Judges across the country are greenlighting challenges to laws aiming to prohibit states from doing business with any organization that boycotts Israel. As the suits move through the courts, they are making clear the legal vulnerabilities of so-called anti-Boycott, Divestment, and Sanctions (BDS) laws and how the proponents of those laws might fix them.
The BDS movement encourages businesses to wage economic war on Israel by cutting all ties with the Jewish state. The BDS movement is popular on college campuses and has ties to terrorist groups and various anti-Israel figures. Republicans and Democrats alike have pushed for legislation keeping taxpayer dollars away from businesses affiliated with the movement. But legal challenges to anti-BDS laws are coming amid a wave of anti-Semitic street violence across the United States.
The latest challenge came on May 21 when U.S. District Judge Mark Cohen denied Georgia’s motion to dismiss a First Amendment challenge to its anti-BDS law in a 29-page decision that suggested the statute is unconstitutional. The decision follows similar rulings in Arizona, Kansas, Texas, and the Eighth U.S. Circuit Court of Appeals.
A majority of states have laws forbidding public contracting with entities that boycott Israel. Pro-Palestinian groups say those laws are unconstitutional because they punish people or businesses on the basis of their political expression. The states counter that they are not regulating speech but discriminatory conduct.
The courts have keyed in on two different problems with anti-BDS statutes. First, these laws can raise First Amendment issues when applied against certain parties, such as individual entrepreneurs or small businesses, for whom the speech-conduct distinction is fuzzy. Second, some of them include vague or overbroad definitions of "boycott." Proponents of anti-BDS legislation say both concerns are unfounded. Some states have already taken steps to fix their laws and head off future challenges.
The Georgia case offers a classic example of the First Amendment tripwire. The plaintiff is Abby Martin, a leftwing activist and filmmaker invited to keynote a conference at Georgia Southern University. Administrators extended a contract offering her an honorarium and other perks. Pursuant to state law, the contract included an anti-BDS provision. Martin sued.
In the May 21 decision, Cohen said Martin’s lawsuit can go forward because she had plausibly shown Georgia’s law violates the First Amendment.
A federal judge in Texas reached a similar conclusion about that state’s anti-BDS law. The state responded by amending its statute to say the anti-BDS law shall only apply to contracts greater than $100,000. That move effectively forecloses any possibility the law will be enforced against an individual or a sole proprietor, snuffing out free speech problems.
Rabbi Dr. Mark Goldfeder, a lawyer and scholar who has written extensively on BDS litigation, told the Washington Free Beacon that free speech objections to anti-BDS laws are especially curious coming from leftwing groups like the American Civil Liberties Union.
"If you look at the groups fighting the laws, like the ACLU for instance, it is surprising because they are arguing against literally the very same rule—that there is no First Amendment right to violate anti-discrimination laws—that they have championed publicly and consistently in other contexts when it better suited their ideological leanings, like when a baker has strong views on same-sex marriage," Goldfeder told the Free Beacon.
"It is hard not to wonder if the only difference is the relative popularity of the people being discriminated against," Goldfeder added.
Some states have also run into trouble defining pro-BDS activity in their anti-boycott laws. For example, Georgia’s law defines a boycott of Israel as refusing to deal, terminating business activities, or "performing other actions that are intended to limit commercial relations." Judge Cohen said that last provision seemed impermissibly vague because it leaves "a reasonable individual to speculate as to what conduct is prohibited."
Reviewing Arkansas’s virtually identical anti-BDS law on appeal, the Eighth Circuit said the "other actions" provisions could sweep up too much protected activity.
"We are not convinced, from a plain reading of the text, that the Act necessarily allows a company to post anti-Israel signs, donate to causes that promote a boycott of Israel, encourage others to boycott Israel, or even publicly criticize the Act," Judge Jane Kelly wrote. "If a company took any of these actions with the intent to ‘limit commercial relations with Israel’ as a general matter, that conduct would arguably fall within the prohibition."
Goldfeder told the Free Beacon that those decisions ignore basic rules of legal interpretation. An arguably ambiguous phrase like "other actions" should be understood in relation to its specific neighbors like "terminating business" or "refusal to deal," he said. And in general, when courts encounter language that plausibly has several meanings, they should avoid interpretations that create constitutional problems.
In any event, Goldfeder said the states can simply narrow their definitions or rely on courts to strike problematic clauses while leaving the rest of the statute alone.
The Georgia case is Martin v. Wrigley in the U.S. District Court for the Northern District of Georgia.