Outside the Beltway

Federal Judge Strikes Down State Law Targeting Boycotts Aimed At Israel

For the second time this year, a Federal Court has struck down a state law designed to punish businesses that engage in a boycott aimed at Israel.

Doug Mataconis · Tuesday, October 9, 2018 · 5 comments

A Federal Judge in Arizona has ruled that states cannot punish private businesses that boycott Israel:

Mikkel Jordahl, a lawyer in Sedona, Ariz., can now choose to buy a different brand of printers.

No longer must he stick with Hewlett-Packard technology for fear of losing his contract with the state. For 12 years, he has provided legal advice to inmates in the Coconino County Detention Facility.

In his personal life, he avoids companies he considers complicit in Israel’s occupation of the Palestinian territories. His aim had been to extend his boycott to his one-person law office — for instance, refusing to purchase from Hewlett-Packard because its information technology services are used at Israeli checkpoints in the West Bank.

In his professional life, however, he was bound by a law, enacted by the Arizona legislature in 2016, requiring any business that has a state contract to certify that it was not boycotting Israel. He challenged the directive in court, claiming that it violated his First Amendment rights.

A federal judge in Arizona found merit in his complaint. U.S. District Judge Diane Humetewa issued an injunction last week, blocking enforcement of the measure, which compels any business contracting with the state to submit a written pledge that it was not involved in boycott activity targeting Israel.

At issue in the case is the specific obligation imposed in Arizona, but the ruling cast doubt on the constitutionality of broader government efforts to regulate boycott activity by private companies, even those that do business with the state.

“A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott,” Humetewa wrote in her opinion in Jordahl et al v. Brnovich et al.

The finding was the second this year to turn back a wave of state legislation using public money to deter anti-Israel activity. It is in line with a similar judgment in January, when a federal judge in Kansas ruled for the first time that enforcing a state provision requiring contractors to sign a no-boycott certification violated expressive rights guaranteed under the First Amendment. Similar provisions are on the books in more than a dozen states, including Maryland, Minnesota and South Carolina, according to the American Civil Liberties Union.

The ACLU challenged the legislation in both cases. Its success in protecting boycott activity in the courts is notable, as a bipartisan group of lawmakers pushes for federal legislation penalizing cooperation with boycotts sponsored by international governmental organizations. Even after modifications made by the bill’s Senate sponsors — Benjamin L. Cardin (D-Md.) and Rob Portman (R-Ohio) — the civil-liberties group argues that the measure would be unconstitutional.

The boycott issue took on new gravity this year as the Trump administration moved the U.S. Embassy to the contested city of Jerusalem, and as violence flared in Gaza. A central outlet for opposition to the Israeli state has been the movement known as BDS, for boycott, divestment and sanctions. It seeks the end of Israeli occupation of “all Arab lands,” the full equality of Arab-Palestinian citizens of Israel, and the “rights of Palestinian refugees to return to their homes and properties as stipulated in U.N. Resolution 194.”

The movement is contentious, and a range of legislation worldwide — some symbolic — has aimed to clip its wings. A particular flash point has been academic boycotts of Israeli universities, raising questions about free expression and open intellectual exchange.

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Jordahl argues that state regulation takes what should be a subject of vigorous civic debate and turns it into an opportunity for the state to enforce its own political agenda.

“Rational minds can disagree on whether the movement to boycott the occupation is effective or even appropriate. But do our Arizona legislators need to chip away at our First Amendment rights to express our opinions on this issue?” he wrote in the Arizona Daily Star. “By this logic, what would limit Arizona’s Legislature from deciding they won’t do business with people and companies that support a boycott of Trump family businesses, or tobacco companies, or even the Democratic Party?”

This isn’t the first Federal Court to strike down a state law attempting to restrict the ability of individuals and businesses from engaging in boycott activity aimed at Israel. As noted above, in January a Federal District Court in Kansas struck down a similar law in Kansas that sought to do precisely the same thing. Like the law in the Arizona case decided here, the Kansas law mandated that any business doing business with the state certify that it would not participate in any boycott aimed at Israel. Additionally, several members of Congress have in recent years attempted without success to adopt a similar law at the Federal level that would supplement a 1977 law aimed at a similar boycott movement that existed back in the 1970s. It is worth noting that this law withstood a court challenge after it was adopted. However, as I discuss below, there have been many developments in the Supreme Court’s First Amendment jurisprudence that call into question whether this ruling is good law at this point.

