CCR and Palestine Legal Continue Legislative Advocacy Against Anti-Boycott Bills in Multiple States

Letters Submitted to Ohio Legislators with NLG of Ohio, to Georgia Governor, to New Jersey Legislators, and to Pennsylvania Senators with NLG; Report Mailed to Legislators in New York, California, Pennsylvania, New Jersey, and Ohio

 

Legislative memoranda


Following up on legislative memoranda submitted to legislators in New York and California, CCR and Palestine Legal sent letters with the National Lawyers Guild of Ohio to legislators in Ohio, as well as to the governor of Georgia, to New Jersey lawmakers, and to Pennsylvania Senators with the NLG, opposing anti-boycott bills in those states that threatened core First Amendment-protected activity and raised serious due process concerns. These legislative efforts are part of a growing trend of introducing anti-boycott legislation in numerous states and the U.S. Congress. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian human rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

 
Ohio


On April 18, 2016, CCR, Palestine Legal, and the NLG of Ohio sent a memorandum to Ohio lawmakers opposing H.B. 476, an anti-boycott bill that is pending in the Ohio House of Representatives. The bill would prohibit the state from contracting with companies that boycott Israel or disinvest from Israel as an “expression of protest against the policies of the government of Israel.”

The text of the memorandum is below.

via e-mail

April 18, 2016

Hon. Kirk Schuring
77 S. High Street, 11th Floor
Columbus, OH 43215

Re: First Amendment concerns with H.B. 476

Dear Rep. Schuring,

As civil and human rights organizations committed to upholding the rights of individuals and entities to express their political beliefs without fear of government retaliation or retribution, we write to convey our strong opposition to H.B. 476. This bill would prohibit the state from contracting with companies that boycott Israel or disinvest from Israel as an “expression of protest against the policies of the government of Israel.” Regardless of one’s views on Israel and Palestine, H.B. 476 targets core political speech and infringes on the freedom to express political beliefs.

Because H.B. 476 is unconstitutional and violates basic American values and democratic principles, we urge you to withdraw it.

A.    H.B. 476 targets core political speech in violation of the First Amendment

H.B. 476 was introduced at a time when Palestinian human rights activists in the United States and elsewhere have embraced boycotts as a way to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights. This bill seeks to stifle this human rights movement by targeting companies that decide for ethical reasons to boycott Israel because of its human rights abuses, and denying such companies the opportunity to enter into contracts with any state entity.

But government actions and restrictions cannot be based on the desire to punish First Amendment activities that aim to encourage social and political change in a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[1] The Court has specifically held that boycotts “to bring about political, social and economic change,” like human rights boycotts of Israel, are unquestionably protected under the First Amendment.[2]

It is undisputed that individuals, institutions, and companies may boycott in response to issues of public concern, as some have done historically to challenge racial segregation in the U.S., the apartheid regime in South Africa, and currently, fossil fuel companies. Moves to boycott Israel cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such a differentiation would constitute viewpoint discrimination prohibited by the First Amendment.

B.     Denial of public contracts, where motivated by a desire to suppress speech, violates the First Amendment

The United States Supreme Court has repeatedly affirmed that government officials’ determinations about what views are acceptable cannot infringe on the First Amendment-protected right to freely express political views―however controversial or unpopular.[3] Thus, in deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, “[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”[4]

Yet this is precisely what H.B. 476 would do. By denying public contracts to businesses because they boycott Israel, H.B. 476 seeks to penalize and inhibit protected speech. “Such interference with constitutional rights,” the Court stated, “is impermissible.”[5] This bill represents an action by public officials to thwart or penalize speech activities because of the officials’ disapproval of the viewpoint expressed, and therefore is exactly the type of action that courts have recognized violates the First Amendment. If passed, it could be subject to constitutional challenge.

