The greatest free speech threat in the West — attempts to outlaw activism against Israeli occupation — may have just suffered a fatal blow.
A federal judge on Tuesday ruled that a Kansas law designed to punish people 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 spreading rapidly in numerous political and academic centers in the U.S. This judicial decision definitively declares those efforts — when they manifest in the U.S. — to be a direct infringement of basic First Amendment rights guaranteed by the U.S. Constitution.
The enjoined law, enacted last year by the Kansas legislature, requires all state contractors — as a prerequisite to receiving any paid work from the state — “to certify that they are not engaged in a boycott of Israel.” The month before the law was implemented, Esther 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 a resolution enacted by the national Mennonite Church. The resolution acknowledged “the cry for justice of Palestinians, especially those living under oppressive military occupation for fifty years”; vowed to “oppose military occupation and seek a just peace in Israel and Palestine”; and urged “individuals and congregations to avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in [Israeli] settlements.”
A month after this law became effective, Koontz, having just completed a training program to teach new courses, was offered a position at a new Kansas school. But, as the court recounts, “the 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.” 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 no contract could be signed with her.
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 agreed and preliminarily enjoined enforcement of the law.
The ruling is significant for two independent 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’s disapproval of one’s political views, as the court explained in its ruling (emphasis added):
Even more important is the court’s categorical decree that participating in boycotts is absolutely protected by the First Amendment’s guarantee of free speech and petition rights. Citing the 1982 U.S. Supreme Court case 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 in the Kansas case pointedly ruled that “the First Amendment protects the right to participate in a boycott.” In doing so, it explained that the core purpose of the Kansas law is to punish those who are critical of Israeli occupation and are working to end it: “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.”
Indeed, it’s hard to imagine a law that more directly violates the First Amendment’s guarantee of free speech than one that seeks to deny people benefits for which everyone else is eligible due solely to the state’s disapproval of their political views and activism. Since that’s exactly what this Kansas law did, the court concluded that it was unconstitutional.
Beyond the court’s emphatic 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 single greatest threat to free speech in the West — and in the U.S. — is the coordinated, growing campaign to outlaw and punish those who advocate for or participate in activism to end the Israeli occupation.
Numerous other U.S. states have implemented similar measures as the one in Kansas — including New York, where, as we previously reported, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies “to terminate any and all business with companies or organizations that support a boycott of Israel” and “requiring that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott.” As the New York Civil Liberties Union told The Intercept at the time about Cuomo’s order: “Whenever the government creates a blacklist based on political views it raises serious First Amendment concerns and this is no exception.”
Last year, a measure sponsored by Benjamin Cardin, a Democratic senator from Maryland and an AIPAC loyalist, joined by 43 other senators, went even further, purporting to impose prison 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 “would punish individuals for no reason other than their political beliefs” did several senators say they were re-considering their support.
Indeed, it’s 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 The Intercept yesterday, “Since 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.” The report issued by the group this week details just some of those efforts:
So widespread are attempts to punish and repress speech and activism aimed at ending the Israeli occupation that the Center for Constitutional Rights has dubbed this movement “the Palestine Exception” to free speech rights in the U.S.
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 — 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 to 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.