A Wave of Laws Target Boycotts of Israel (ep. 29)

January 17, 2019
mytubethumbplay
%3Ciframe%20width%3D%22100%25%22%20height%3D%22166px%22%20scrolling%3D%22no%22%20frameborder%3D%22no%22%20allow%3D%22autoplay%22%20thumb%3D%22sites%2Fall%2Fmodules%2Fcustom%2Faclu_podcast%2Fimages%2Fpodcast-at-liberty-click-wall-full.jpg%22%20play-icon%3D%22sites%2Fall%2Fmodules%2Fcustom%2Faclu_podcast%2Fimages%2Fpodcast-play-btn-full.png%22%20src%3D%22https%3A%2F%2Fw.soundcloud.com%2Fplayer%2F%3Furl%3Dhttps%253A%2F%2Fapi.soundcloud.com%2Ftracks%2F560125191%26amp%3Bcolor%3D%2523000000%26amp%3Binverse%3Dfalse%26amp%3Bauto_play%3Dtrue%26amp%3Bhide_related%3Dtrue%26amp%3Bshow_comments%3Dfalse%26amp%3Bshow_user%3Dfalse%26amp%3Bshow_reposts%3Dfalse%26amp%3Bshow_teaser%3Dfalse%22%3E%3C%2Fiframe%3E
Privacy statement. This embed will serve content from soundcloud.com.

A raft of new state and federal laws are seeking to stop people from participating in political boycotts aimed at the state of Israel. ACLU attorney Brian Hauss has challenged these laws across the U.S., and just this month argued against one in Arkansas. He joins Emerson Sykes — At Liberty’s new host — to discuss what exactly this all means and why it's a major threat to the First Amendment. 

DOWNLOAD FILE

Update (1/18/19): After this episode was released, J Street clarified that the organization does not, in fact, support or engage in settlement boycotts.

EMERSON SYKES
[00:04] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU’s national headquarters in New York City, and I'll be taking over as host for Lee Rowland. Before we begin today's show I'd like to send a special thanks to her for all her great work getting this podcast off the ground.

Today we're joined by Brian Hauss, a staff attorney at the ACLU working on free speech and the right to protest. In multiple states, and even at the federal level, new laws seek to stop people from participating in political boycotts aimed at the state of Israel. Brian has been leading the ACLU’s work in challenging these laws, and just this month argued against one in Arkansas. He's here to help us understand what exactly this all means and why it's an important civil liberties issue. Brian, welcome to the podcast.

BRIAN HAUSS
Thanks for having me, Emerson.

EMERSON
I wanted to start, for our listeners who are less familiar with this area:

What is the Boycott Divestment and Sanctions campaign?

BRIAN
So boycott divestment and sanctions campaigns are basically political protest campaigns that are designed to encourage businesses and other groups to get the Israeli government to change its policies, specifically with respect to Palestinians. And these campaigns have three goals that kind of unite the disparate boycott campaigns themselves. The first goal is to seek equality for Palestinians and Israeli citizens living within Israel. The second goal is to end Israel's occupation of the Palestinian territories. And the third goal is a right of return for all Palestinian refugees.

EMERSON
How centralized is the BDS campaign? Is this one organization or is this something that people are engaging on an individual basis?

BRIAN
There are a number of organized BDS campaigns that are promoted by different groups like the U.S. Campaign for Palestinian Rights and Jewish Voice for Peace. And people often participate in those campaigns to varying degrees. So some people are members of these groups and regularly write petitions to their members of Congress, write letters to the companies that are being targeted as part of the boycott, participate in days of action and protest against the companies. Other people take a more relaxed approach and follow the companies that are listed as boycott targets by these groups and refuse to buy those products. But they're all doing it in conjunction with this coordinated activity to express their protest of the Israeli government's actions through refusal to purchase consumer goods and services promoted by companies that support Israel's occupation of the Palestinian territories.

[2:23] In addition to the BDS campaigns, there are a number of groups and individuals who participate in other boycotts of Israel or territories controlled by Israel. And these include groups like J Street or the Evangelical Lutheran Church in America, and many of them specifically target boycotts of the Israeli settlements in the occupied Palestinian territories and the companies supporting the occupation by operating in those settlements.

