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<\/a>Photo: Thomas Coex\/AFP\/Getty Images<\/p><\/div><\/p>\n
In a Major Free Speech Victory, a Federal Court Strikes Down a Law that Punishes Supporters of Israel Boycott<\/h2>\n
Glenn Greenwald
\nThe Intercept<\/p>\n
A FEDERAL JUDGE<\/u>\u00a0on Tuesday ruled that a Kansas law designed to punish\u00a0people who boycott Israel is an unconstitutional denial of free speech. The ruling is a significant victory for free speech rights because the global campaign to criminalize, or otherwise legally outlaw, the Boycott, Divestment, and Sanctions movement has been\u00a0spreading rapidly<\/a>\u00a0in numerous political and academic centers in the U.S. This\u00a0judicial decision<\/a>\u00a0definitively declares those efforts \u2014 when they manifest in the U.S. \u2014 to be a direct infringement of basic First Amendment rights guaranteed by the U.S. Constitution.<\/p>\n The\u00a0enjoined law, enacted last year by the Kansas legislature, requires all state contractors \u2014 as a prerequisite\u00a0to receiving any paid work from the state \u2014 \u201cto certify that they are not engaged in a boycott of Israel.\u201d The month before the law was implemented,\u00a0Esther Koontz, a Mennonite who works as a curriculum teacher for the Kansas public school system, decided that she would boycott goods made in Israel, motivated in part by a film she had seen detailing the abuse of Palestinians by the occupying Israeli government, and in part by\u00a0a resolution enacted<\/a>\u00a0by the national Mennonite Church.\u00a0The resolution acknowledged \u201cthe cry for justice of Palestinians, especially those living under oppressive military occupation for fifty years\u201d; vowed\u00a0to \u201coppose military occupation and seek a just peace in Israel and Palestine\u201d; and urged \u201cindividuals and congregations to avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in [Israeli] settlements.\u201d<\/p>\n A month after this law\u00a0became effective,\u00a0Koontz, having just completed a training program to teach new courses, was offered a position\u00a0at a new Kansas school. But, as the court recounts, \u201cthe program director asked Ms. Koontz to sign a certification confirming that she was not participating in a boycott of Israel, as the Kansas Law requires.\u201d Koontz ultimately replied that she was unable and unwilling to sign such an oath because she is, in fact, participating in a boycott of Israel. As a result, she was told that\u00a0no contract could be signed with her.<\/p>\n In response to being denied this job due to her political views, Koontz retained the American Civil Liberties Union, which sued the commissioner of education, asking a federal court to enjoin enforcement of the law on the grounds that denying Koontz a job due to her boycotting of Israel violates her First Amendment rights. The court on Tuesday\u00a0agreed and preliminarily enjoined enforcement of the law.<\/p>\n The ruling is significant for two\u00a0independent reasons. The first is the definitive and emphatic nature of the ruling. The court dispensed with an oft-repeated but mythical belief about free speech rights: namely, that they only bar the government from imprisoning or otherwise actively punishing someone for their views, but do not bar them from withholding optional benefits (such as an employment contract) as retaliation for those views. Very little effort is required to see why such a proposition is wrong: Just imagine a law which provided that only people who believe in liberalism (or conservatism) will be eligible for unemployment benefits or college loans. Few would have trouble understanding the direct assault on free speech guarantees posed by such a law; the same is true of a law that denies any other benefits (including employment contracts) based on the state\u2019s disapproval of one\u2019s political views, as the court explained in its ruling (emphasis added):<\/p>\n Even more important is the court\u2019s categorical decree that participating in boycotts is absolutely protected by the First Amendment\u2019s guarantee of free speech and petition rights. Citing the\u00a01982 U.S. Supreme Court case<\/a>that invoked free speech rights to protect members of the NAACP from punishment by the state of Mississippi for boycotting white-owned stores, the court\u00a0in the Kansas case pointedly ruled that \u201cthe First Amendment protects the right to participate in a boycott.