Third Federal Court Blocks Anti-BDS Law as Unconstitutional

AUSTIN — A federal court in Texas today blocked a state law requiring government contractors to certify that they are not engaged in boycotts of Israel or companies that do business in Israel or territories controlled by Israel, ruling that the law violates the First Amendment. The ruling came in a case brought by the American Civil Liberties Union and the ACLU of Texas on behalf of four Texans, as well as a separate case brought by the Council on American-Islamic Relations.

“This is now the third time a federal court has blocked an anti-BDS law on First Amendment grounds,” said Brian Hauss, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Whatever their views on the BDS movement, members of Congress and state legislators should heed this strong message from the courts: The right to boycott is alive and well in the United States and any attempt to suppress it puts you squarely on the wrong side of the Constitution.”

The ACLU’s lawsuit was brought on behalf of four people who were forced under the law to choose between signing the certification or forgoing professional opportunities and losing income: John Pluecker, a freelance writer who lost two service contracts from the University of Houston; George Hale, a reporter for KETR who was forced to sign the certification against his conscience in order to keep his job; Obinna Dennar, a Ph.D. candidate at Rice University, who was forced to forfeit payment for judging at a debate tournament; and Zachary Abdelhadi, a student at Texas State University, who has had to forego opportunities to judge high school debate tournaments.

In his ruling, United States District Judge Robert Pitman stated that the law “threatens ‘to suppress unpopular ideas’ and ‘manipulate the public debate through coercion rather than persuasion’” and that “no amount of narrowing its application will cure its constitutional infirmity.”

Federal courts in Arizona and Kansas also blocked similar state anti-boycott laws in First Amendment challenges brought by the ACLU and ACLU affiliates in the respective states. In January 2018, a federal district court preliminarily enjoined an anti-boycott law in Kansas, holding that the First Amendment protects citizens’ right to “band together” and “express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens.” In September, a district court enjoined a similar anti-boycott law in Arizona.

The ACLU takes no position on boycotts of Israel or of any other foreign country, but it has long defended the right to boycott, which is protected under the First Amendment.

The court’s opinion can be found here: https://www.aclutx.org/sites/default/files/4-25-19_bds_order.pdf.