EMERSON
In response to the BDS movement, what kinds of laws have you seen at the federal and state level?

BRIAN
So at the state level, starting around 2014 or 2015, we've seen a number of laws that would require state contractors to certify to the state government that they're not participating in boycotts of Israel.

So for example, if you have a garbage disposal business that contracts with your local municipality, it would have to sign a certification form promising that that garbage disposal business doesn't participate in a boycott of Israel. Or if you're contracting with a local university — either as an adjunct professor or as a catering service — because the public university is a state entity, you would have to sign a form you'd have to sign a form stating that you are not participating in a boycott of Israel.

EMERSON
And these certifications, do they apply retroactively? And also are you allowed to participate in any of these kinds of actions in the future? Or is it just during the terms of the contract?

BRIAN
So what the contract usually says is that the contractor is not currently participating in a boycott of Israel and that it will not participate in a boycott of Israel for the duration of the contract. And this kind of resembles the old McCarthy-era loyalty oaths, you know, what they required people to say is that, “I am not now nor have I ever been a member of the Communist Party.” And it’s that sort of thing. So like, “I'm not doing this now and I'm not going to do it at all for the duration of the contract.”

[4:03] At the federal level, there are two bills that are really at issue here. The first is the Israel Anti-Boycott Act, and this is a bill that would make it a crime to participate in boycotts of Israel if those boycotts are called for by international governmental organizations like the U.N. Human Rights Council. Another bill, called the Combating BDS Act, would say that any state law requiring contractors to certify that they're not boycotting Israel is not preempted by any federal statute. And that basically means that there is nothing in the federal statutes that would stop states from enacting these laws. What the Combating BDS Act can't do is negate Americans’ First Amendment rights. Congress can't legislate that away. And so it, although it would encourage states to continue passing these unconstitutional laws, the laws could still be struck down in court on First Amendment grounds.

EMERSON
So is it the case that the states are somewhat leading the way on this and that the federal government is then trying to cover them on the back side?

BRIAN
I think they're operating on two different levels and they're operating kind of in tandem. It is true I think that the states started first and they were the first ones to pass these boycott certification laws. But the Israel Anti Boycott Act imposes a different kind of penalty. It imposes a criminal penalty that would apply to any organization or company in the United States. And so it's much broader in that respect than some of the state laws.

EMERSON
And this trend, you said, started around 2014, is that correct?

BRIAN
Around that time, yes.

EMERSON
And why then? Who's behind this? To what extent do we understand where these laws have come from?

BRIAN
It's hard to speculate about exactly why these laws developed or exactly where they came from. I think with respect to the state laws it's pretty clear that they're all coming from one place. Many of the state laws have exactly the same language, they have exactly the same legislative findings, and they were passed at roughly the same time, which suggests that there is some sort of coordinated push going on. At the federal level, we know that AIPAC is a big sponsor of the Israel Anti-Boycott Act so we know that that's where that particular bill is coming from. But I think regardless of where these laws are coming from, they all violate the First Amendment and that's really the key issue here.

EMERSON
Maybe taking a step back: Can you talk a little bit about the clients that you're working with and the kind of impact that these laws have had on them?

BRIAN
[6:08] We've represented clients in four separate cases now, in Kansas, Arizona, Arkansas, and Texas. In Kansas, we represented Esther Koontz. Ms. Koontz was a member of the Mennonite Church and she also works for the state, coordinating teacher training conferences throughout the state of Kansas. And Ms. Koontz saw several presentations on Israel's actions with regards to Palestinians and she felt that there were serious human rights violations at issue. And so she decided to boycott Israeli consumer products to express her protest of the Israeli government's actions, and she did this in conjunction with members of her church. At the same time she'd been selected to participate in the state teacher training program, and after she'd done all the training, after she'd done everything to be certified to participate in this program they said, there's one more thing you've got to do. You've got to fill out this form promising that you're not going to boycott Israel. And she wrote them back and said that that's gonna be a problem — I am boycotting Israel. And they said, we can't pay you.

