The Anti-Defamation League
May 29, 2015: Op-ed by then-head of the ADL, Abraham Foxman, Comprehensive approach to fighting BDS is needed (“Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down.“)