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.

The federal court ruling from yesterday is a ringing endorsement of the vital constitutional principle that people cannot be punished by the U.S. government or state governments due to disapproval of their political activism and viewpoints — even if the goal is to protect the Israeli government and its decades long illegal occupation from criticism and activism. The direct result of this ruling is that the Kansas state government is barred from continuing to force teachers and other state residents to take an oath to refrain from boycotting Israel upon pain of being denied contracts, but the broader and more enduring effect may be to emphasize just how authoritarian, repressive, and contrary to core civil liberties the global attempt to abuse the power of law to criminalize or suppress this free expression in the name of protecting Israeli occupation is.

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Open Letter to Women’s March L.A. from Women for Palestine

Open Letter to Women’s March L.A.:
Women for Palestine Calls for Genuine Intersectionality

Women 4 Palestine L.A., January 17, 2018

We embrace and applaud the intersectional analysis that marks today’s social movements, and decry the absence of this perspective in outreach for the Women’s March Los Angeles.

In a shocking move, you announced that a “Special Guest” speaker at WMLA 2018 is Scarlett Johansson, who is unabashedly a supporter of Israeli violations of Palestinian human rights. She served as a spokesperson, and indeed, was the face of the advertising campaign of SodaStream, whose factory was in a settlement built illegally on land stolen from Palestinians in the occupied West Bank. As a result, she was forced to step down from her role as an ambassador for the humanitarian group Oxfam after working with the charity for eight years.

Johansson’s unapologetic support for Israel’s abuses of Palestinians confirms that she fully deserves the praise Israeli Prime Minister Benjamin Netanyahu heaped on her in his speech to the Israel lobby group AIPAC in Washington, several years ago. Netanyahu said Johansson should be “applauded” for opposing the Boycott, Divestment, and Sanctions (BDS) campaign for Palestinian rights. Regardless of her claims to not be “political,” Johansson is now seen by Palestinians and their supporters as a defender of apartheid Israel.

While there are a host of OTHER examples that can be cited, here we want to focus on the impact on those of us who actively support the indigenous rights of the Palestinian people, especially in light of the recent international attention on women and child political prisoners, including 16-year-old Ahed Tamimi, the young Palestinian Rosa Parks.

Once again, grassroot feminists who promote Palestinian human rights are concerned that a hostile environment is promoted by the organizers of WMLA — whether inadvertently, or not — by the choice of featured speakers, major donors, and major partners.

The organizers of the Women’s March LA are well aware of the issues the “Women 4 Palestine” contingent faced at last year’s “Women’s March LA.” We were verbally abused with racist remarks, and bullied, to the point that some of us are reticent to return out of concern for our personal safety. Our concerns were brushed off by your organizers, in fact one of you accused one of our members as being anti-semitic when she posted an announcement for our Women’s Rally to Free Ahed and All Palestinian Child Prisoners.

We also object to tone set as a result of the key role played by The National Council of Jewish Women LA, especially as a major organizer and donor to the local Women’s March. When Nancy Kaufman, CEO of the National Council of Jewish Women, said that “we didn’t want it to become an Israel-bashing fest…We got assurances that the march is not anti-Trump and not anti-Israel,” it was clear that they were determined to silence the voices of critics of Israel and supporters of Palestinian rights.

“We believe that Women’s Rights are Human Rights and Human Rights are Women’s Rights.” – Mission Women’s March Mission. Apparently that does not include Palestinian Human Rights.

Renowned Black feminist poet, June Jordan’s poetry embodies the intersectionality of Black and Palestine liberation. “I was born a Black woman / and now / I am become a Palestinian / against the relentless laughter of evil / there is less and less living room / and where are my loved ones / It is time to make our way home.”

Last year’s Women’s March, DTLA looked like it was covered with a fresh coat of snow studded with pink caps. In no way did it reflect the wonderful diversity of Los Angeles County. Unfortunately, we never heard that was a concern for WMLA’s leaders, either before the march when several of us raised these issues, OR afterwards. What a shame and missed opportunity.

It’s well past time to be genuinely intersectional, inclusive, transparent, and welcoming of marginalized people, including the Palestinian community, an approach exemplified by the International Women’s Strike, which mobilized thousands of women in March of 2017 for gender, economic and social justice, while also centering the “Decolonization of Palestine,” anti-imperialism, and an end to gendered state violence. IWS organizers are once again mobilizing for March 2018 International Women’s Day marches and strikes.