EMERSON
So just to be clear, these certifications apply to people's private activities, not just in their official capacity or through their businesses.

But if you're in... as a private citizen boycotting Israel, as a part of a social group or a religious group, that precludes you from engaging as a private entity with the government — is that correct?

BRIAN
It's kind of complicated. So usually when you sign these anti boycott certification forms, you say that you, the contractor, will not participate in any boycott of Israel, regardless of whether or not it's part of your contract. So any activity you do, you can't boycott Israel. In many cases, people will sign these forms in their individual capacities. So Ms. Koontz was signing the form in her individual capacity. Or, if you operate as like a solo business and you don't have an independent business set up, it's called a sole proprietorship, then you sign the form in your individual capacity and then that restriction clearly applies to all your private activity. So if you privately boycott Israel the form would prevent you from doing that.

[7:57] In other circumstances, people will sign the form as a company. And so, an example of this is our client in Arizona, Mik Jordahl. Mik Jordahl runs a one-person law firm Mik[kel] Jordahl LLC. Many lawyers do this, they incorporate a separate business entity to administer their legal practice. And that is the entity that was required to sign the anti-boycott form in Arizona. And so what the anti-boycott form was saying was that Mik Jordahl’s company, his law firm, could not participate in a boycott of Israel as long as it was doing that. It's unclear, though, if you run a one person business, you know, where your company ends and where your private activities begin. I think the practical result is that if your company has signed a form saying that the company will not participate in a boycott of Israel, certainly the officers and directors and many of the employees of that company are going to feel that they can't participate in a boycott of Israel either, because their actions will be attributed to the company and they'll be accused of lying to the government.

EMERSON
Those are very thorny issues in the case of sole proprietorships. But I know that one of your other clients is a very different kind of entity. Can you talk about the plaintiff in the Arkansas case?

BRIAN
Sure. The Arkansas Times is a weekly alternative newspaper based out of Little Rock, Arkansas. They cover a range of issues primarily focused on Arkansas politics and local and current affairs. They also carry advertising for a number of Little Rock-based businesses, including the University of Arkansas Pulaski Technical College. And they've had contracts with the college for years and years and years. But then, as a result of Arkansas passing its own Israel anti-boycott certification law, all the state’s contractors are required to sign forms promising that they would not participate in a boycott of Israel. Now the Arkansas Times does not participate in a boycott of Israel, had not really considered participating in a boycott of Israel anytime prior to this, but when they saw this form they felt it was an outrageous violation of their First Amendment rights and so they said we're refusing to sign the anti-boycott certification form. And as a result they lost all their advertising contracts with the college.

EMERSON
You've referred to these certifications as unconstitutional a few times. Can you just walk me through exactly how they violate the First Amendment?

BRIAN
[9:55] So the First Amendment protects the right to boycott. I don't think it's a stretch to say that this country was founded on a boycott of British goods, and that boycotts have been an essential part of American political practice for the past 200 years. The civil rights movement, for example, used boycotts as a key tool to advocate for social change throughout many communities in the South. And the campaign to divest from Apartheid South Africa was successful international human rights campaign, based on a boycott. In 1982, in a case called NAACP v. Claiborne Hardware, the Supreme Court recognized that boycotts are protected under the First Amendment as core political expression and association.

And what boycotts allowed these people to do was to collectively make their voices heard when individually those voices would be lost or silenced. So when people come together in a boycott campaign, they can really get their government to pay attention to them and they can really get the people in their society to pay attention to them in a way that much might be much more difficult if they were just engaged in individual speech or protest.

And so what these laws try to do, these states’ anti-boycott certification laws, is they require contractors to give up their First Amendment rights in order to work for the state. In cases going back to the McCarthy era, the Supreme Court has held that the government cannot require people to forfeit their First Amendment rights or to disavow participation in protected expression or association as a condition of working for the government.

EMERSON
I understand that the Arkansas newspaper has worried that the signing of this certification might actually impact their independence in terms of their core mission as journalists. Can you talk a little bit more about what their interests are in their constitutional protections as a press outlet?

