WA Court Dismisses Seven-Year Lawsuit Over Boycott of Israeli Goods


 
Center for Constitutional Rights, March 9, 2018

Olympia, WA – Today, a Washington State court ended a seven-year litigation battle against former volunteer board members of the Olympia Food Co-op over their decision to boycott Israeli goods. The lawsuit was first filed in 2011 by five co-op members seeking to block the co-op’s boycott and to collect monetary damages against the board members. Two of the five members pulled out of the case, and none of the defendants originally named in the case remains a board member of the co-op. The court granted the motion for summary judgment from the former board members, who were represented by Center for Constitutional Rights (CCR) and co-counsel, finding the plaintiffs had no standing to bring a case because they failed to show the co-op was injured.

“We are pleased that the court has dismissed this meritless lawsuit. It is a relief and a vindication for our clients, and a victory for everyone who supports the right to boycott,” said Center for Constitutional Rights Deputy Legal Director Maria LaHood, who argued today.

Earlier this week, CCR filed with the court a recently produced document (Exhibit B) in which plaintiffs celebrated the lawsuit’s success in discouraging other co-ops from boycotting Israeli goods.

“We’re delighted that the judge has decided to dismiss this retaliatory lawsuit and protect our clients’ First Amendment freedoms,” said Bruce E.H. Johnson of Davis Wright Tremaine LLP.

In 2017, the co-op board of directors passed a resolution affirming that the litigation—which was purportedly brought on behalf of the co-op—was not approved by the co-op, is not in the co-op’s interest, and should be dismissed.

Lawyers say the lawsuit is part of a broad and growing pattern of suppressing activism in support of Palestinian rights, a phenomenon that CCR and Palestine Legal have documented and called the “Palestine Exception” to free speech. CCR and Palestine Legal report the widespread use of administrative disciplinary actions, harassment, firings, legislative attacks, false accusations of terrorism and antisemitism, and baseless legal complaints. Between 2014 and 2016, Palestine Legal responded to 650 such incidents of suppression targeting speech supportive of Palestinian rights.

“We are thrilled to be found in favor of for a second time on this frivolous lawsuit. We are proud of our attorney team, and proud of our community for supporting us, and we are grateful for the outpouring of solidarity we’ve received from around the world,” said defendant Grace Cox. “Taking a stand for economic and social justice is at the heart of the co-op’s mission. Given Israel’s ongoing violations of Palestinian human rights, we would have failed in this mission had we not approved a boycott.”

The case was initially dismissed, in 2011, under a Washington State statute that protected against Strategic Lawsuits Against Public Participation (SLAPPs). The Washington Supreme Court later struck down the SLAPP law in 2015, sending the case back to the lower courts. After engaging in discovery, plaintiffs essentially abandoned the litigation until reviving it recently.

The Center for Constitutional Rights is counsel in Davis, et al., v. Cox, et al. with CCR cooperating counsel Barbara Harvey from Detroit, Michigan, along with Seattle attorneys Bruce E.H. Johnson and Brooke E. Howlett of Davis Wright Tremaine LLP.

For more information, visit CCR’s case page. For more information about Davis Wright Tremaine LLP, visit http://www.dwt.com.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

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March 5, 2018
Stop AIPAC: National Call-In Day

US Campaign for Palestinian Rights

CALL CONGRESS ON MONDAY, MARCH 5 – (202) 224-3121 – to say that the Israel Anti-Boycott Act is unjust and unconstitutional!

AIPAC is descending on Capitol Hill on Tuesday, March 6 to push their anti-Palestinian rights agenda – part of which is criminalizing our right to boycott.

We need to preempt their lobbying and tell our Members of Congress that we OPPOSE the Israel Anti-Boycott Act, a piece of legislation that would criminalize individuals exercising their First Amendment right to boycott Israel.

Learn more about it!


Call (202) 224-3121 to let Congress know:

    “I oppose the Israel Anti-Boycott Act (HR 1697/S 720) because we have the right to boycott until freedom is achieved for Palestinians in occupied territory, justice is guaranteed for Palestinian refugees who have a right to return, and equality is earned for Palestinian citizens of Israel. The Supreme Court, and most recently, a Federal District Court, have upheld our right to boycott. The Israel Anti-Boycott Act is both unjust and unconstitutional.”