\u201d In doing so, it explained\u00a0that the core purpose of the Kansas law is to punish those who are critical of Israeli occupation and are working to end it: \u201cThe Kansas Law\u2019s 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.\u201d<\/p>\n Indeed, it\u2019s hard to imagine a law that more directly violates the First Amendment\u2019s guarantee of free speech than one that seeks to deny people benefits for which everyone else is eligible due solely to the state\u2019s disapproval of their political views and activism. Since that\u2019s exactly what this Kansas law did, the court concluded that it was unconstitutional.<\/p>\n BEYOND THE COURT\u2019S<\/u>\u00a0emphatic rationale, the decision is significant because repressive measures like this have spread, and continue to spread, far beyond Kansas. Indeed, as we have repeatedly reported and documented, the\u00a0single greatest threat to free speech in the West<\/a>\u00a0\u2014 and in the U.S. \u2014 is the coordinated, growing campaign to outlaw and punish those who advocate for or participate in\u00a0activism to end the Israeli occupation.<\/p>\n Numerous other U.S. states have implemented similar measures as the one in Kansas \u2014 including New York, where, as we\u00a0previously reported<\/a>, Democratic Gov. Andrew Cuomo issued an executive order\u00a0directing all agencies<\/a>\u00a0\u201cto terminate any and all business with companies or organizations that support a boycott of Israel\u201d and \u201crequiring that one of his commissioners compile \u2018a list of institutions and companies\u2019 that\u00a0\u2014 \u2018either directly or through a parent or subsidiary\u2019 \u2014 support a boycott.\u201d As the New York Civil Liberties Union told The Intercept\u00a0at the time about Cuomo\u2019s order: \u201cWhenever the government creates a blacklist based on political views it raises serious First Amendment concerns and this is no exception.\u201d<\/p>\n Last year, a measure sponsored by Benjamin Cardin, a Democratic senator from Maryland\u00a0and an AIPAC loyalist, joined by 43 other senators, went even further,\u00a0purporting to impose<\/a>\u00a0prison sentences and large fines for anyone working with international organizations to boycott Israel. Only after the ACLU vehemently denounced the bill as a grave First Amendment attack that \u201cwould punish individuals for no reason other than their political beliefs\u201d did several senators\u00a0say they were re-considering<\/a>\u00a0their support.<\/p>\n Indeed, it\u2019s hard to overstate how pervasive and mainstream these attempts to legally suppress criticisms of Israel have become, including in the U.S. As the legal advocacy organization Palestine Legal told\u00a0The Intercept yesterday, \u201cSince 2014, over 100 anti-boycott measures (similar to the one blocked in Kansas) have been introduced in the U.S., at least 24 of them enacted. Palestine Legal responded to 308 suppression incidents in 2017 and nearly 1,000 in the last four years.\u201d The\u00a0report issued<\/a>\u00a0by the group this week details just some of those efforts:<\/p>\n So widespread are attempts to punish and repress speech and activism aimed at ending the Israeli occupation that the Center for Constitutional Rights has\u00a0dubbed this movement<\/a>\u00a0\u201cthe Palestine Exception\u201d to free speech rights in the U.S.<\/p>\n The federal court ruling from yesterday is a ringing endorsement of the vital constitutional principle that people cannot be punished by the U.S. government or state governments due to disapproval of their political activism and viewpoints \u2014 even if the goal is to protect the Israeli government and its decadeslong illegal occupation from criticism and activism. The direct result of this ruling is that the Kansas state government is barred from continuing to force teachers and other state residents\u00a0to take an oath to refrain from boycotting Israel upon pain of being denied contracts, but the broader and more enduring effect may be to emphasize just how authoritarian, repressive, and contrary to core civil liberties the global attempt to abuse the power of law to criminalize or suppress this free expression in the name of protecting Israeli occupation is.<\/p>\n Top photo: Israeli security forces and Palestinian protesters confront each other in Jerusalem\u2019s Old City on Dec. 15, 2017.<\/p>\n<\/a><\/div>\n\n