Kansas Doesn’t Even Try to Defend Its Israel Anti-Boycott Law

Kansas officials are scheduled to appear in court tomorrow to defend a state law designed to suppress boycotts of Israel. There’s just one problem: The state quite literally has no defense for the law’s First Amendment violations.

The ACLU filed a lawsuit in October against a law requiring anyone contracting with the state to sign a statement affirming that they don’t boycott Israel or its settlements. We represent Esther Koontz, a math teacher who was hired by the state to train other teachers. Together with members of her Mennonite church, Esther boycotts Israel to protest its treatment of Palestinians. After she explained that she could not in good conscience sign the statement, the state refused to let her participate in the training program.

The law violates the First Amendment, which protects the right to participate in political boycotts. That right was affirmed by the Supreme Court in 1982, when it ruled that an NAACP boycott of white-owned businesses in Mississippi during the civil rights movement was a protected form of free expression and free association. But despite long-held consensus around the right to boycott, we were still pretty surprised when Kansas didn’t even try to argue the law is constitutional.

We asked for a preliminary injunction, which would immediately halt enforcement of the law and allow Esther to do the job she was hired for. In its response brief, Kansas doesn’t mention the First Amendment even once, even though the entire case turns on the myriad ways the law violates First Amendment rights. Instead, the government relies on a couple half-baked procedural arguments in an attempt to convince the court to leave the law in place for now.

First, Kansas argues that a preliminary injunction isn’t necessary because Esther could always receive monetary damages at the end of the lawsuit, should she win. But courts have long recognized that the government can’t use money damages to buy off the loss of First Amendment rights.

The government’s other argument is that the Kansas secretary of administration would have given Esther a waiver, had she sought one, exempting her from the requirement to refrain from boycotting Israel. But the government can’t neutralize legal challenges to blatantly unconstitutional laws by making one-off exceptions for the people who happen to file lawsuits. Even if Esther could have gotten a waiver, that wouldn’t help other Kansans affected by the law.

The Kansas law isn’t an aberration. Some two dozen states have laws or executive orders on the books designed to chill boycotts of Israel. (Two such executive orders, in Maryland and Wisconsin, were issued just this past October.) A similar law in Texas came under scrutiny when a municipality interpreted it to condition hurricane relief on a commitment not to boycott Israel. A separate federal bill threatens heavy sanctions against people who participate in certain international boycott campaigns against the country.

These laws share a common goal of silencing one side of an important political debate about a decades-old conflict. They simply can’t be squared with the right to free political expression. That must be why Kansas didn’t even bother trying.

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Anonymous

BDSAmerica will keep growing as long as Israel is a parasite on America. BDS is legal in the US and if Zionist parasites don't like it, get out of the US and go back to Israhell.

Anonymous

So, just means more laws that are potentially in violation of the Constitution - or being twisted into a Constitution-violating use.

And do you really consider Israel to be an "exceptional U.S. friend and ally" or do you just need them to fulfill your Second Coming fantasy? If you really do consider them an "exceptional U.S. friend and ally" don't you think that maybe they should try living up to that, rather than (still) using "never again" as an excuse to play out their worst instincts?

Anonymous

Hey, ACLU! I've always been highly skeptical of your organization, thanks to the whole founded-by-subversive-Communists-to-destroy-us thing. But I will actually become a donor if you really fight these criminal Zionist freaks trying to control Americans and WIN IT ALL. Put your lawfare skills to good use!

Edward Huguenin

The Supreme Court established the first principle in NAACP v. Claiborne Hardware Co. “In Claiborne Hardware we held that the First Amendment protected the nonviolent elements of a boycott of white merchants organized by the NAACP”. The holding of Claiborne Hardware categorically extends First Amendment protection to political boycotts, even if most of the opinion is spent discussing the individual elements of the boycott.
In that case, the Court reviewed a state tort claim against a local NAACP chapter that had organized a boycott of white-owned businesses to pressure city officials to meet a number of demands for racial equality and integration.
The Court recognized that political boycotts involve a range of expressive activity and rely on the First Amendment freedoms of “speech, assembly, association, and petition.” The Court observed that the organizers of the Claiborne Hardware boycott launched their campaign at a public meeting, sought to influence the behavior of public officials, supported their cause with speeches and picketing, and encouraged others to join.
And because political boycotts are directed at issues of public concern, they are protected activities that “rest on the highest rung of the hierarchy of First Amendment values.”

Anonymous

Judgment Day | Judgment Day 18 January 2018

John King

I think what the ACLU is doing with this issue is fantastic. How dare the political class enforce a loyalty oath to a foreign country! Unfortunately the law in my home state of Indiana does not mention individuals. Otherwise I would have broke it yesterday. No forced patriotism to Israel !!

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