BRIAN
I mean I think journalists are at the vanguard of people standing up to defend First Amendment rights. The press exists to exercise First Amendment rights on behalf of the people. And so the idea that a journalist would be forced to say I'm hereby sacrificing my First Amendment rights in order to get a contract with the state violates the whole principle of an independent media.

EMERSON
And can you maybe discuss a little bit more about what's actually inside these certifications? What exactly does someone have to pledge that they believe?

BRIAN
[11:54] So what the certifications usually say is, “I, contractor, hereby certify that I'm not participating in a boycott of Israel and will not participate in a boycott of Israel for the duration of this contract.” They don't usually say much more than that. Sometimes they will actually include a definition of what it means to boycott Israel. And usually in these sections they'll say, a boycott of Israel is defined as refusing to deal or limiting commercial relations with Israel, the Israeli government, or any companies doing business in or with Israel or in territories controlled by Israel. And that's really to get at the Israeli settlements in the occupied Palestinian territories. And so, directly speaking, the boycott certification forms say that you can't refuse to deal because you're participating in a boycott.

Right, so if I'm participating in a BDS campaign I can't say that I'm going to not going to buy a Hewlett-Packard printer because I support BDS. I can say that I refuse to buy a Hewlett-Packard printer because I like Dell printers better, or because another printer is more convenient for my business. But if you're doing it for an expressive reason – if you're doing it because you're participating in a boycott — that's what the form restricts. The form also says that it applies to quote-unquote other actions. And nobody's really sure what that means. And I think the vagueness is intentional because it gets contractors to think, “Well geez, if I go and protest in front of my local Best Buy saying ‘don't buy Hewlett-Packard printers, Hewlett-Packard supports the occupation,’ that might violate the form. You know, that's not directly a refusal to deal but I'm encouraging other people to limit their economic relations with Israel and that might also violate the anti-boycott certification form.”

EMERSON
I can imagine that many contractors in these states signed these certifications without thinking much about them, especially if they're not particularly interested in these foreign policy issues. How did these certifications come onto the radar of the ACLU?

BRIAN
Local affiliates saw bills were being filed in the state governments that said that contractors couldn't participate in boycotts of Israel. The ACLU has long defended the right to participate in boycotts. We actually filed an amicus brief in NAACP versus Claiborne Hardware. Now, the ACLU itself doesn't take a position one way or the other on boycotts of Israel or of any other foreign country. But because we've long defended the right to boycott, we weighed in very strongly against these laws and said that they infringed fundamental First Amendment rights. Then when the national office started hearing from the state affiliates that there was this rash of these laws being passed, we realized that there was something bigger going on and that we needed to address it.

EMERSON
[14:25] And I know that some of the defenders of these laws say that the government has every right to choose who it does business with.

So how do you respond to the idea that this is just the government deciding what the terms of any contractual arrangement it enters into might be?

BRIAN
So Marco Rubio has said that if people have a right to participate in boycotts, then the government in effect has a right to boycott the boycotters. But this gets the First Amendment exactly backwards. The First Amendment protects the rights of the people and it restricts the powers of the government. So the people have a right to participate in boycotts under the First Amendment. And that means that the government can't punish them because they're exercising their First Amendment rights, and that's what the government's trying to do here.

EMERSON
You've mentioned lawsuits in four different states. What are you and your colleagues doing to address this issue now and in the longer term? Do you have a strategic approach that you're hoping to build on the successes so far?

BRIAN
Right now our main goal is to file lawsuits in the states that have these laws to get courts to strike them down, to recognize that these laws have violated the First Amendment. And already two courts have issued decisions holding that these laws are completely inconsistent with Americans’ constitutional rights. But in the long run, what I really hope is that state legislators themselves will start standing up for Americans’ First Amendment rights and will do the hard work necessary to repeal these laws so that the ACLU doesn't have to go around to every single state that has an anti-boycott law and file a lawsuit.

EMERSON
And what about on the federal level?

BRIAN
At the federal level we've been lobbying very aggressively to push back against the Israel Anti- Boycott Act and the combating B.D.S. Act and to urge senators to protect Americans’ First Amendment rights.