Read our previous action alerts on this bill:
• “AIPAC is flailing” (October 17, 2017)
• “Punish Israel Boycotters? You, ACLU, and US Campaign Say No!” (June 20, 2017)
• “Are Your Members of Congress Trying to Criminalize BDS?” (May 18, 2017)
• “AIPAC Is Lobbying for this Today…” (March 28, 2017)

A History of Boycotts: Israel, South Africa and California

Pacifica Radio Letters and Politics, 02.14.18

Listen  Download  Open in iTunes

Today, Mitch Jeserich is in conversation with Sunaina Maira, Professor of Asian American Studies at the University of California, Davis, and author of the book Boycott!: The Academy and Justice for Palestine. She explains the whys and the wherefores of the boycott movement against Israel, and other historic boycotts as the one against South Africa and the one against grape growers in California during the 1970s.

 

 

Wisconsin should reject boycott bill;
it is not anti-Semitic

MJS-Leah-VukmirState Sen. Leah Vukmir (Megan Papachristou Photography)

Sandy Pasch, Milwaukee Journal Sentinel, Feb. 6, 2018

Legislation working its way through the state Legislature would prohibit Wisconsin businesses who sign on to the global Boycott, Divest and Sanctions (BDS) movement from receiving some state contracts.

And, unfortunately, Assembly Bill 553 and Senate Bill 450 are attracting bipartisan support because of a false conflation of BDS with anti-Semitism and discrimination.

But these bills are a mistake for Wisconsin at every level.

The bills would institute a level of bureaucracy in monitoring business negotiations in the state, constituting a dangerous erosion of democratic social control. If a company responded to a citizens’ BDS campaign to divest its interests, for example, that company would no longer be eligible for certain state contracts. And the several church synods that have elected to divest their pension funds would become ineligible to contract with the state to provide social services. These bills make the moral decisions of citizens and parishioners a barrier to free enterprise.

Historically, boycotts have been an important, nonviolent tool of dissent. A global boycott of South Africa, often compared in moral scope to the BDS movement, was decisive in ending the apartheid regime. The U.S. Supreme Court ruled decisively in NAACP v. Claiborne Hardware in 1982 that boycotts constitute protected speech, assembly, petition and association. Just last month, in the first federal test of anti-boycott laws at the state level, a federal judge ruled that Kansas’ anti-boycott law was an unconstitutional denial of free speech.

Why is the State of Wisconsin trying to pass a bill that has already been judged unconstitutional and whose true purpose is to shield Israel from criticism about legitimate human rights issues?

Introduced by state Sen. Leah Vukmir (R-Brookfield) and state Rep. Dale Kooyenga (R-Brookfield), the bills are a product of the right-wing American Legislative Exchange Council. Their bills are strikingly similar to many anti-BDS bills introduced or passed in more than half the states in the U.S. at the behest of ALEC. It makes sense, then, that politicians such as Vukmir and Kooyenga, deeply allied with ALEC and the billionaire Koch brothers, support this undemocratic legislation.

It is confusing that some progressive Democrats also support this bill. They do this because of a mistaken equivalence between BDS and anti-Semitism, equating nonviolent boycotts with disloyalty.

Support for BDS is not anti-Semitic. The Milwaukee and Madison chapters of Jewish Voice for Peace represent the growing population of American Jews who respond to the call from Palestinian civil society for a nonviolent boycott in support of the prospect of peace in the region.

These bills seek to undermine the power of people to work together nonviolently, in the interest of a just cause. No individual or company should be punished for exercising their conscience and supporting a nonviolent movement for peace and equality. As Jews and allies who say “not in our name,” we ask our fellow Wisconsinites, and state legislators, to reject AB 553/SB 450.

Sandy Pasch is a former state legislator. This commentary was co-authored with Daniel Maguire, a theology professor at Marquette University; Rachel Ida Buff, a history professor at the University of Wisconsin-Milwaukee; Jodi Melamed, an associate English professor at Marquette; and Tsela Barr, administrative assistant and graphic designer at Edgewood College in Madison.

Kansas Doesn’t Even Try to Defend Its Israel Anti-Boycott Law

Brian Hauss, Staff Attorney, ACLU Speech, Privacy, and Technology Project, November 30, 2017

 

Graffiti on the Israeli separation wall dividing the East Jerusalem neighborhood of Abu Dis reads, Ryan Rodrick Beiler/Shutterstock

Kansas officials are scheduled to appear in court tomorrow to defend a state law designed to suppress boycotts of Israel. There’s just one problem: The state quite literally has no defense for the law’s First Amendment violations.