These laws, of course, are aimed at the so-called Boycott, Divest, and Sanctions Movement, or “BDS” for short, which seeks to persuade nations, international organizations, and corporations to stop doing business with Israel until that nation “meets its obligations under international law.” In recent years, the movement has become more controversial due to both its tactics and the rhetoric that it uses, which many have claimed has become increasingly anti-Semitic and anti-Israel. As a result, many states have adopted their own version of laws prohibiting government entities, as well as corporations and individuals doing business with the state from taking part in or advocating in favor of the boycott that the BDS movement is seeking to promote. Leaving aside for the moment the question of whether or not the claims that the BDS movement and its supporters make about Israel and its policies are accurate, or the more serious allegations that many of the people associated with the movement are anti-Semitic rather than simply being opposed to the current policies of the State of Israel, it seems clear that such laws are unconstitutional.

Based on existing First Amendment precedent, it seems clear that the Kansas law in this case, which also effectively requires someone in the Plaintiff’s position to engage in politically-motivated speech by signing an oath that they have not and will not engage in certain types of political activity, is unconstitutional. For example, in 1931 the Supreme Court held in Stromberg v. California that a California law barring the display of red flags in public was unconstitutional, ruling that peaceful conduct that was not disruptive of public order was “repugnant” to the Constitution. Fourteen years later, the Court ruled in West Virginia State Board of Education v. Barnette, that the First Amendment protected the rights of students who refused to take part in the recitation of the Pledge of Allegiance. In ruling in that case, Justice Robert Jackson noted that the very purpose of the Bill of Rights was to remove certain subjects, such as freedom of speech from “the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Some twenty-four years later, in Tinker v. Des Moines Independent Community School District, the Court held that a school district could not bar students from wearing black armbands to school to protest the Vietnam War. Two years after that, the Court ruled in Cohen v. California that a defendant could not be punished for wearing a jacket that said “Fuck the Draft” in a public place, saying that the act the law was aimed at punished “speech” rather than “conduct.” In 1989, the Court ruled in Texas v. Johnson that laws criminalizing burning the American flag were an unconstitutional abridgment of the First Amendment and that the burning of the flag constituted expressive conduct that was clearly within the boundaries of the First Amendment. More recently, the Court held in Snyder v. Phelps that the Westboro Baptist Church could not be punished for holding protests on public property outside the funerals of American soldiers who had died in Iraq or Afghanistan.

Finally, and perhaps most importantly, there is the Supreme Court’s ruling in NAACP v Claiborne Hardware. In this 1982 case, a unanimous Supreme Court ruled that states cannot prohibit peaceful political advocacy in favor of a boycott undertaken for political means. While the case is obviously a freedom of speech case, a good part of the Court’s opinion in Claiborne deals with a seemingly ridiculous argument in defense of the law that was made by the lawyers for a group that consisted of merchants in Port Gibson, Mississippi that were being subjected to a boycott by civil rights activists. That argument was that the organizers of the boycott were violating Mississippi’s equivalent of the Sherman Antitrust Act by diverting African-American customers of white-owned businesses to businesses owned by minorities. Additional claims against the boycott movement included claims of tortious interference with business relationships and violation of a state law barring so-called “secondary boycotts.” In its decision, the Court rejected those claims and ruled that the claims against the boycotters were protected by the First Amendment, holding that  “boycotts and related activities to bring about political, social and economic change are political speech, occupying “the highest rung of the hierarchy of First Amendment values.”

What all these cases add up to is the conclusion that behavior, such as engaging in a politically-motivated boycott, is clearly protected by the First Amendment. As an aside, it is worth noting that Eugene Volokh and Eugene Kontrovich, both of whom post at The Volokh Conspiracy on First Amendment issues have argued that anti-boycott laws such as those aimed at the BDS movement are constitutional. In his post, Volokh seeks to differentiate between advocating in favor of a boycott and actually engaging in one, arguing essentially that the first is constitutionally protected speech but the second is not. Kontrovich, meanwhile, makes the same attempt to draw a distinction between the presumably protected act of advocating for a boycott and the fact of actually participating in such a boycott, which he essentially contends is commercial activity that is not protected by the First Amendment. While both Volokh and Kontrovich are far more well-versed in First Amendment law than I am, it strikes me that the distinction they attempt to draw here is a distinction without a difference. The idea that it is protected speech to advocate for a boycott but not protected speech to participate in one essentially means that Americans are free to advocate for something that they can then be punished for participating in, an outcome which defies reason and logic. Additionally, given the Supreme Court’s ruling in Claiborne and the other cases cited above make clear that activity, including commercial activity such as a boycott, can be protected by the First Amendment as much as advocacy.

None of this means that the claims made by the BDS movement are accurate, or that the criticisms that have been directed at the movement are not accurate. However, the issue of whether or not Israeli policies toward Palestinians are correct or whether or not the BDS movement is anti-semitic, are not relevant to the legal questions that cases like this present. The sole questions for the courts to deal with is whether the states or the Federal Government can bar individuals and businesses from advocating for or engaging in such a boycott. As a matter of law, the answer to that question is eminently clear and that the laws in question are not permissible under the First Amendment.

Here’s the opinion:

Jordahl et all v. Brnovich … by on Scribd