EMERSON
[15:59] I wanted to go back to one point that you raised earlier in drawing an analogy to the McCarthy-era loyalty pledges. Can you talk a little bit about the history of these so-called loyalty oaths in the Supreme Court?

BRIAN
So the McCarthy era was also known as the Red Scare, and this was because throughout the federal government and state governments people were afraid that Communists were infiltrating American life. And this led to stuff like the House Un-American Activities Committee interrogating members of Hollywood in the media about whether or not they'd ever been members of the Communist Party. And this was a period that was very dangerous for Americans’ First Amendment rights because the government was doing all kinds of things to suppress people just because they advocated communist views.

And so one tool for doing this was for state and federal governments to issue rules and laws basically saying that if you wanted to get any government benefits you had to sign an oath or a certification promising that you were not a member of the Communist Party or any other subversive groups, and that you were not engaged in communist or subversive advocacy. And what the Supreme Court recognized is that the government cannot require people to disavow participation in protected expression or association simply as a condition of receiving a benefit. That would give the government too much power to use its economic leverage to punish people for exercising their First Amendment rights and to suppress political expression that the government doesn't like.

EMERSON
I wanted to go back for a moment to the plaintiffs that you mentioned. What is the actual impact on their businesses on a day-to-day basis, in terms of if they sign the oath, they feel that their First Amendment rights may be violated; if they don't sign the oath, what is the impact on them and their business?

BRIAN
If they don't sign the oath, then they lose all of those government contracts and all of that funding.

And so for the Arkansas Times, for example, you know, they're operating in an area where they rely on those contracts with public entities in order to keep the business afloat. If they lose all those contracts, that's thousands and thousands of dollars a year. That could mean the difference between continuing to exist as a publication and declaring bankruptcy.
So these are really, in many cases, life-or-death questions for businesses, and questions about whether or not people will be able to earn a living and put food on the table.

EMERSON
[18:06] I wanted to ask about some of your clients in Texas because I think you have an interesting array of plaintiffs.

Can you talk a little bit about their own political activities and professional careers?

BRIAN
So in Texas we represent four people. One of them is a writer and artist based in Houston who does work under contract with the local universities. And he is participating in some boycotts — for example, a boycott of Sabra hummus — in support of Palestinian rights. Two of the plaintiffs are students in college or graduate school who want to be able to judge high school debate tournaments. But in order to judge those tournaments they've got to sign these anti-boycott certification forms and they refuse to sign those forms because they are participating in BDS boycotts. And finally, one of our clients is himself an NPR reporter who works under contract with a local affiliate at the Texas A&M University, and he is being forced to sign a form saying that he is not participating in any boycotts of Israel in order to work as a reporter. And he refuses to do that because he is also participating in certain BDS campaigns.

EMERSON
So what you're saying basically is that the definition of a contractor is extremely broad.

BRIAN
It's very very broad, and it's been applied even to people who want to come guest lecture at a university, have been required to sign these anti boycott certification forms. And to take another example in Dickinson Texas: last year, people were required to sign an anti boycott certification form in order to receive disaster relief. So this was after Hurricane Harvey hit and people whose businesses or homes had been decimated by the hurricane were being required to promise that they are not participating in boycotts of Israel in order to get disaster relief from the state in the community.

EMERSON
How can that be?

BRIAN
It's a really good question. I think it's just because the state wanted to suppress these boycotts and it didn't even really think through what all the implications of that might be and all the various ways this anti-boycott certification form could be imposed on people whose personal activities and lives really have nothing to do with the goals the state is trying to advance here.

EMERSON
[20:05] So it's not just being applied to people who have... who’re doing business with the state, but also beneficiaries of state funds?

BRIAN
If those beneficiaries are signing contracts in order to receive the state funds — which is often a mechanism that states use to distribute money — then the anti boycott certification form could be applied to them as well.

EMERSON
And one thing I noted among the plaintiffs that you described is that some of them are quote-unquote activists who are engaging in debates around Israel and Palestinian people. But many of them are not, and were just sort of caught up in this constitutional issue. Can you talk a little bit about the interests that are involved?

