A Lawyer Explains why the Anti-Boycott Bill is Unconstitutional

As the Maryland General Assembly debates the Zirkin/Kramer Anti-Boycott Bill (SB739/HB949), I wanted to provide you legal analysis of the constitutionality of these bills.

In the Baltimore Sun, Baltimore Jewish Council's Howard Libit and the Jewish Community Relations Center of Greater Washington's Ron Halber assert that: “government determines how taxpayer dollars are spent, and BDS supporters are free to engage in any personal actions they wish.” But is this really true? Does the government have the right to spend our tax dollars as it sees fit even if it infringes the rights of ordinary citizens like us? Of course it does not.

Here is why:

The Supreme Court has ruled it is unconstitutional to discriminate against political dissenters in the disbursement of public benefits and in contracts.

Advocates of the bill claim that their bill does not prohibit free speech, it simply prohibits the government from doing business with those who boycott. But the constitution views actions by the government differently from the actions of ordinary citizens. The government is not permitted to wield its power in a manner that would deprive a recipient of public benefits of the freedom of speech. Think about it. Do you want a government that is allowed to dole out contracts to its cronies and punish its political opponents? This would certainly be a recipe for corruption and would harm free and open public debate.


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Radio Debate about Anti-BDS Bill: Delegate Kramer vs. Delegate Tarlau. Our Side (Tarlau) Wins!


This morning on the Marc Steiner Radio Show, two Maryland State Delegates, Ben Kramer (D-Silver Spring) and Jimmy Tarlau (D-Mount Ranier) faced off against each other about the Anti-BDS bill. Ben Kramer is a sponsor of the bill. Jimmy Tarlau is an opponent of the bill.

You can listen to 22-minute-long debate here.

Delegate Tarlau did a fabulous job pointing out all the flaws in the bill -- most importantly that it is an assault on free speech.


Below you can read the entire transcript of the debate.

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Baltimore Sun Flags Anti-Boycott Bill as Violation of the First Amendment

The Baltimore Sun has written a great article explaining the contours of debate around the anti-Boycott Bill. Unfortunately for the bill supporters, it exposes the main problem with the bill. It's blatantly unconstitutional:

[Delegate Benjamin] Kramer denies the legislation would infringe on the rights of boycotters. He pointed to the strong economic relationship forged through Maryland's Declaration of Cooperation with Israel.

"There is nothing unconstitutional about saying we do not want to use taxpayer funds that would undermine state policy," he said.

[Donald F. Norris, director of the School of Public Policy at the University of Maryland, Baltimore County] questioned whether that logic will hold up in court.

"Now that the Supreme Court has told us money is speech, it will have First Amendment implications, which would make it unconstitutional," he said.

There is no way to square this circle. SB739/HB949 is fatally flawed. It cannot be fixed. It must be defeated. If you want to help defeat the bill, send a message to your legislator opposing it.

Come Join us February 6 for our Annapolis Lobby Night

Help us stop the Anti-BDS legislation being introduced in the 2017 Maryland General Assembly. Come join us for “F2B Lobby Night” in Annapolis on Monday February 6th as we urge our Maryland State legislators not to pass any anti-BDS legislation. 

  • When: 4 - 9 pm on Monday February 6, 2017
  • Where: Lowe House Office Building. 6 Bladen St Annapolis, MD 21401, Room #150
  • What do I need to bring? Just bring yourself. We will provide all the instructions, materials, refreshments, etc!

To RSVP: Please email me at susank@capconcorp.com with your address (to find your district) and what your availability is.

Remember, our Lobby Night is 4 - 9pm. But if you can only come for part of that time, you are still welcome!


BORDC/DDF, MCCRC oppose announced anti-BDS legislation on 1st, 14th Amendment grounds, circulate open letter to MD General Assembly

The Bill of Rights Defense Committee/Defending Dissent Foundation (BORDC/DDF) and the Montgomery County Civil Rights Coalition sent the letter below to all members of the Maryland General Assembly yesterday. It concerns reported plans by some of those members to legislate against the “Boycott, Divestment, Sanctions” of Israel (BDS) movement in Maryland. From the letter:

We recognize that the co-sponsors of the forthcoming bill feel passionately about their opposition to BDS, and that the First Amendment protects those views no less than it protects the views of those who support BDS. The First Amendment, however, prohibits one side of a contentious debate on a matter of great public interest from using the legislative process to silence the other.

Freedom2Boycott defends the 1st Amendment right to boycott, including the boycott of Israel known as BDS. Click to help! Find an Event


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