A major attack on the First Amendment: No credible advocate of free expression can remain silent about this “free speech exception for Israel.”
A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas, has been told that she can no longer work with the public school district, after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel or “otherwise tak[e] any action that is intended to inflict economic harm” on that foreign nation. A lawsuit on her behalf was filed early Monday morning in a federal court in the Western District of Texas, alleging a violation of her First Amendment right of free speech.
The child language specialist, Bahia Amawi, is a U.S. citizen who received a master’s degree in speech pathology in 1999 and, since then, has specialized in evaluations for young children with language difficulties (see video below). Amawi was born in Austria and has lived in the U.S. for the last 30 years, fluently speaks three languages (English, German, and Arabic), and has four U.S.-born American children of her own.
Amawi began working in 2009 on a contract basis with the Pflugerville Independent School District, which includes Austin, to provide assessments and support for school children from the county’s growing Arabic-speaking immigrant community. The children with whom she has worked span the ages of 3 to 11. Ever since her work for the school district began in 2009, her contract was renewed each year with no controversy or problem.
But this year, all of that changed. On August 13, the school district once again offered to extend her contract for another year by sending her essentially the same contract and set of certifications she has received and signed at the end of each year since 2009.
She was prepared to sign her contract renewal until she noticed one new, and extremely significant, addition: a certification she was required to sign pledging that she “does not currently boycott Israel,” that she “will not boycott Israel during the term of the contract,” and that she shall refrain from any action “that is intended to penalize, inflict economic harm on, or limit commercial relations with Israel, or with a person or entity doing business in Israeli or in an Israel-controlled territory.”
The language of the affirmation Amawi was told she must sign reads like Orwellian — or McCarthyite — self-parody, the classic political loyalty oath that every American should instinctively shudder upon reading:
That language would bar Amawi not only from refraining from buying goods from companies located within Israel, but also from any Israeli companies operating in the occupied West Bank (“an Israeli-controlled territory”). The oath given to Amawi would also likely prohibit her even from advocating such a boycott given that such speech could be seen as “intended to penalize, inflict economic harm on, or limit commercial relations with Israel.”
Whatever one’s own views are, boycotting Israel to stop its occupation is a global political movement modeled on the 1980s boycott aimed at South Africa that helped end that country’s system of racial apartheid. It has become so mainstream that two newly elected members of the U.S. Congress explicitly support it, while boycotting Israeli companies in the occupied territories has long been advocated in mainstream venues by Jewish Zionist groups such as Peace Now and the Jewish-American Zionist writer Peter Beinart.
This required certification about Israel was the only one in the contract sent to Amawi that pertained to political opinions and activism. There were no similar clauses relating to children (such as a vow not to advocate for pedophiles or child abusers), nor were there any required political oaths that pertained to the country of which she is a citizen and where she lives and works: the United States.
In order to obtain contracts in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children, and even to support a boycott of particular U.S. states, such as was done in 2017 to North Carolina in protest of its anti-LGBT law. In order to continue to work, Amawi would be perfectly free to engage in any political activism against her own country, participate in an economic boycott of any state or city within the U.S., or work against the policies of any other government in the world — except Israel.
That’s one extraordinary aspect of this story: The sole political affirmation Texans like Amawi are required to sign in order to work with the school district’s children is one designed to protect not the United States or the children of Texas, but the economic interests of Israel. As Amawi put it to The Intercept: “It’s baffling that they can throw this down our throats and decide to protect another country’s economy versus protecting our constitutional rights.”
Amawi concluded that she could not truthfully or in good faith sign the oath because, in conjunction with her family, she has made the household decision to refrain from purchasing goods from Israeli companies in support of the global boycott to end Israel’s decadeslong occupation of the West Bank and Gaza.
Amawi, as the mother of four young children and a professional speech pathologist, is not a leader of any political movements: She has simply made the consumer choice to support the boycott by avoiding the purchase of products from Israeli companies in Israel or the occupied West Bank. She also occasionally participates in peaceful activism in defense of Palestinian self-determination that includes advocacy of the global boycott to end the Israeli occupation.
Watch The Intercept’s three-minute video of Amawi, as she tells her story, here:
When asked if she considered signing the pledge to preserve her ability to work, Amawi told The Intercept: “Absolutely not. I couldn’t in good conscience do that. If I did, I would not only be betraying Palestinians suffering under an occupation that I believe is unjust and thus, become complicit in their repression, but I’d also be betraying my fellow Americans by enabling violations of our constitutional rights to free speech and to protest peacefully.”