The ACLU filed a lawsuit in October against a law requiring anyone contracting with the state to sign a statement affirming that they don’t boycott Israel or its settlements. We represent Esther Koontz, a math teacher who was hired by the state to train other teachers. Together with members of her Mennonite church, Esther boycotts Israel to protest its treatment of Palestinians. After she explained that she could not in good conscience sign the statement, the state refused to let her participate in the training program.

The law violates the First Amendment, which protects the right to participate in political boycotts. That right was affirmed by the Supreme Court in 1982, when it ruled that an NAACP boycott of white-owned businesses in Mississippi during the civil rights movement was a protected form of free expression and free association. But despite long-held consensus around the right to boycott, we were still pretty surprised when Kansas didn’t even try to argue the law is constitutional.

We asked for a preliminary injunction, which would immediately halt enforcement of the law and allow Esther to do the job she was hired for. In its response brief, Kansas doesn’t mention the First Amendment even once, even though the entire case turns on the myriad ways the law violates First Amendment rights. Instead, the government relies on a couple half-baked procedural arguments in an attempt to convince the court to leave the law in place for now.

First, Kansas argues that a preliminary injunction isn’t necessary because Esther could always receive monetary damages at the end of the lawsuit, should she win. But courts have long recognized that the government can’t use money damages to buy off the loss of First Amendment rights.

The government’s other argument is that the Kansas secretary of administration would have given Esther a waiver, had she sought one, exempting her from the requirement to refrain from boycotting Israel. But the government can’t neutralize legal challenges to blatantly unconstitutional laws by making one-off exceptions for the people who happen to file lawsuits. Even if Esther could have gotten a waiver, that wouldn’t help other Kansans affected by the law.

The Kansas law isn’t an aberration. Some two dozen states have laws or executive orders on the books designed to chill boycotts of Israel. (Two such executive orders, in Maryland and Wisconsin, were issued just this past October.) A similar law in Texas came under scrutiny when a municipality interpreted it to condition hurricane relief on a commitment not to boycott Israel. A separate federal bill threatens heavy sanctions against people who participate in certain international boycott campaigns against the country.

These laws share a common goal of silencing one side of an important political debate about a decades-old conflict. They simply can’t be squared with the right to free political expression. That must be why Kansas didn’t even bother trying.

Federal Court Strikes Down Kansas Anti-BDS Law


Israeli security forces and Palestinian protesters confront each other in Jerusalem’s Old City on Dec. 15, 2017.

Glenn Greenwald, The Intercept, January 31 2018

A federal judge on Tuesday ruled that a Kansas law designed to punish people who boycott Israel is an unconstitutional denial of free speech. The ruling is a significant victory for free speech rights because the global campaign to criminalize, or otherwise legally outlaw, the Boycott, Divestment, and Sanctions movement has been spreading rapidly in numerous political and academic centers in the U.S. This judicial decision definitively declares those efforts — when they manifest in the U.S. — to be a direct infringement of basic First Amendment rights guaranteed by the U.S. Constitution.

The enjoined law, enacted last year by the Kansas legislature, requires all state contractors — as a prerequisite to receiving any paid work from the state — “to certify that they are not engaged in a boycott of Israel.” The month before the law was implemented, Esther Koontz, a Mennonite who works as a curriculum teacher for the Kansas public school system, decided that she would boycott goods made in Israel, motivated in part by a film she had seen detailing the abuse of Palestinians by the occupying Israeli government, and in part by a resolution enacted by the national Mennonite Church. The resolution acknowledged “the cry for justice of Palestinians, especially those living under oppressive military occupation for fifty years”; vowed to “oppose military occupation and seek a just peace in Israel and Palestine”; and urged “individuals and congregations to avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in [Israeli] settlements.”

A month after this law became effective, Koontz, having just completed a training program to teach new courses, was offered a position at a new Kansas school. But, as the court recounts, “the program director asked Ms. Koontz to sign a certification confirming that she was not participating in a boycott of Israel, as the Kansas Law requires.” Koontz ultimately replied that she was unable and unwilling to sign such an oath because she is, in fact, participating in a boycott of Israel. As a result, she was told that no contract could be signed with her.

