Laws Targeting Israel Boycotts Fail First Legal Test

Issuing the first decision of its kind, a federal judge today blocked enforcement of a Kansas law targeting boycotts of Israel, ruling in an ACLU lawsuit that the First Amendment protects the right to engage in political boycotts.

The Kansas law requires that any person or company that contracts with the state sign a statement that they are “not currently engaged in a boycott of Israel.” The ACLU brought the lawsuit in October on behalf of Esther Koontz, a schoolteacher who refused to sign the certification. Today’s decision, an important victory for political speech, will allow her to resume her work. Thanks to the order, Kansas is prohibited from enforcing its law while the case proceeds.

This is the first ruling to address a recent wave of laws nationwide aiming to punish people who boycott Israel, and it should serve as a warning to other states with similar provisions, including one we are challenging in Arizona. It correctly recognizes that forcing an individual to choose between exercising their rights and contracting with the state is unconstitutional.

Here are the key takeaways from the decision:

There is no question that the First Amendment protects the right to participate in a political boycott.

The Supreme Court made this clear with its landmark decision in NAACP v. Claiborne, which found that a civil rights-era boycott of white-owned businesses in Mississippi was protected by the Constitution. Judge Daniel D. Crabtree relied on Claiborne in finding that the First Amendment clearly protects Esther’s decision to “band together” with others in a boycott in order to:

express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens. She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne.

The law seriously harms our client.

Esther is a veteran math teacher and trainer who was told she would need to sign the certification statement in order to participate in a state program training other math teachers. She boycotts consumer goods and services produced by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories. She does so in order to protest the Israeli government’s treatment of Palestinians and to pressure the government to change its policies. As a result, she could not in good conscience sign the statement and thus couldn't participate in the state program.

The judge correctly recognized the political litmus test the state was imposing on Esther:

Plaintiff’s harm stems not from her decision to refuse to sign the certification, but rather from the plainly unconstitutional choice the Kansas Law forces plaintiff to make: She either can contract with the state or she can support a boycott of Israel.

As the court held, that is not permissible.

Kansas passed the anti-boycott law to silence one voice: those challenging Israel.

Judge Crabtree also recognized the law’s true purpose:

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.

Some two dozen other states have passed laws specifically targeting those who oppose one side of the Israel-Palestine debate. They should all take note of today’s decision.