Texas court rules that anti-BDS contracts are unconstitutional

A US federal court has ruled that a Texas law requiring government contractors to certify that they are not engaged in boycotts of Israel or companies that do business with Israel is unconstitutional.

Texas Governor Abbot's statement on the law

The law was passed and signed into law in May of 2017 and was praised by Governor Greg Abbot in a news release: "I am proud to have commemorated Israel’s Independence Day by signing into law Anti-BDS legislation in Texas. As Israel's number one trading partner in the United States, Texas is proud to reaffirm its support for the people of Israel and we will continue to build on our historic partnership. Anti-Israel policies are anti-Texas policies, and we will not tolerate such actions against an important ally."

The original suit against the law

Edgar Saldivar, senior staff attorney to the Texas ACLU said: “This lawsuit is about fundamental First Amendment rights, which protect us all from having the government use its power to force us to choose one side or another in a public debate. Whatever you may think about boycotts of Israel, the bottom line is that political boycotts are a legitimate form of nonviolent protest. The state cannot use the contracting process as an ideological litmus test or to tell people what kind of causes they may or may not support.”

There four people for whom the suit was launched by the ACLU. John Pluecker is a freelance writer who lost two service contracts with University of Houston due to the law. George Hale a reporter for KETR who sing the certification against his will in order to keep his job. Obinna Dennar a Ph.D. candidate at Rice University. Dennar was forced to forfeit payment for judging at a debate tournament as he refused to sign the certification. Finally there was Zachary Abdelhadi, a student at Texas State University who had to forgo chances to judge high school debate tournaments.

Brian Hauss, an attorney at the ACLU's Speech, Privacy, and Technology project said the law was misguided and sought to undermine a type of protected expression that been part of US constitutional tradition since the country was founded.

Anti-BDS Texas law violates First Amendment of US Constitution

The judge ruled that HB89, the law, which came into effect in 2017 violates the First Amendment protection against government interference with political speech and expression. Tommy Buser-Clancy a staff attorney for the Texas ACLU who argued the motion to block the law in court said: “Today’s ruling is a victory for the free speech rights of all Texans. The right to boycott is deeply ingrained in American tradition, from our nation’s founding to today. The state cannot dictate the views of its own citizens on the Israel/Palestine conflict – or any issue – by preventing them from exercising their First Amendment right to boycott.”

Terri Burke, the executive director of the Texas ACLU said: “We applaud this decision, though nothing about it surprises us; in its decision the court has affirmed its understanding that this law was intended to chill the expression of personal opinion. By any name, that’s free speech and free speech is the north star of our democracy. It’s foundational, and this decision underlines that no issue of importance can be addressed if the speech about it is stymied, or worse, silenced.”

The suit was filed on behalf of four Texans who were forced to choose between signing away their right to boycott or losing job opportunities or income. One plaintiff John Pluecker said that the ruling goes beyond the plaintiffs in that all Texans need to know that their jobs will not be threatened by the state simply due to their political positions.

The entire decision can be found here. Similar laws have been blocked in Kansas and Arizona.

Previously published in the Digital Journal

In US state of Texas its Israel First

NT

Austin - A child language specialist, Bahia Amawi, a US citizen, has been told by authorities that she can no longer work with developmentally disabled, autistic, and speech-impaired students in Austin Texas,

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Amawi has worked for the last nine years for the Pfugerville Independent School District on a contract basis. However, when she came to renew the contract this year she noticed that there was a new addition. She had to certify that she does not and will not engage in a boycott of Israel or "otherwise take any action that is intended to inflict economic harm" on Israel. A lawsuit has been filed on her behalf in a federal court in the Western District of Texas, alleging a violation of her First Amendment right of free speech.

Bahia Amawi

Amawi was born in Austria. She received a master's degree in speech pathology back in 1999. Since then she has specialized in evaluation of young children with language difficulties. She has lived in the US for the last 30 years. She speaks English German and Arabic quite fluently. She began working in the Pflugerville Independent School District that includes Austin in 2009 on a contract basis. She works giving assessments and providing support for the county's growing Arabic-speaking immigrant community. Each year her contract has been renewed with no controversy or problem until this year.

She was prepared to renew her contract until she saw that she now had to certify that she does not currently boycott Israel and will not do so during the term of her contract along with a promise to do nothing that will bring economic harm etc. on Israel as mentioned earlier.

The Intercept notes: "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.”"

In response to a complaint by Amawi her supervisor tried to see if there was any way around the barrier to Amawi being employed but eventually told her that she would have to sign the oath because the district would be legally barred from paying her if she did not.

Amawi is not the only victim of this requirement as there will be no one who can provide the service that she provides for the children she served since she is likely the only Arabic speaking person qualified to do her job.

The Texas Israel anti-BDS oath law

The Texas law against Boycott, Divestment, and Sanctions (BDS) on Israel was enacted on May 2 last year by the Texas State Legislature and signed into law two days later by Governor Greg Abbott. The bill passed the house unanimously 131 to 0. In the Senate there were 25 for and 4 against.

During the signing at the Austin Jewish Community Center Governor Abbott said: “Any anti-Israel policy is an anti-Texas policy.” The language of the bill was so sweeping that late last year some victims of Hurricane Harvey were told that could only receive state disaster relief it they first signed a pledge never to boycott Israel. The author of the bill, State Rep. Phil King said that this application of the bill was a misunderstanding but also admitted that the bill's purpose was to make sure that no public funds would ever go to any person who supports a boycott of Israel.

Other states have similar legislation

As the map shows at this site, 26 different states now also have similar laws barring state contractors from boycotting Israel. This includes not just Republican governed states but Democratic ones such as supposedly liberal California, and New York. There are also similar bills pending in 13 more states.

The contract, which stems from a 2017 law passed by the state’s Republican-held legislature and governor that prohibited state agencies from contracting with companies boycotting Israel, is the subject of a lawsuit filed this week by Amawi in federal district court in Austin.

The contract, which stems from a 2017 law passed by the state’s Republican-held legislature and governor that prohibited state agencies from contracting with companies boycotting Israel, is the subject of a lawsuit filed this week by Amawi in federal district court in Austin.

Several different parties speak out against the oath

The American Conservative writes: "No one should have to check his or her political rights at the door in order to be employed by the state of Texas or by any other government in this country. More broadly, no American should have to toe an ideological line created to shield a foreign government from the consequences of its policies. In addition to penalizing speech that the state wants to discourage and thus violating the Constitution, the Texas law betrays an excessive attachment to a foreign country. There is something deeply wrong when American lawmakers would sooner trample on the Constitution to demonstrate their solidarity with a client state on the other side of the planet. "

Some believe the oath is unconstitutional as Amawi claims: "Fred O. Smith, a constitutional law expert at Emory University, cited two Supreme Court precedents: a 1996 case that found that it was unconstitutional for government officials to retaliate against independent contractors for their speech, as well as 1976 ruling, Elrod v. Burns, that found it unconstitutional for governments to refuse to hire people for their political views, in most circumstances.“These principles taken together strongly suggest that refusing to renew a contract of someone who wishes to advocate a political position raises very serious constitutional concerns under those Supreme Court precedents,” Smith said."

Previously published in Digital Journal