In response to being denied this job due to her political views, Koontz retained the American Civil Liberties Union, which sued the commissioner of education, asking a federal court to enjoin enforcement of the law on the grounds that denying Koontz a job due to her boycotting of Israel violates her First Amendment rights. The court on Tuesday agreed and preliminarily enjoined enforcement of the law.

The ruling is significant for two independent reasons. The first is the definitive and emphatic nature of the ruling. The court dispensed with an oft-repeated but mythical belief about free speech rights: namely, that they only bar the government from imprisoning or otherwise actively punishing someone for their views, but do not bar them from withholding optional benefits (such as an employment contract) as retaliation for those views. Very little effort is required to see why such a proposition is wrong: Just imagine a law which provided that only people who believe in liberalism (or conservatism) will be eligible for unemployment benefits or college loans. Few would have trouble understanding the direct assault on free speech guarantees posed by such a law; the same is true of a law that denies any other benefits (including employment contracts) based on the state’s disapproval of one’s political views, as the court explained in its ruling (emphasis added):

Even more important is the court’s categorical decree that participating in boycotts is absolutely protected by the First Amendment’s guarantee of free speech and petition rights. Citing the 1982 U.S. Supreme Court case that invoked free speech rights to protect members of the NAACP from punishment by the state of Mississippi for boycotting white-owned stores, the court in the Kansas case pointedly ruled that “the First Amendment protects the right to participate in a boycott.” In doing so, it explained that the core purpose of the Kansas law is to punish those who are critical of Israeli occupation and are working to end it: “The Kansas Law’s legislative history reveals that its goal is to undermine the message of those participating in a boycott of Israel. This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel.”

Indeed, it’s hard to imagine a law that more directly violates the First Amendment’s guarantee of free speech than one that seeks to deny people benefits for which everyone else is eligible due solely to the state’s disapproval of their political views and activism. Since that’s exactly what this Kansas law did, the court concluded that it was unconstitutional.

Beyond the court’s emphatic rationale, the decision is significant because repressive measures like this have spread, and continue to spread, far beyond Kansas. Indeed, as we have repeatedly reported and documented, the single greatest threat to free speech in the West — and in the U.S. — is the coordinated, growing campaign to outlaw and punish those who advocate for or participate in activism to end the Israeli occupation.

Numerous other U.S. states have implemented similar measures as the one in Kansas — including New York, where, as we previously reported, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies “to terminate any and all business with companies or organizations that support a boycott of Israel” and “requiring that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott.” As the New York Civil Liberties Union told The Intercept at the time about Cuomo’s order: “Whenever the government creates a blacklist based on political views it raises serious First Amendment concerns and this is no exception.”

Last year, a measure sponsored by Benjamin Cardin, a Democratic senator from Maryland and an AIPAC loyalist, joined by 43 other senators, went even further, purporting to impose prison sentences and large fines for anyone working with international organizations to boycott Israel. Only after the ACLU vehemently denounced the bill as a grave First Amendment attack that “would punish individuals for no reason other than their political beliefs” did several senators say they were re-considering their support.

Indeed, it’s hard to overstate how pervasive and mainstream these attempts to legally suppress criticisms of Israel have become, including in the U.S. As the legal advocacy organization Palestine Legal told The Intercept yesterday, “Since 2014, over 100 anti-boycott measures (similar to the one blocked in Kansas) have been introduced in the U.S., at least 24 of them enacted. Palestine Legal responded to 308 suppression incidents in 2017 and nearly 1,000 in the last four years.” The report issued by the group this week details just some of those efforts:

  • Hurricane Harvey victims were required to pledge not to boycott Israel to receive relief aid;
  • An NYC bookstore hid a children’s book about Palestine after calls for censorship;
  • A Palestinian American professor at San Francisco State was sued for researching and teaching about Palestine;
  • A Black student leader at the University of Wisconsin was condemned for speaking out against the connections between white supremacy and Zionism by Trump’s nominee to head the U.S. Department of Education’s Office for Civil Rights.

So widespread are attempts to punish and repress speech and activism aimed at ending the Israeli occupation that the Center for Constitutional Rights has dubbed this movement “the Palestine Exception” to free speech rights in the U.S.

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