C.    Penalizing companies that boycott or disinvest from Israel will have a chilling effect on protected speech

H.B. 476 also infringes on protected First Amendment activities by subjecting political positions to government approval and penalty. If enacted, this bill will chill free speech rights by effectively dictating that a position supporting human rights is unacceptable. Businesses may refrain from adopting ethical political stances regarding Israel/Palestine―a matter of public concern―if they know that making business decisions based on human rights concerns could result in the denial of a contract with the state.

In addition, this bill would also discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. While the bill does not directly prohibit such advocacy, it would effectively chill advocates’ voices by undermining their goal of influencing companies to take ethical political stances, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[6] Even if other expressive activity, such as student and community activism urging companies to boycott Israel and respect Palestinian human rights, is not prohibited by this bill, such speech activities are likely to be chilled by this legislation.

D.    Conclusion

We are committed to upholding the First Amendment rights of those opposing human rights abuses, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government obstruction. H.B. 476 would punish use of an honored American tactic to effect political change, solely because public officials disagree with that tactic in this context. This bill is constitutionally indefensible, and its passage would invite a legal challenge in order to protect the right to engage in speech activities such as boycotts intended to effect social, political and economic change. Allowing this bill to stand would threaten a crucial vehicle by which individuals and groups can make their collective voices heard.

Sincerely,

Rahul Saksena
Staff Attorney, Palestine Legal

Maria LaHood
Deputy Legal Director, Center for Constitutional Rights

Reem Subei
Regional Representative, National Lawyers Guild of Ohio



[1] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982) (citing Carey v. Brown, 447 U. S. 455).  

[2] Id.

[3] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”).

[4] O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

[5] Id.

[6] Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 421 (S.D.N.Y. 1999).

 

Georgia


On April 18, 2016, CCR and Palestine Legal sent a memorandum to Georgia Governor Nathan Deal opposing S.B. 327, an anti-boycott bill that would prohibit the state from contracting with individuals and companies that boycott Israel and “Israeli-controlled territories.” The bill passed the Georgia Senate in February and the Georgia House in March, proceeding to the governor on March 31, 2016 to be signed into law or vetoed.

The text of the memorandum is below.

via e-mail

April 18, 2016

Hon. Nathan Deal
Office of the Governor
206 Washington Street
111 State Capitol
Atlanta, GA 30334

Re: First Amendment concerns with S.B. 327

Dear Governor Deal,

As civil and human rights organizations committed to upholding the rights of individuals and entities to express their political beliefs without fear of government retaliation or retribution, we write to convey our strong opposition to S.B. 327. This bill would prohibit the state from contracting with individuals and companies that boycott Israel and “Israeli-controlled territories.”  Regardless of one’s views on Israel and Palestine, S.B. 327 targets core political speech and infringes on the freedom to express political beliefs.

Because S.B. 327 is unconstitutional and violates basic American values and democratic principles, we urge you to veto it.

A.    S.B. 327 targets core political speech in violation of the First Amendment

S.B. 327 was introduced at a time when Palestinian human rights activists in the United States and elsewhere have embraced boycotts as a way to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights. This bill seeks to stifle this human rights movement by targeting individuals and companies that decide for ethical reasons to boycott Israel because of its human rights abuses, and denying such individuals and companies the opportunity to enter into contracts with any state entity.

But government actions and restrictions cannot be based on the desire to punish First Amendment activities that aim to encourage social and political change in a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[1] The Court has specifically held that boycotts “to bring about political, social and economic change,” like human rights boycotts of Israel, are unquestionably protected under the First Amendment.[2]

It is undisputed that individuals, institutions, and companies may boycott in response to issues of public concern, as some have done historically to challenge racial segregation in the U.S., the apartheid regime in South Africa, and currently, fossil fuel companies. Moves to boycott Israel cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such a differentiation would constitute viewpoint discrimination prohibited by the First Amendment.

