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.

 

In the case of Perry v. Sindermann, a public university board of regents refused to renew a professor’s employment contract for undisclosed reasons. The professor alleged that the university was unhappy with certain public criticisms he made of their management. The court states: “For at least a quarter-century, this Court has made clear that, even though a person has no ‘right’ to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if 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. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Such interference with constitutional rights is impermissible.”


These protections do not only extend to public employees, but to those who contract with the state. In the case of Board of Comm'rs, Wabaunsee Cty. v. Umbehr the county government attempted to terminate a contract with a trash collector because he had been vociferously critical of their decision-making. The Supreme Court determined that: "giv[ing] the government carte blanche to terminate independent contractors for exercising First Amendment rights . . . would leave [those] rights unduly dependent on whether state law labels a government service provider's contract as a contract of employment or a contract for services, a distinction which is at best a very poor proxy for the interests at stake."

 

In another case, O’Hare Trucking Co. v. City of Northlake, a suburban mayor refused to renew a contract with a local trucking company because its CEO had sided with the mayor’s opponent in a recent election. Justice Kennedy, writing for the majority, states: “Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their rights of speech and association.”

 

Lower courts have also ruled that the government may not wield its power against viewpoints it does not favor. In Brooklyn Institute of Arts v. the City of New York, Mayor Rudolph Giuliani tried to close the Brooklyn Museum of Art because the museum displayed a painting the mayor perceived as offensive to Catholics. His decision was overruled by the Eastern District of New York, which stated the following: “The City and the Mayor acknowledge that the art being shown at the Museum and the ideas which they find that art to express are within the protections of the First and Fourteenth Amendments. Contrary to their assertions, however, although they did not physically remove the art objects from the Museum, they are not insulated from a claim that they are violating the overwhelming body of First Amendment law establishing that government cannot suppress ideas indirectly any more than it can do so directly.”

 

Even though advocates for this bill claim it would not impact free speech, they have made their purpose clear in their public statements. They want to hinder the BDS movement because it espouses a viewpoint with which they disagree. Senator Bobby Zirkin states: “I just want to ensure that this ridiculous messenger movement against Israel never sees the light of day in our state,” in the Washington Jewish Week. Their actions are clearly improper and cannot be justified by their rationalizations.

 

How is this boycott different from the Export Administration Act, which prohibits companies from participating in the Arab League boycott? Doesn’t Maryland have laws prohibiting dealings with Iran?

 

Our government has the power to target the conduct of foreign governments, but not the political speech of citizens. In 1979, Congress passed a law to hinder the Arab League countries’ boycott of Israel. The Export Administration Act of 1979 (EAA) prohibits U.S. companies from complying with boycotts sponsored by foreign governments and was never challenged on the grounds that it stifles expression protected by the First Amendment. But the BDS movement is different from that boycott. The BDS movement is not sponsored by any government. BDS was initiated by Palestinian civil society organizations in 2005. It is a grassroots movement of citizens and people of conscience around the world who support Palestinian human rights and the redress of injustices done to them. While advocates have tried to link BDS to other boycotts directed at Israeli human rights violations of the past, there is simply no evidence to prove the links they wish to draw.

 

It is important to mention, as this note in the Harvard Law Review does, that EAA also passed before the decision in Claiborne Hardware (see below), which means that if a company wanted to participate in a government-sponsored boycott for reasons of political conscience, it may be able to claim that the EAA is also unconstitutional. Especially now, as the Supreme Court has determined in Citizens United and Hobby Lobby, that corporations have rights under the speech and religion clauses of the First Amendment, it is probable that EAA is no longer good law.

 

What about the riders to the Trade Promotion Authority bill in 2015? Didn’t Obama sign those into law?

 

In 2015, two provisions involving BDS were attached to the Trade Promotion Authority bill. These provisions compel the United States government to discourage boycotts targeting the Israeli-Palestinian conflict in its trade negotiations with the European Union. The Obama administration had such extreme reservations about these provisions that it issued a statement at the time of signing, stating that while his administration opposes boycotts to address the outstanding issues in the Israeli-Palestinian conflict, they also would not abandon fifty years of U.S. foreign policy opposing Israel’s expansionism in the West Bank.

 

This bill would create a blacklist of “persons” based on their speech

 

Regardless of what one personally thinks of the Boycotts, Divestment, Sanctions Movement, it is undoubtably a movement that advocates for political and social change.

 

The bill provides that a board create a list of "persons" boycotting Israel or Israeli controlled territory based on publicly available information. The bills define “persons” broadly, as “a natural person, corporation, company, limited liability company, business association, partnership, society, trust, or any other nongovernmental entity, organization, or group.” Nine major church denominations have adopted pro-boycott resolutions, which means that their branches here in Maryland could be impacted by this bill. Non-profit organizations providing important social services to the state and individual business owners, including Arabs and Muslims who engage in political speech, could also find themselves impacted.

 

In the United States, boycott is protected First Amendment expression.

 

In Claiborne Hardware v. NAACP, the NAACP boycotted businesses in Mississippi engaged in discriminatory behavior towards African American consumers. The U.S. Supreme Court held that the states have no right to “prohibit peaceful political activity such as that found in the boycott in this case.” (Claiborne Hardware v. NAACP 458 U.S. 886 (1982). The court states: “While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues has always rested on the highest rung of the hierarchy of First Amendment values." Even though the tactic of boycott involves not only speech, but social pressure, the Court determined that it is protected. “Petitioners admittedly sought to persuade others to join the boycott through social pressure and the "threat" of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” (Claiborne Hardware, 910).

 

Indeed, there are infinite examples of ordinary citizens using boycott as a tool to bring change. A few weeks ago, people around the country deleted the Uber ride sharing app from their phones in protest of the new administration’s immigration policy, after citizens learned the company’s CEO was advising the new president. The United States itself is a product of a boycott against British goods initiated by the First Continental Congress. Other famous boycotts include the Montgomery Bus Boycott and the Delano Grape Strike and Boycott.

 

Advocates for this law seeks to single out a particular boycott some members of the community don’t favor, and legislate it differently from all other grassroots political boycotts. It is clear viewpoint discrimination and lawmakers should not allow it to proceed.

 

If the legislature or Israel advocates don’t like the progress of this grassroots advocacy movement that favors a just peace between Israelis and Palestinians, they have no other choice but to deal with it the old fashioned way, through debate and discussion. They may not use their power as government officials to stop it. Like every other citizen, they must argue their case in response.


Additional Resources:

1. Congressional Research Service, Israel and the Boycott, Divestment, and Sanctions (BDS) Movement
2. Congressional Research Service, The Arab League Boycott of Israel
3. Analysis from the California Legislature (a similar bill was introduced last year there)
4. Harvard Law Review, South Carolina Disqualifies Companies Supporting BDS from Receiving State Contracts.

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