In that spirit we invite you to join us, when many of us will participate in the International Women’s Day March & Rally 2018-Organized by AF3IRM, in Downtown Los Angeles on Saturday, March 3rd, 2018, noon to 3pm. This march is convened and led by transnational/women of color, but all people are welcome.

Women for Palestine L.A.

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Israel Publishes BDS Blacklist:
20 Groups Will Be Denied Entry

Israel’s Strategic Affairs Ministry had for months refused to divulge the list

    Blacklisted American organizations:
    ■ American Friends Service Committee
    ■ American Muslims for Palestine
    ■ CodePINK
    ■ Jewish Voice for Peace
    ■ National Students for Justice in Palestine
    ■ US Campaign for Palestinian Rights

US Campaign for Palestinian Rights (USCPR) Executive Director Yousef Munayyer said, “We wear this designation as a badge of honor. When Israel, which aims to portray itself to the world as liberal and democratic, blacklists activists dedicated to nonviolent organizing and dissent, it only further exposes itself as a fraud.

Join CodePINK in calling on Senators Chuck Schumer and Ben Cardin to denounce this outrageous ban and tell Israel to lift it immediately. These senators should stand up for the right of US citizens to criticize repressive Israeli policies, especially since Israel gets over $3 billion of our tax dollars every year.

A pro-Palestinian BDS protest in Paris, France August 13, 2015A pro-Palestinian BDS protest in Paris, France August 13, 2015 (AFP)

Noa Landau, Haaretz, Jan 07, 2018

Israel published on Sunday the full list of organizations whose activists will be barred from entering the country. The so-called BDS blacklist was released by the Strategic Affairs Ministry.

Members of the 20 organizations on the list will not be allowed to enter the country due to their support for the boycott, divestment and sanctions movement against Israel. The list primarily includes European and American organizations as well as groups from Latin America, a group from South Africa and an international umbrella organization. 

>>Jewish Agency won’t block BDS supporters from immigrating to Israel ■ The BDS blacklist: How Israel will discern who enters and who is barred

The American Friends Service Committee, a Quaker organization honored with the 1947 Nobel Peace Prize for assisting and rescuing victims of the Nazis, is among the list of groups whose activists Israel has announced it will bar from entering the Jewish State. On Saturday it was revealed that the left-wing organization Jewish Voice for Peace was on the list.

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November 21, 2017
In Service of State Violence

“Palestine and the Restrictions on Academic Freedom”

Listen live online here
Tuesday, November 21
11:30 am – 1:00 pm CENTRAL TIME

Dr. Rabab Abdulhadi
The Palestine Center, Washington, DC
The presentation will also be posted on line after the talk.

Dr. Rabab Abdulhadi is Associate Professor of Ethnic Studies/Race and Resistance Studies & the Senior Scholar of the Arab and Muslim Ethnicities and Diasporas Initiative, San Francisco State University.

Dr. Abdulhadi will speak about her own experiences of being the target of long standing and systemic attempts to silence Palestine activism in the United States. Her talk will underscore the consequences of limiting academic freedom on issues of state violence, namely, allowing it to go unchallenged. Finally, Dr. Abdulhadi will address the role of preserving academic freedom as paramount to sustaining vibrant institutions of learning and discuss her own experiences challenging the many attempts to silence dissent that she has encountered, including a harassing court case that was just dismissed.

For more info see: http://www.thejerusalemfund.org/events/upcoming/service-state-violence-palestine-restrictions-academic-freedom

Walker Order and GOP Bills on BDS Serve Big Donor

Wisconsin Democracy Campaign, November 14, 2017

Republican Gov. Scott Walker has prohibited the state from doing business with anyone who participates in a boycott against Israel, a move guaranteed to please a Las Vegas casino billionaire who has contributed more than $900,000 to Walker and the state GOP.

On Oct. 27, Walker issue Executive Order 261, calling the boycott “discriminatory” and saying it “serves to inflame conflict.”

