Constitutionality Issues & BDS Legislation: Source Docs & Expert Views

Resource

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 on 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.

All of these efforts are problematic, both because of the conflation of Israel and settlements, and because of the brazen unconstitutionality of this legislation.

Below is a compilation (to be updated as new resources appear) of expert opinion/analysis regarding the constitutionality/free speech concerns raised by this legislation.


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

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]

February 20, 2017: Israeli Occupation Is Poisoning America’s Democracy

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

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Resources on “Anti-Semitism Awareness Act” & Related Efforts

NJ Star Ledger editorial board Sept. 24, 2018: Trumped-up anti-Semitism charges at Rutgers designed to chill free speech

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

Lara Friedman, February 20, 2017: Israeli Occupation Is Poisoning America’s Democracy

Erwin Chemerinsky & Howard Gillman in the Wall Street Journal, Dec. 15, 2016: A Bill to Police Campus Speech – Senate legislation aimed at anti-Semitic speech runs afoul of the First Amendment. [“If passed by the House and signed into law, it would encourage the Education Department to further punish constitutionally protected free speech at colleges and universities…Schools can prevent and punish threats, harassment and destruction of property, but never the expression of views. Yet this bill would require the Education Department to focus on exactly that: the ideas expressed on campus. And the bill covers more than simply hateful speech toward Jewish students. It could include criticizing Israeli policies or arguing against the existence of Israel, speech that is protected by the Constitution.

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

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]

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)

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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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)

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

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ARKANSAS CASE (Arkansas Times LP v Waldrip)

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

Dec. 11, 2018: ACLU of Arkansas Files First Amendment Challenge to Law Targeting Anti-Israel Boycotts

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

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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

October 12, 2018: BRIEF OF AMICI CURIAE – THE STATES OF MISSOURI, NEVADA, TEXAS, GEORGIA, KANSAS, ARKANSAS, OHIO, WEST VIRGINIA, AND INDIANA IN SUPPORT OF APPELLANTS’ MOTION FOR STAY PENDING APPEAL

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)]

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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

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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

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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

March 2, 2018: N.Y. Senate revives wildly unconstitutional bill barring funding of student organizations involved in ‘hate speech,’ ‘intolerance,’ or promotion of boycotts of Israel or U.S. allies

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 14, 2016: New York Bill Would Bar Funding to Student Organizations Involved in ‘Hate Speech,’ ‘Intolerance,’ or Encouraging Boycotts of Israel and Other Nations

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.”

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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.“)