B.     Denial of public contracts, where motivated by a desire to suppress speech, violates the First Amendment

The United States Supreme Court has repeatedly affirmed that government officials’ determinations about what views are acceptable cannot infringe on the First Amendment-protected right to freely express political views―however controversial or unpopular.[3] Thus, in deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, “[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”[4]

Yet this is precisely what S.B. 327 would do. By denying public contracts to individuals and businesses because they boycott Israel, S.B. 327 seeks to penalize and inhibit protected speech. “Such interference with constitutional rights,” the Court stated, “is impermissible.”[5] This bill represents an action by public officials to thwart or penalize speech activities because of the officials’ disapproval of the viewpoint expressed, and therefore is exactly the type of action that courts have recognized violates the First Amendment. If passed, it could be subject to constitutional challenge.

C.    Penalizing those that boycott Israel will have a chilling effect on protected speech

S.B. 327 also infringes on protected First Amendment activities by subjecting political positions to government approval and penalty. If enacted, this bill will chill the free speech rights of individuals and businesses by effectively dictating that a position supporting human rights is unacceptable. These individuals and businesses may refrain from adopting ethical political stances regarding Israel/Palestine―a matter of public concern―if they know that making business decisions based on human rights concerns could result in the denial of a contract with the state.

In addition, this bill would also discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. It would effectively chill advocates’ voices by undermining their goal of influencing companies to take ethical political stances, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[6]

D.    Conclusion

We are committed to upholding the First Amendment rights of those opposing human rights abuses, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government obstruction. S.B. 327 would punish individuals and companies that use an honored American tactic to effect political change, solely because public officials disagree with that tactic in this context. This bill is constitutionally indefensible, and its passage would invite a legal challenge in order to protect the right to engage in speech activities such as boycotts intended to effect social, political and economic change. Allowing this bill to stand would threaten a crucial vehicle by which individuals and groups can make their collective voices heard.

Sincerely,

Rahul Saksena
Staff Attorney, Palestine Legal

Maria LaHood
Deputy Legal Director, Center for Constitutional Rights



[1] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982) (citing Carey v. Brown, 447 U. S. 455).  

[2] Id.

[3] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”).

[4] O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

[5] Id.

[6] Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 421 (S.D.N.Y. 1999).

 

New Jersey


On June 24, 2016, CCR and Palestine Legal sent a memorandum to New Jersey Assembly and Senate members opposing A925 and S1923, anti-boycott bills that would create a blacklist of companies that abide by BDS campaigns for Palestinian rights and prohibit the state from investing its pension or annuity funds in them.

The text of the memorandum is below.

LEGISLATIVE MEMORANDUM

Subject:       Anti-Boycott Bills, A925 and S1923
Position:     Oppose
Date:              June 24, 2016

As civil and human rights organizations committed to upholding the rights of individuals and entities to express their political beliefs without fear of government retaliation or retribution,[1] we write to convey our strong opposition to A925 and S1923. These bills would require New Jersey to create a blacklist of companies that abide by boycott, divestment, and sanctions (BDS) campaigns for Palestinian rights and bar the state from investing its pension or annuity funds in them.

Despite recent amendments, A925 and S1923 are still unconstitutional and violate basic American values and democratic principles. Regardless of one’s views on Israel and Palestine, A925 and S1923 target core political speech and infringe on the freedom to express political beliefs.

We urge you to oppose A925 and S1923.

A.    Denial of public investments, where motivated by a desire to suppress core political speech, violates the First Amendment

A925 and S1923 were introduced at a time when Palestinian human rights activists in the United States and elsewhere have embraced boycotts as a way to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights. These bills seek to stifle this human rights movement by blacklisting companies that decide for ethical reasons to boycott Israel because of its human rights abuses, and prohibiting the state from investing in blacklisted companies.

Government actions and restrictions cannot be based on the desire to punish First Amendment activities that aim to encourage social and political change in a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[2] The Court has specifically held that boycotts “to bring about political, social and economic change,” like human rights boycotts of Israel, are unquestionably protected under the First Amendment.[3]

The state may not condition the receipt of certain government benefits on the requirement that a person forgo core political speech activity or certify that their political views are acceptable to state officials.[4] Allowing for such conditions would violate First Amendment rights by compelling speech, and would undermine the First Amendment by permitting the state to dictate preferred political views indirectly where it cannot do so directly. By denying public investment in businesses because they boycott Israel, A925 and S1923 seek to unconstitutionally penalize and inhibit protected speech.

