After Court Defeat, Kansas Changes Law Aimed at Boycotts of Israel

ACLU Withdraws Free Speech Lawsuit Against Law Requiring Contractors to Sign Document Promising Not to Boycott Israel

June 29, 2018 6:00 pm

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TOPEKA, Kan. — Following amendments to a Kansas law that required a public school educator to certify that she wouldn’t boycott Israel, the American Civil Liberties Union agreed to dismiss its lawsuit challenging the law.

In January, a federal judge issued a preliminary injunction blocking enforcement of the law, finding that it violated the First Amendment right to participate in political boycotts. It was the first ruling addressing a wave of laws nationwide aiming to punish people who boycott Israel. The ACLU is also fighting a similar law in Arizona.

The Kansas law, which went into effect last July, had required that any person or company that contracts with the state submit a written certification that they are “not currently engaged in a boycott of Israel.”

In April, the Legislature enacted changes to the law, narrowing its scope in three ways. First, the anti-boycott certification requirement no longer applies to individuals or sole proprietors. Second, the certification requirement applies to companies only if they conduct more than $100,000 worth of business with the state. Finally, companies required to sign the certification must now state that they are “not engaged in a boycott of goods or services from Israel that constitute an integral part of business conducted or sought to be conducted with the state.”

ACLU attorney Brian Hauss, who argued the issue in court, said, “Thanks to the court’s ruling, Kansas lawmakers have now scaled back this law, but it still runs afoul of the First Amendment. The appropriate response would have been to repeal the law in its entirety. While the changes reduce the number of people required to sign the anti-boycott certification, the fundamental purpose of the law — to suppress political boycotts of Israel and chill protected expression — remains unconstitutional.”

The ACLU brought the case on behalf of Esther Koontz, who belongs to the Mennonite Church USA. In accordance with calls for boycott made by members of her congregation and her church, Koontz decided not to buy consumer products made by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories. Koontz participates in this boycott in order to protest the Israeli government’s treatment of Palestinians and to pressure the country to change its policies.

Having served as a public school math teacher for nine years, Koontz now develops her school’s curriculum and trains teachers on how to implement it. She is also qualified to train teachers statewide as a contractor with the Kansas Department of Education’s Math and Science Partnerships program. When Koontz was asked to certify that she does not participate in a boycott of Israel, she said that she could not sign the form in good conscience. As a result, the state refused to contract with her, and she was unable to participate as a trainer in the state’s program. The amendments to the law mean that it no longer applies to her.

The court’s January decision found that the anti-boycott certification requirement was designed to suppress the message of those participating in boycotts of Israel. The court accordingly concluded that Kansas’s law imposed “a plainly unconstitutional choice” on state contractors: Either disavow their participation in boycotts of Israel or forfeit the opportunity to work for the state.

In his opinion, U.S. District Judge Daniel Crabtree wrote, “[T]he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”

The Kansas law is similar to legislation that has been passed in numerous other states. The ACLU does not take a position on boycotts of foreign countries, but the organization has long supported the right to participate in political boycotts and has voiced opposition to bills that infringe on this important First Amendment right. In the lawsuit challenging the Arizona law, the ACLU represents an attorney and his one-person law office, which contracts with the government to provide legal services to incarcerated people.

The ACLU opposes a bill introduced in Congress that would criminalize participation in certain political boycotts targeting Israel.

More information on the Kansas case is here:

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