Federal Court Prelim Ruling on Kansas Israel-focused Gag Law – key excerpts


When it comes to the wave of Israel/settlements-focused anti-boycott bills laws being considered and adopted in state legislatures (and by executive orders), many people – including many ostensibly progressive politicians – thus far seem profoundly resistant to fact that they are brazenly unconstitutional. This, despite powerful expert legal analysis from the ACLU and other organizations devoted to free speech issues.

It is in this context that the ruling handed down by a federal court judge on Jan. 30, 2018, granting an injunction against the anti-boycott gag law enacted by the state of Kansas, is a welcome corrective. The ruling is detailed, comprehensive, unambiguous, & devastating. It should be read in full by those concerned with the issue of free speech and anti-boycott legislation linked to Israel and settlements.

That being said, people are busy and many certainly won’t have time to read ruling itself. With that in mind, below are highlights:

Is plaintiff likely to succeed on the merits of her claim?

“…Plaintiff has met her initial burden. The First Amendment protects the right to participate in a boycott as the Supreme Court held explicitly in NAACP v. Claiborne Hardware Co. 458 U.S. 886, 907 (1982).

“The conduct prohibited by the Kansas law is protected for the same reason as the boycotters’ conduct in Claiborne was protected…”

“The court concludes that plaintiff has carrier her burden on the current motion to establish that she and others are engaged in protected activity”

Footnote: “In some respects, the issue here is easier than the one in Claiborne…To say it simply, the boycott here does not present any of the complicating facts present in Claiborne.”

“When evaluating whether a law serves a compelling governmental purpose, a court must inquire into the circumstances of the law’s enactment… The Kansas Law’s legislative history reveals that its goal is to undermine the message of those participating in a boycott of Israel, This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel. Both are impermissible goals under the First Amendment.”

“The Kansas Law also aims to minimize any discomfort that Israeli businesses may feel from boycotts. This, too, is an impermissible goal.”

On using Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) to defend the constitutionality of the Kansas law:

“The court finds defendant’s reliance on Rumsfeld misplaced.”

“In sum, the court holds that plaintiff is likely to succeed on the merits.”

On the question of irreparable harm if the court does not grant an injunction:

“The Supreme Court has squarely decided this point. ‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”

On using Elrod v. Burns, 427 U.S. 347, 373 (1976) to argue against “irreparable harm”:

“While this argument has pragmatic appeal, it is not one the First Amendment will abide… This is so because “[t]he timeliness of political speech is particularly important….”

On defendant claiming again that harm is not imminent:

“…defendant’s argument focuses on the wrong harm. Plaintiff’s harm stems not from her decision to refuse to sign the certification but from the plainly unconstitutional choice Kansas Law forces her to make: She either can contract with the state or she can support a boycott of Israel. Her harm is ongoing because Kansas Law is currently chilling plaintiff’s and others putative contractors’ free speech.”

On the question: Does plaintiff’s irreparable harm outweigh any harm defendant will sustain if the court grants the preliminary injunction?

“…the court finds that the continuing harm to plaintiff’s First Amendment rights – and those of persons similarly situated – outweighs defendant’s speculative suggestion that an injunction will harm him, the state of Kansas, or Kansas merchants.”

On the question: Is the requested injunction adverse to the public harm?

“…the court has already concluded that it is highly likely that the Kansas Law is invalid and thus enjoining it will protect a constitutional right…”