B.     Despite amendments, A925 and S1923 are still unconstitutional

On June 16, amendments were adopted to A925 and S1923, in an apparent effort to alleviate constitutional concerns with the bill. Unfortunately, the amendments did not overcome A925 and S1923’s constitutional problems. The amendment deleted the words “politically motivated” as an element of the bills’ definition of “boycott.”[5] In doing so, the bills now cover a broader range of boycotts – those that are politically motivated and those that are not. Broadening the scope of the bills does not remedy their unconstitutionality.

C.    Penalizing those that boycott Israel will have a chilling effect on protected speech

A925 and S1923 also infringe on protected First Amendment activities by subjecting political positions to government approval and penalty. If enacted, these bills will chill the free speech rights of individuals and businesses by effectively dictating that a position supporting human rights is unacceptable. These individuals and businesses may refrain from adopting ethical political stances regarding Israel/Palestine―a matter of public concern―if they know that making business decisions based on human rights concerns could result in the denial of state investments.

In addition, these bills would discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. They would effectively chill advocates’ voices by undermining their goal of influencing companies to take ethical political stances, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[6]

D.    Conclusion

We are committed to upholding the First Amendment rights of those opposing human rights abuses, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government obstruction. A925 and S1923 would punish individuals and companies that use an honored American tactic to effect political change, solely because public officials disagree with that tactic in this context. These bills are constitutionally indefensible, and their passage could invite a legal challenge in order to protect the right to engage in speech activities such as boycotts intended to effect social, political and economic change. Allowing these bills to stand would threaten a crucial vehicle by which individuals and groups can make their collective voices heard.



[1] For more information, visit Palestine Legal (www.palestinelegal.org) and Center for Constitutional Rights (www.ccrjustice.org).

[2] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982) (citing Carey v. Brown, 447 U. S. 455).  

[3] Id.

[4] See Regan v. Taxation with Representation of Washington (1983) 461 U.S. 540, 545, citing Perry v. Sindermann (1958) 408 U.S. 593, 597; see also Speiser v. Randall (1958) 357 U.S. 513, especially at 518-519;  Federal Communications Commission v. League of Women Voters (1984) 468 U.S. 364; Legal Services Corporation v.Velazquez (2001) 531 U.S. 533; Rumsfeld v. Forum for Academic and Institutional Rights (2006) 574 U.S. 47, 59.); O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

[5] The original bill defined “boycott" as “engaging in actions that are politically motivated and are intended to penalize, inflict economic harm on, or otherwise limit commercial relations with another state or nation.” The amended bill removed the words “politically motivated and are” from the definition.

[6] Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 421 (S.D.N.Y. 1999).

 

Pennsylvania


On October 24, 2016, CCR, Palestine Legal, and the National Lawyers Guild sent a memorandum to Pennsylvania Senate members opposing HB 2107, a bill that prohibits state agencies from contracting with companies unless they certify that they are not engaged in boycotts based on protected classes or on "national affiliation," which is vague and not a protected class. The financial penalty for the state's determination that a certification is false is either $250,000 or twice the amount of the contract, whichever is greater. Though the bill does not explicitly mention BDS, lawmakers' intention to suppress BDS campaign efforts through the bill is clear from its "declaration of purpose" and public framing.  Pennsylvania Governor Tom Wolf signed the bill into law on November 4, 2016.

The text of the memorandum is below.

October 24, 2016

Hon. Jake Corman
Majority Leader, Pennsylvania State Senate
350 Main Capitol
Harrisburg, PA 17120

Re: HB 2107 threatens First Amendment-protected speech and must be vetoed

Dear Sen. Corman:

As civil and human rights organizations committed to upholding the rights of individuals to express their political beliefs without fear of government retaliation or retribution,[1] we write to convey our strong opposition to HB 2107. HB 2107 inaccurately depicts an international human rights movement as motivated by discrimination, and its intent is to target a particular political viewpoint for differential treatment by the state merely because the bill’s sponsors disagree with that viewpoint. Because HB 2107 would suppress, chill, and possibly punish First Amendment-protected speech and activity, we call on you to withdraw this bill. 