BRIAN
What I like to say is you don't need to be a communist to object to a loyalty oath, and you don't need to be boycotting Israel to see what's offensive and un-American about an anti-boycott certification form. And that's exactly what's going on with our client the Arkansas Times. You know, they're not participating in any boycott of Israel but they think it is fundamentally unconstitutional to make them forfeit their First Amendment rights in order to get government contracts.

EMERSON
In the cases you've mentioned, can you give us a sense of what the government's arguing in terms of the constitutionality of these laws?

BRIAN
The government usually makes three arguments to defend these laws.

The first argument the government makes is that boycotts aren't protected under the First Amendment. And there I think the government's running up against the Supreme Court's decision in Claiborne Hardware Company, which pretty clearly establishes that boycotts are protected under the First Amendment. The second argument the government tries to make is that even if boycotts are protected, the government shouldn't have to subsidize boycotters’ activities. But the key point here is that the government cannot condition benefits on people's independent expression. So if the government wants to tell a contractor, look, you can't use our money while you're working for us, this is what you have to do and we don't want you boycotting Israel while you're providing services, what the government can't do is say, when you're off the clock you also can't be boycotting Israel then.

[21:54] The final argument that government makes is that these anti-boycott laws are actually anti-discrimination laws to prevent against Israel discrimination. The first thing I should point out here is that Israel discrimination is not a traditionally recognized form of discrimination that civil rights laws are meant to advance. Generally speaking, civil rights laws are meant to protect individuals and people in the American public who are going to places of public accommodation, who are trying to get jobs, who are trying to get housing. And it's meant to prevent the people providing those jobs and housing and stores from discriminating against people based on their protected characteristics like race, sex, sexual orientation, gender identity, etc.

Those laws have not traditionally applied when people are saying I'm boycotting a business because I disagree with that business’ practices. And they've not traditionally applied to people who are boycotting foreign countries. It would be very easy to define any boycott of a foreign country as nationality discrimination against that country. What the courts have recognized is that there is a fundamental right to participate in these consumer boycotts and simply framing a law as an anti-discrimination law to protect the boycott target cannot be used to erode those fundamental First Amendment rights.

EMERSON
But what many defenders of these types of actions will say is that the BDS movement is itself discriminatory and point to examples where advocates for BDS have made anti-Semitic comments in particular. How do you respond to the allegation that these laws are trying to fight anti-Semitism?

BRIAN
So the first thing I should point out is that the BDS National Committee has made clear that it condemns anti-Semitism as well as all forms of racism. But it's not my place to speak for people who participate in BDS campaigns. I'm a First Amendment lawyer and regardless of what you think about BDS, the core point is that boycotts are a fundamentally protected form of political expression and the government cannot seek to suppress that even if it has a very strong opinion that that expression is discriminatory.

EMERSON
Could the government have a certification that said that you will not participate in any racist or misogynistic activities?

BRIAN
[23:58] What the government could do is say that you're not allowed to discriminate based on race, or sex, or sexual orientation in hiring, in places of public accommodation, et cetera. What the government cannot do is say that you will not engage in any racist or sexist speech in your spare time.

That would be limiting Americans’ free expression rights.

EMERSON
So if you had to guess, looking forward into 2019: Where do you see this issue moving in terms of the trend?

BRIAN
In 2019, I think I'm heartened to see that more and more, not only federal courts but now elected representatives, are standing up for Americans’ First Amendment rights. We've seen a number of senators and members of Congress stand up affirmatively and say I'm not going to support any bill that restricts Americans’ rights to boycott. And I think that we'll start to see that in the state legislatures as well, as people become educated about this issue and realize that wherever you stand on the Israeli-Palestinian conflict, the right to boycott is a fundamental First Amendment freedom that our government should not be trying to restrict.

EMERSON
Thanks very much for coming in today Brian. We really appreciate your insights.

BRIAN
Thank you for having me.

EMERSON
That's our show for this week. Thanks for joining us. It's been a pleasure to serve as your new host. Please subscribe to At Liberty and be sure to tune in next week.

Stay Informed