In addition to the governor’s executive order, two legislative proposals, Senate Bill 450 and Assembly Bill 553, would also prohibit state and local governments from adopting rules to boycott doing business with Israel. The measures also prohibit state and local governments from doing business with anyone involved in the so-called Boycott, Divestment, and Sanctions (BDS) movement that has surfaced in recent years on some college campuses.  The movement is designed to pressure Israel to stop oppressing the Palestinian people.

One of the bills’ authors, Republican Sen. Leah Vukmir, of Wauwatosa, penned a column last year that called BDS “economic terrorism” against the Jewish State. Vukmir, who is on the board and a former chair of a bill-mill called the American Legislative Exchange Council (ALEC), is running for the GOP nomination for U.S. Senate to run against incumbent Democratic U.S. Senator Tammy Baldwin in 2018. Vukmir wrote her column for ALEC’s website.

The campaign contributor, Las Vegas Sands owner Sheldon Adelson, has been a generous benefactor for conservative and GOP candidates in federal and state races across the country. Adelson has also been involved in recent years in efforts against BDS. He and his wife, Miriam, directly contributed $270,000 to Walker’s 2012 recall and 2014 reelection campaigns. In addition, Adelson contributed another $650,000 in 2014 to the state Republican Party, which turned around days later and contributed $600,000 to Walker’s campaign.

ALEC, which was created in the 1970s, unites powerful business interests with conservative state legislators around the country. They meet to come up with “model legislation” that state policymakers can tweak and introduce in their home states. The legislation developed by ALEC hits a range of issues, like privatizing government services and programs, environmental deregulation, voter ID, and the Castle Doctrine.

About four dozen legislators from Wisconsin have been involved in ALEC during the past several years, and ALEC-generated legislation has shown up in Wisconsin, especially since 2010 when Republicans took control of the governor’s office and the legislature.

Protect the right to boycott Israel in Wisconsin

Barbara Olson and Tsela Barr, Wisconsin State Journal, November 11, 2017

Barbara OlsonTsela Barr
Gov. Scott Walker just issued an executive order prohibiting current or future state contracts with any “business entity” that engages in the constitutionally protected right to boycott Israel for its human rights violations.

Republicans are pushing two similar bills in the state Legislature that would compel individuals as well as companies to support Israel if they want to do business with local or state government agencies. The provisions against boycotts, divestment and sanctions (often referred to as BDS) are to be written into contracts, and long-standing low-bidder requirements are to be superseded.

Our state politicians are not alone in singling out Israel — including the Palestinian territories it illegally occupies by military force — for this special status. In Congress, the proposed “Israel Anti-Boycott Act” would make it a felony to choose not to engage in commerce with companies doing business in Israel and its illegal settlements. According to the American Civil Liberties Union, violations would be punishable by a civil penalty that could reach $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

Such laws, resolutions and executive orders have been sprouting like mushrooms after the rain. Twenty-four U.S. states now have them on the books. Nationally, Republicans and some Democrats have gotten on board thanks to well-funded efforts by the American Legislative Exchange Council (ALEC), the American-Israel Public Affairs Committee (AIPAC) and the Israeli government of Benjamin Netanyahu.

Bipartisanship may be dead when it comes to things the American people really need, but not when it comes to government overreach on behalf of the foreign state of Israel.

The absurd and dangerous consequences are becoming increasingly clear. Last month, people in a Houston suburb were required to sign an anti-BDS pledge to receive hurricane relief. (Individuals, but not companies, were eventually freed from this requirement after protests.)

And a Kansas math teacher who refused to sign an anti-BDS pledge was de-selected from a position in a state-funded teacher training program. A Mennonite, she follows her church policy to avoid purchasing goods and services from Israeli companies and those doing business with Israeli settlements. (Apparently, religious freedom exempts you from the law to provide women’s reproductive health services, but not from the duty to support Israel.) She is now suing the state of Kansas.

This “Palestine exception” to the First Amendment is of obvious concern to the millions of people who support the global BDS campaign called by Palestinian civil society to get Israel to comply with international law and basic standards of human rights.

But it should alarm anyone who values their freedom to engage in collective economic action to right wrongs and build a better society. How long before others — such as those in the burgeoning movement to divest from fossil fuels — will have their own “exceptions” written into law? Contact your state legislators and ask them to oppose these bills and Gov. Walker’s executive order.

Olson is a member of the Madison-Rafah Sister City Project. Barr is a member of Jewish Voice for Peace-Madison.