On its face, the bill prohibits state departments from contracting with companies unless they certify – under penalty of enormous civil sanction of $250,000 or twice the amount of the contract – that they are not engaged in boycotts based on enumerated protected classes (in addition to “national affiliation,” which is vague and not a protected class). But the legislation’s declared purpose and the sponsor’s official memorandum in support of the bill are clear that its intent is to target boycotts against Israel.  Boycotts against Israel because of its violations of international law are constitutionally protected and do not target persons or entities based on their national origin, religion, or other protected class. Further, “national affiliation,” a vague term that is not a legal term of art, could be used as a proxy for viewpoint discrimination.

The bill’s stated purpose of targeting boycotts of Israel, its vagueness, its enormous financial penalty, and its potential for misuse will chill and suppress speech protected by the United States Constitution.

A. Understanding boycott, divestment, and sanctions campaigns for Palestinian rights

One tactic of the global movement for Palestinian rights is to boycott, divest from, and sanction (BDS) Israel until it complies with international law and respects Palestinian rights, a call initiated by Palestinian civil society in 2005, following the example of the struggle against apartheid South Africa. BDS is a peaceful strategy that allows people of conscience to play an effective role in the Palestinian struggle for freedom, justice, and equality in their homeland when all other diplomatic efforts have failed to achieve their rights.

The Palestinian-led call for BDS urges nonviolent pressure on Israel until it complies with international law by meeting three demands: first, ending its occupation and colonization of all Arab lands and dismantling the Wall; second, recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and third, respecting, protecting, and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.[2]

Supporters of BDS include South African rights activist Archbishop Desmond Tutu and “The Color Purple” author Alice Walker, among many others.[3] Religious institutions, including the United Church of Christ[4] and the Presbyterian Church (USA), have embraced BDS,[5] as have many racial justice activists,[6] labor organizations,[7] and a growing number of everyday Americans.[8]

BDS campaigns do not target individuals based on their Israeli nationality; rather, they target Israeli institutions because of their ties to state policy, or corporations for their complicity in human rights violations. Similarly, BDS campaigns do not target institutions or individuals based on Jewish identity. In fact, proponents of BDS campaigns often express their opposition to all forms of racism, which includes anti-Semitism and anti-Arab racism.[9]

B. The goal of HB 2107 is to punish, suppress, and chill BDS campaigns for Palestinian freedom

HB 2107’s wording raises more questions than answers, and suggests a fundamental misunderstanding of BDS campaigns. It is clear that the goal of HB 2107 is to counter BDS campaigns for Palestinian rights. The bill’s “declaration of purpose” states that “Israel is America’s dependable, democratic ally in the Middle East” and that “it is in the interest of the United States and the Commonwealth to stand with Israel and other countries by promoting trade and commercial activities and to discourage policies that disregard that interest.” The sponsor’s official memorandum accompanying the bill states that the intent of the bill is to “prohibit the Department of General Services (DGS) from entering into a contract with an entity that is engaging in an economic boycott against Israel.”[10]

However, if enacted, HB 2107 would prohibit Pennsylvania from contracting with companies, organizations, associations, and other entities that boycott another person or entity when the “action is based on race, color, religion, gender or national affiliation or origin of the targeted person or entity.” In other words, the bill would prevent the state from contracting with companies and other entities that engage in certain discriminatory practices.

While the unenforceable “declaration of purpose” and the public framing of HB 2107 make it clear that the bill’s purpose is to suppress, punish, and/or chill BDS campaigns, the bill’s text suggests otherwise. BDS campaigns are not motivated by or based on discrimination (national origin or otherwise). Rather, as described above, BDS campaigns are motivated by opposition to Israeli government policies and violations of international law.