As a result, Amawi informed her school district supervisor that she could not sign the oath. As her complaint against the school district explains, she “ask[ed] why her personal political stances [about Israel and Palestine] impacted her work as a speech language pathologist.”
In response, Amawi’s supervisor promised that she would investigate whether there were any ways around this barrier. But the supervisor ultimately told Amawi that there were no alternatives: Either she would have to sign the oath, or the district would be legally barred from paying her under any type of contract.
Because Amawi, to her knowledge, is the only certified Arabic-speaking child’s speech pathologist in the district, it is quite possible that the refusal to renew her contract will leave dozens of young children with speech pathologies without any competent expert to evaluate their conditions and treatment needs.
“I got my master’s in this field and devoted myself to this work because I always wanted to do service for children,” Amawi said. “It’s vital that early-age assessments of possible speech impairments or psychological conditions be administered by those who understand the child’s first language.”
In other words, Texas’s Israel loyalty oath requirement victimizes not just Amawi, an American who is barred from working in the professional field to which she has devoted her adult life, but also the young children in need of her expertise and experience that she has spent years developing.
The anti-BDS Israel oath was included in Amawi’s contract papers due to an Israel-specific state law enacted on May 2, 2017, by the Texas State Legislature and signed into law two days later by GOP Gov. Greg Abbott. The bill unanimously passed the lower House by a vote of 131-0, and then the Senate by a vote of 25-4.
When Abbott signed the bill in a ceremony held at the Austin Jewish Community Center, he proclaimed: “Any anti-Israel policy is an anti-Texas policy.”
The bill’s language is so sweeping that some victims of Hurricane Harvey, which devastated Southwest Texas in late 2017, were told that they could only receive state disaster relief if they first signed a pledge never to boycott Israel. That demand was deeply confusing to those hurricane victims in desperate need of help but who could not understand what their views of Israel and Palestine had to do with their ability to receive assistance from their state government.
The evangelical author of the Israel bill, Republican Texas state Rep. Phil King, said at the time that its application to hurricane relief was a “misunderstanding,” but nonetheless emphasized that the bill’s purpose was indeed to ensure that no public funds ever go to anyone who supports a boycott of Israel.
At the time that Texas enacted the law barring contractors from supporting a boycott of Israel, it was the 17th state in the country to do so. As of now, 26 states have enacted such laws — including blue states run by Democrats such as New York, California, and New Jersey — while similar bills are pending in another 13 states.
This map compiled by Palestine Legal shows how pervasive various forms of Israel loyalty oath requirements have become in the U.S.; the states in red are ones where such laws are already enacted, while the states in the darker shade are ones where such bills are pending:
The vast majority of American citizens are therefore now officially barred from supporting a boycott of Israel without incurring some form of sanction or limitation imposed by their state. And the relatively few Americans who are still free to form views on this hotly contested political debate without being officially punished are in danger of losing that freedom, as more and more states are poised to enact similar censorship schemes.
One of the first states to impose such repressive restrictions on free expression was New York. In 2016, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel. “If you boycott Israel, New York State will boycott you,” Cuomo proudly tweeted, referring to a Washington Post op-ed he wrote that touted that threat in its headline.
As The Intercept reported at the time, Cuomo’s order “requires that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott. That government list is then posted publicly, and the burden falls on [the accused boycotters] to prove to the state that they do not, in fact, support such a boycott.”
Like the Texas law, Cuomo’s Israel order reads like a parody of the McCarthy era:
So Cuomo mandated that his own state employees boycott two other states within his own country, a boycott that by design would harm U.S. businesses, while prohibiting New York’s private citizens from supporting a similar boycott of a foreign nation upon pain of being barred from receiving contracts from the state of New York. That such a priority scheme is so pervasive — whereby boycotts aimed at U.S. businesses are permitted or even encouraged, but boycotts aimed at Israeli businesses are outlawed — speaks volumes about the state of U.S. politics and free expression, none of it good.
Following Cuomo, Texas’s GOP-dominated state legislature, and numerous other state governments controlled by both parties, the U.S. Congress, prodded by the American Israel Public Affairs Committee, began planning its own national bills to use the force of law to punish Americans for the crime of supporting a boycott of Israel. In July of last year, a group of 43 senators — 29 Republicans and 14 Democrats — supported a law, called the Israel Anti-Boycott Act (S. 720), introduced by Democratic Sen. Benjamin Cardin of Maryland, that would criminalize participation in any international boycott of Israel.
