The Right to Boycott Is Under Threat

This article was originally published at Haaretz.

The First Amendment squarely protects the right to boycott. Lately, though, a legislative assault on that right has been spreading through the United States –  designed to stamp out constitutionally protected boycotts of Israel.

In a landmark decision from 1982, the Supreme Court ruled that an NAACP boycott of white-owned businesses in Mississippi, to protest segregation and racial injustice, was a protected form of free association and free expression. As the court recognized, political boycotts empower individuals to collectively express their dissatisfaction with the status quo and advocate for political, social, and economic change. These are precisely the freedoms the Constitution is meant to protect.

Yet over the past several years, state and federal legislatures have considered dozens of bills, and in some cases passed laws, in direct violation of this important ruling. These bills and laws vary in numerous respects, but they share a common goal of scaring people away people from participating in boycotts meant to protest Israeli government policies, including what are known as Boycott, Divestment, and Sanctions (BDS) campaigns.

Today, the ACLU filed a lawsuit challenging one of those laws — a Kansas statute requiring state contractors to sign a statement certifying that they do not boycott Israel, including boycotts of companies profiting off settlements in the occupied Palestinian territories. People have very strong feelings on all sides of this issue. The ACLU takes no position for or against campaigns to boycott Israel or any other foreign country, but we have long defended the right to participate in political boycotts. We must do so again.

We are representing a veteran math teacher and trainer from Kansas who was told she would need to sign the certification statement in order to participate in a state program training other math teachers. Our client is a member of the Mennonite Church USA. In response to calls for boycott by the church and members of her congregation, she has decided not to buy consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories. Our client is boycotting to protest the Israeli government’s treatment of Palestinians and to pressure the government to change its policies.

Earlier this year, our client was selected to participate as a contractor in a statewide training program run by the Kansas Department of Education. She was excited to use her skills to help train math teachers throughout the state, but when she was presented with a form requiring her to certify that she “is not currently engaged in a boycott of Israel,” she told the state that she could not sign the form in good conscience. As a result, the state refuses to let her participate in the program.

Kansas’s law, and others like it, violates the Constitution. The First Amendment prohibits the government from suppressing one side of a public debate. That means it cannot impose ideological litmus tests or loyalty oaths as a condition on hiring or contracting. 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. The ACLU successfully challenged many of those laws on constitutional grounds, and anti-Communist loyalty tests have been mostly relegated to the dustbin of history. The same rule applies when the government asks someone to certify that they are not engaged in a boycott of Israel.

Kansas should not be dictating political orthodoxy for its contractors. Although the government may impose reasonable restrictions on employee or contractor speech when it relates to their job duties or causes disruption in the workplace, people do not lose the right to participate in politics or speak out on issues of public concern just because they get paid by the state. By requiring all state contractors to certify that they are not engaged in a boycott of Israel, Kansas’s law unconstitutionally disqualifies people from working for the state based on protected expression and association that has nothing to do with their jobs.

From the Boston Tea Party to the Montgomery bus boycott to the campaign to divest from businesses operating in apartheid South Africa, political boycotts have been a proud part of this country’s constitutional tradition. That’s why the ACLU has opposed anti-boycott bills in state legislatures for the past several years. That’s why we’ve come out against the Israel Anti-Boycott Act in Congress. And that’s why we’re suing to challenge Kansas’s unconstitutional anti-boycott law.

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Anonymous

Why bother? Someone will just decide that any talk about boycotting or not boycotting Israel is to "inflammatory" and we'll never be able to get another post, ad, or news article on the topic. Out of sight - out of mind.

Dr. Joseph Goebbels

To be politically correct you cannot use the word boycott anymore.
You have to use the words personcott or unicott.

TrumpAid it’s a...

Jesus boycotted the temple because the vendors wouldn’t sell him sheep condoms to protect him from giving Luke leprosy.

Anonymous

Its completely ok to jump right in and use the term "thought police" if you like, though. The millenials read 1984, or one of them read it and tweeted the others, and they all think that's a great idea.

Anonymous

Harry S. Truman's attorney general considered his administration's illegal loyalty oath - contrary to the constitutional oath of office - to be the greatest regret of the Truman presidency. It literally destroyed lives.

The term "subversive" in America's "Constitutional Democratic Republic" model of government means anyone that subverts the U.S. Constitution and Bill of Rights.

Ironically during McCarthyism, the FBI's tactics were "subverting" legal First Amendment activity. Most of the citizens they were investigating were operating legally within constitutional and legal boundaries. Then as now, guilt-by-association and denying constitutional due process is subverting the U.S. Constiution.

The constitutional rule of law means that the "ends never justify unconstitutional means. The U.S. Constitution is a wartime charter with emergency clauses already built in (ex: limited and temporary suspension of habeas corpus).

Under Article VI of the United States Constitution the one and only loyalty oath any local, state or federal official takes is to follow the U.S. Constitution and Bill of Rights - everything else is subordinate and if it violates the supreme law of the land - those actions are subversive.

Most private contractors also take an oath of office, so oath-sworn bureaucrats can't farm out torture, warrantless spying and assassinations.

To the best of my knowledge only one group doesn't take an oath of office to follow the U.S. Constitution - the Civil Air Patrol. Congress outlawed CAP teenagers from participating in combat missions.

Anonymous

Nice post.

Anonymous

Actually, CAP adults take the same oath of office as the Air Force.

Anonymous

Actually, CAP adults take the same oath of office as the Air Force.

Anonymous

Fuk the CAP! They are not REAL Airforce that understand their roles and responsibilities. Most of them are old, fat assed, white males with chips on their shoulder against minorities. Look it up, look up the demographics of the Civil Air Patrol and you will be surprised.

They often use government money earmarked for search and rescue to support drug interdiction operations. Yes that’s right, while little jimmy is missing in the forest, the CAP is busy tracking a single car carrying less than 4 grams of weed in the trunk on the highway. As directed by the piggie highway patrol of course.

Fuck CAP! End all of their funding!

Anonymous

Hitler boycotted Jews. The Nazis boycotted Jewish businesses. The BDS calls for the boycott of Jews. The BDS supports the destruction of Israel. The BDS spreads lots of lies. Boycott the BDS, not those who refuse to boycott Jews! Boycott Roger Waters, the anti-Semite, not Jews.

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