If passed, the bill will create substantial confusion. Prospective contractors that support BDS could correctly certify that they are not engaged in boycotts as defined by the bill, because BDS campaigns are not based on race, color, religion, gender or national origin (we separately address “national affiliation” below). Rather, BDS campaigns target Israeli institutions because of their ties to state policy, or corporations (including U.S. corporations) for their complicity in human rights violations.

But by requiring prospective contractors to certify that their political viewpoints are not based on discrimination, HB 2107 opens the floodgates for investigations by the Department of General Services and the Attorney General into the thoughts and beliefs motivating a prospective contractor’s support for Palestinian human rights.

Moreover, if a certification is determined to be false, the legislation imposes severe penalties of $250,000 or twice the amount of the contract, whichever is greater. The potential for such a penalty and its overbroad and incorrect application would greatly compound the chill of constitutionally protected speech. Prospective contractors who take an ethical position to boycott companies or institutions complicit in Israeli human rights abuses, but who are not engaged in discriminatory conduct prohibited by HB 2107, may decide to halt their constitutionally-protected boycott, fearing an exorbitant financial penalty if HB 2107 is incorrectly interpreted.

C.    HB 2107 targets core political speech in violation of the First Amendment

HB 2107, which requires prospective contractors to certify that they do not engage in boycotts targeting specified protected classes, is drafted as an anti-discrimination law. As addressed above, because BDS campaigns are not motivated by discrimination, HB 2107 should not actually govern BDS campaigns. However, the bill confuses its apparent anti-discrimination purpose by including among its list of protected classes the term “national affiliation.” National affiliation is not a pre-existing protected class, nor is it a legal term of art.  Because of its vagueness – it is unclear what a boycott motivated by “national affiliation” is – it could be used to discriminate on the basis of viewpoint.

But government actions and restrictions cannot be based on the desire to punish or suppress First Amendment activities that aim to encourage social and political change in a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[11] The Court has specifically held that boycotts “to bring about political, social and economic change,” like human rights boycotts of Israel, are unquestionably protected under the First Amendment.[12]

Further, government officials’ determinations about what views are acceptable cannot infringe on the First Amendment-protected right to freely express political views – however controversial or unpopular.[13] In deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, “[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”[14]

It is undisputed that individuals, institutions, and companies may boycott in response to issues of public concern, as many have done historically to challenge racial segregation in the U.S., poor labor standards for farm workers in California, the apartheid regime in South Africa, and, currently, fossil fuel companies and the prison industry. BDS campaigns for Palestinian rights cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such a differentiation would constitute viewpoint discrimination prohibited by the First Amendment.

This bill represents an action by public officials to thwart or penalize protected speech activities because of the officials’ disapproval of the viewpoint expressed. There is no question that the bill is aimed at suppressing and punishing BDS campaigns, as discussed above. “Such interference with constitutional rights,” the Court has stated, “is impermissible.”[15]

D.    Subjecting to scrutiny those that boycott Israel will have a chilling effect on protected speech

HB 2107 infringes on protected First Amendment activities by subjecting political positions to government suspicion, investigation, approval, and penalty. If enacted, this bill will chill the free speech rights of individuals and businesses by effectively casting a shadow of suspicion over their position on a pressing human rights issue. Further, the vagueness of “national affiliation”– and the uncertainty that results from this vagueness – could deter prospective contractors from engaging in constitutionally-protected activity. Whether or not actual imposition of the bill’s newly created civil penalty ensues, the specter of government investigation into the motivation behind one’s support for BDS campaigns is likely to chill protected speech and conduct. Individuals and businesses may refrain from adopting ethical political stances or making ethical business decisions if they know that decisions based on human rights concerns could result in the denial of state contracts and/or an inquiry into their motivations, possibly leading to a colossal penalty.