After the American Civil Liberties Union issued a statement vehemently condemning Cardin’s bill as an attack on core free speech rights, one which “would punish individuals for no reason other than their political beliefs,” numerous senators announced that they were re-considering their support.
But now, as The Intercept reported last week, a modified version of the bill is back and pending in the lame-duck session: “Cardin is making a behind-the-scenes push to slip an anti-boycott law into a last-minute spending bill being finalized during the lame-duck session.”
The ACLU has also condemned this latest bill because “its intent and the intent of the underlying state laws it purports to uphold are contrary to the spirit and letter of the First Amendment guarantee of freedoms of speech and association.” As the ACLU warned in a recent action advisory:
More dangerous attacks on free expression are difficult to imagine. Nobody who claims to be a defender of free speech or free expression — on the right, the left, or anything in between — can possibly justify silence in the face of such a coordinated and pure assault on these most basic rights of free speech and association.
One common misconception is that the First Amendment’s guarantee of free speech only bars the state from imprisoning or otherwise punishing people for speaking, but does not bar the state from conditioning the receipt of discretionary benefits (such as state benefits or jobs) on refraining from expressing particular opinions. Aside from the fact that, with some rare and narrow exceptions, courts have repeatedly held that the government is constitutionally barred under the First Amendment from conditioning government benefits on speech requirements — such as, say, enacting a bill that states that only liberals, or only conservatives, shall be eligible for unemployment benefits — the unconstitutional nature of Texas’s actions toward Bahia Amawi should be self-evident.
Imagine if, instead of being forced by the state to vow never to boycott Israel as a condition for continuing to work as a speech pathologist, Amawi was instead forced to pledge that she would never advocate for LGBT equality or engage in activism in support of or opposition to gun rights or abortion restrictions (by joining the National Rifle Association or Planned Parenthood), or never subscribe to Vox or the Daily Caller, or never participate in a boycott of Iran, North Korea, Venezuela, Cuba, or Russia due to vehement disagreement with those governments’ policies.
The tyrannical free speech denial would be self-evident and, in many of those comparable cases, the trans-ideological uproar would be instantaneous. As Lara Friedman, president of the Foundation for Middle East Peace, warned: “[T]his template could be re-purposed to bar contracts with individuals or groups affiliated with or supportive of any political cause or organization — from the political Left or Right — that the majority in a legislature or the occupant of a governor’s office deemed undesirable.”
Recall that in 2012, Chicago Mayor Rahm Emanuel tried to block zoning permits allowing Chick-fil-A to expand, due to his personal disagreement with the anti-LGBT activism of that company’s top executive. As I wrote at the time in condemning the unconstitutional nature of the mayor’s actions: “If you support what Emanuel is doing here, then you should be equally supportive of a Mayor in Texas or a Governor in Idaho who blocks businesses from opening if they are run by those who support same-sex marriage — or who oppose American wars, or who support reproductive rights, or who favor single-payer health care, or which donates to LGBT groups and Planned Parenthood, on the ground that such views are offensive to Christian or conservative residents.”
Those official efforts in Chicago (followed by mayors of other liberal cities) to punish Chick-fil-A due to its executive’s negative views on LGBT equality were widely condemned even by liberal commentators, who were horrified that mayors would abuse their power to condition zoning rights based on a private citizen’s political viewpoints on a controversial issue. Obviously, if a company discriminated against LGBT employees in violation of the law, it would be legitimate to act against them, but as Mother Jones’s Kevin Drum correctly noted, this was a case of pure censorship: “There’s really no excuse for Emanuel’s and [Boston Mayor Thomas] Menino’s actions. … You don’t hand out business licenses based on whether you agree with the political views of the executives. Not in America, anyway.”
The ACLU of Illinois also denounced the effort by Chicago against Chick-fil-A as “wrong and dangerous,” adding: “We oppose using the power and authority of government to retaliate against those who express messages that are controversial or averse to the views of current office holders.” That, by definition, is the only position that a genuine free speech defender can hold — regardless of agreement or disagreement with the specific political viewpoint being punished.
Last week, the ACLU’s Senior Legislative Counsel Kate Ruane explained why even the modified, watered-down, fully bipartisan version of the Israel oath bill pending in the U.S. Congress, and especially the already enacted bills in 26 states of the kind that just resulted in Amawi’s termination, are a direct violation of the most fundamental free speech rights:
This is a full-scale attack on Americans’ First Amendment freedoms. Political boycotts, including boycotts of foreign countries, have played a pivotal role in this nation’s history — from the boycotts of British goods during the American Revolution to the Montgomery Bus Boycott to the campaign to divest from apartheid South Africa. And in NAACP v. Claiborne Hardware, the Supreme Court made clear that the First Amendment protects the right to participate in political boycotts.