In addition, this bill would discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. It would effectively chill advocates’ voices by undermining their goal of influencing companies to take ethical political stances, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[16]

E.     Conclusion

We are committed to upholding the First Amendment rights of those advocating for compliance with international law and on behalf of human rights, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government obstruction, investigation, and penalty. HB 2107 could be used to punish individuals and companies that use an honored American tactic to effect political change, solely because public officials disagree with that tactic in this context. This bill is constitutionally indefensible, and its enactment could invite a legal challenge in order to protect the right to engage in speech activities such as boycotts intended to effect social, political, and economic change.

Allowing HB 2107 to pass would threaten a crucial vehicle by which individuals and groups can make their collective voices heard. We call on you to withdraw it.

Sincerely,

Maria LaHood
Deputy Legal Director
Center for Constitutional Rights

Rahul Saksena
Staff Attorney
Palestine Legal

Natasha Lycia Ora Bannan
President
National Lawyers Guild

Cc: Members of the Pennsylvania State Senate, Rep. Matt Baker    



[1] Palestine Legal (www.palestinelegal.org) is dedicated to protecting the civil and constitutional rights of people in the U.S. who speak out for Palestinian freedom. The Center for Constitutional Rights (www.ccrjustice.org) is dedicated to advancing and protecting the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights. The National Lawyers Guild (www.nlg.org) unites lawyers, law students, legal workers, and jailhouse lawyers who recognize the importance of safeguarding and extending the rights of workers, women, LGBTQ people, farmers, people with disabilities, and people of color.

[2] Read more about BDS at www.bdsmovement.net.

[3] See Palestinian BDS National Committee, Cultural Boycott, https://bdsmovement.net/cultural-boycott.  

[4] United Church of Christ, UCC votes for divestment, boycotts of companies that profit from occupation of Palestinian territories, June 30, 2015, http://www.ucc.org/news_general_synod_israel_palestine_resolution_06302015.

[5] Laurie Goodstein, Presbyterians vote to divest holdings to pressure Israel, New York Times, June 20, 2014, http://www.nytimes.com/2014/06/21/us/presbyterians-debating-israeli-occupation-vote-to-divest-holdings.html.

[6] See, e.g., The Movement for Black Lives, A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice: Invest-Divest, https://policy.m4bl.org/invest-divest.

[7] See Vijay Prashad, America’s Labor Unions are Increasingly Standing with Palestine, Alternet, April 19, 2016, http://www.alternet.org/labor/americas-labor-unions-are-increasingly-standing-palestine.

[8] Haaretz, Survey: One-third of Americans support boycotting Israel, May 30, 2016, http://www.haaretz.com/israel-news/1.722327.

[9] See Palestine Legal (formerly Palestine Solidarity Legal Support), Boycott and Divestment, Frequently Asked Legal Questions, March 2015, http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/55a006a3e4b01f5eb3cfd32e/1436550819443/Legal+FAQ+BDS+March+2015.pdf.

[10] Rep. Matthew E. Baker, House Co-Sponsorship Memorandum: DGS Contract Reform, March 21, 2016, http://www.legis.state.pa.us//cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick=20150&cosponId=19907. Moreover, Israel advocacy organizations have publicly described HB 2107 as an anti-BDS bill. See, e.g., StandWithUs, Pennsylvania Senate Government Committee passes anti-BDS bill (HB 2107) by a unanimous vote on Sept. 27, 2016, https://www.standwithus.com/news/article.asp?id=4908.

[11] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982) (citing Carey v. Brown, 447 U. S. 455).  

[12] Id.

[13] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”).

[14] O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

[15] Perry v. Sindermann, 408 U.S. 593, 597 (1972).

[16] Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 421 (S.D.N.Y. 1999).

 

Report mailing


On April 28, 2016, CCR and Palestine Legal sent copies of their report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S., to one hundred lawmakers in five states who were considering legislation aimed at punishing, suppressing, and chilling Palestinian human rights advocacy, including through the creation of McCarthyist blacklists of companies, organizations, and, in some cases, individuals who advocate for Palestinian rights. The report documents a pattern of suppression that targets protected speech in favor of Palestinian rights.

Palestine Legal responded to 240 incidents of censorship, punishment, and other burdening of advocacy for Palestinian rights in 2015. While the vast majority of those incidents occurred on college and university campuses, lawmakers in Congress and at least 21 states introduced – often at the behest of Israel advocacy organizations – more than two dozen bills aimed at curbing Palestinian rights advocacy.

CCR and Palestine Legal sent copies of their report to legislative leaders in the following states:

For more information about these bills, including a list of states where they have been introduced, visit http://palestinelegal.org/righttoboycott.

The text of the cover letter sent alongside the report to New York lawmakers is below.

April 28, 2016

Dear Assembly Member:

Our organizations, Palestine Legal and the Center for Constitutional Rights, write to share with you our enclosed report, “The Palestine Exception to Free Speech: A Movement Under Attack in the US,” documenting a pattern of suppression that targets protected speech in favor of Palestinian rights. The report is also available online at http://palestinelegal.org/the-palestine-exception.

Palestine Legal is dedicated to advancing the constitutional rights of people in the U.S. who advocate for Palestinian freedom. The Center for Constitutional Rights has been dedicated to advancing and protecting the rights guaranteed by the United States Constitution, including the First Amendment, for fifty years.

The global movement to boycott, divest from, and sanction (BDS) Israel until it complies with international law and respects Palestinian rights was initiated by Palestinian civil society in 2005 and has gained momentum in the U.S. in recent years. BDS is a nonviolent strategy that allows people of conscience to play an effective role in the struggle for freedom, justice, and equality for Palestinians in their homeland when all other diplomatic efforts have failed to achieve their rights. Those who support human rights boycotts―like the boycott of Israel―see them as a peaceful means of putting an end to injustice, just as supporters of the Montgomery bus boycott in the 1950s, the California grape boycott in the 1960s, and the boycott of apartheid South Africa in the 1980s saw those boycotts as a means of ending injustices. 

As the BDS movement grows in the U.S., so too have efforts to suppress BDS activism. Our report documents how Israel advocacy organizations routinely level false accusations of antisemitism and support for terrorism against Palestinian rights activists and even threaten and bring meritless legal complaints to restrict protected speech. Many of these attacks occur on college campuses. Universities have sometimes responded to pressure by stifling criticism of Israeli policy on campus, whether through erecting bureaucratic barriers to thwart advocacy for Palestinian rights, cancelling or restricting events, disciplining students or groups, or punishing faculty who speak out.

We are increasingly seeing lawmakers—often at the behest of Israel advocacy organizations—introduce bills aimed at suppressing Palestinian rights advocacy.  Last year, Palestine Legal responded to 240 incidents of censorship, punishment, or other burdening of advocacy for Palestinian rights. This includes the introduction of legislation aimed at punishing, suppressing, or chilling Palestinian rights activism. Lawmakers in Congress and at least sixteen states are currently considering more than two dozen bills aimed at countering the constitutionally-protected right to engage in or advocate for BDS campaigns for Palestinian freedom.

Here in New York, lawmakers have introduced two such bills, S6378A/A9036 and S6086/A8220. These bills are misguided and unconstitutional attempts to punish and chill First Amendment-protected speech activity related to Palestinian human rights. We urge you to honor your commitment to upholding the U.S. Constitution by opposing these bills.

We trust that you will reaffirm bedrock values of free expression by opposing any legislation aimed at punishing constitutionally-protected boycott campaigns intended to bring about political, economic, or social change, including boycotts to pressure Israel to respect Palestinian rights. We hope the enclosed report will provide you with a broader context of the assault on advocacy for Palestinian rights and bolster your commitment to ensuring that expression on matters of public concern is not only tolerated in your state, but invited.

Please do not hesitate to contact us if you would like to discuss these issues.

Sincerely,

Dima Khalidi
Director, Palestine Legal
Cooperating Counsel, Center for Constitutional Rights

Maria C. LaHood
Deputy Legal Director
Center for Constitutional Rights

Encl.

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February 24, 2017