The lawsuit which Amawi filed similarly explains that “economic boycotts for the purposes of bringing about political change are entrenched in American history, beginning with colonial boycotts on British tea. Later, the Civil Rights Movement relied heavily on boycotts to combat racism and spur societal change. The Supreme Court has recognized [in Claiborne] that non-violent boycotts intended to advance civil rights constitute ‘form[s] of speech or conduct that [are] ordinarily entitled to protection under the First and Fourteenth Amendments.'”
Who can justify that — as a condition for working with speech-impaired and developmentally disabled children — Amawi is forced by the state to violate her conscience and renounce her political beliefs by buying products from a country that she believes (in accordance with the U.N.) is illegally and brutally occupying land that does not belong to it? Whether or not you agree with her political view about Israel and Palestine, every American with an even minimal belief in the value of free speech should be vocally denouncing the attack on Amawi’s free speech rights and other Americans who are being similarly oppressed by these Israel-protecting censorship laws in the U.S.
As these Israel oath laws have proliferated, some commentators from across the ideological spectrum have noted what a profound threat to free speech they pose. The Foundation for Middle East Peace’s Friedman, for instance, explained that “it requires little imagination to see how criminalizing Americans’ participation in political boycotts of Israel could pave the way for further infringements to Americans’ right to support or join internationally-backed protests on other issues.” She correctly described such laws as “a free speech exception for Israel.”
The libertarian lawyer Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies, similarly warned: “It is not a proper function of law to force Americans into carrying on foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad, or arbitrary.”
National Review’s Noah Daponte-Smith last year denounced the Cardin bill seeking to criminalize advocacy of the Israel boycott as “so mind-bogglingly stupid that it’s hard to know exactly what to say about it,” adding that the bill “penalizes political beliefs and so is both unconstitutional and unconscionable.” The conservative writer continued: “The senators who currently support it should be, quite frankly, ashamed of themselves; they have lost sight of one of the founding principles of American government, allowing it to be overshadowed by the spectral world of the Israeli–Palestinian dispute.”
Meanwhile, though, there is an entire pundit class that has made very lucrative careers from posing as defenders and crusaders for free speech — from Jonathan Chait, Bill Maher, and Bari Weiss to the glittering renegades of the intellectual dark web — who fall notoriously silent whenever censorship is aimed at critics of Israel (there are some rare exceptions, such as when Chait tweeted about Cardin’s bill: “BDS is awful, but this bill criminalizing it sounds insane and unconstitutional,” and when Weiss criticized Israel for barring a Jewish-American boycott advocate from entering).
CNN’s recent firing of Marc Lamont Hill due to his pro-Palestine speech, and the threats from the chair of Temple University’s Board of Trustees to fire Hill from his tenured position over his contempt for the views expressed in that speech, produced not a word of protest from this crowd. The same was true of the University of Illinois’s costly decision to rescind a teaching offer to Palestinian-American professor Steven Salaita for the thought crime of condemning Israel’s bombing of Gaza.
But as The Intercept has repeatedly documented, the most frequent victims of official campus censorship are not conservative polemicists but pro-Palestinian activists, and the greatest and most severe threat posed to free speech throughout the west is aimed at Israel critics — from the arresting of French citizens for the “crime” of wearing “Boycott Israel” T-shirts to Canadian boycott activists being overtly threatened with prosecution to the partial British criminalization of the boycott of Israel.
Put simply, it is impossible to be a credible, effective, genuine advocate of free speech and free discourse without objecting to the organized, orchestrated, sustained onslaught of attacks on the free speech and free association rights undertaken specifically to protect the Israeli government from criticism and activism. Self-professed free speech defenders who only invoke that principle when their political allies are targeted are, by definition, charlatans and frauds. Genuine free speech advocates object to censorship even when, arguably especially when, the free speech rights of their political adversaries are assaulted.
Anyone who stands by silently while Bahia Amawi is forced out of the profession she has worked so hard to construct all because of her refusal to renounce her political views and activism — while the young children she helps are denied the professional support they need and deserve — can legitimately and accurately call themselves many things. “Free speech supporter” is most definitely not one of them.