Imagine being told that you’ll lose your job with a state government unless you pledge not to boycott Saudi Arabia in response to its policies—such as the killing of journalist Jamal Khashoggi. Or that you will not be hired by that state unless you promise for the term of your contact that you won’t advocate a boycott of goods made in, say, Iran because you oppose their policies, such as their support of the terrorist group Hezbollah in Lebanon?
What would be your reaction? I’m guessing, like most, you would say this law is not just outrageous but unconstitutional and un-American. And you would be 100 percent correct.
But when Texas and other states have passed those exact laws that result in people being fired from their jobs or not hired simply because they want to protest Israeli policies under Benjamin Netanyahu, we barely hear a peep. There should be no exception to our First Amendment rights because certain politicians disagree with our political views.
Yet look what we seeing playing out in various states. In Texas, for example, Bahia Amawi is a speech pathologist who has worked for the past nine years as a full-time contractor in a Texas school district. Amawi, who has a master’s degree in the field, helps children aged 3 to 11 who have speech challenges.
But that all changed this year. You see, in 2017, the Republican-controlled Texas legislature passed a bill signed into law by Texas’s GOP governor Greg Abbott that required Amawi and anyone seeking to do business with Texas to certify that he or she “does not currently boycott Israel” and “will not boycott Israel during the term of the contract.”
Under this law, “boycott” is defined as refusing to do business with not just an entity in Israel but also in “Israeli-controlled territory.” That means you can’t even boycott goods made in Israel’s illegal settlements in the West Bank, which most view as an obstacle to peace.
This past August, Amawi was told she had to sign this certification or her contract to teach would not be renewed. This posed a dilemma for Amawi, who is a U.S. citizen of Palestinian heritage, but is not the leader of a political movement.
As she told The Intercept, she ultimately decided not to sign the certification for two reasons. First, she felt she would “be betraying Palestinians suffering under an occupation that I believe is unjust and thus, become complicit in their repression.” And secondly, she would be “betraying my fellow Americans by enabling violations of our constitutional rights to free speech and to protest peacefully.”
Consequently, she lost her job. But on Dec. 16 she filed a federal lawsuit with the help of the Council on American Islamic Relations and a local Texas lawyer to declare the Texas law unconstitutional and to get her old job, that she loved, back. In response to the lawsuit, Texas Governor Greg Abbott tweeted, “Texas stands with Israel. Period.”
Regardless of where Abbott stands, it’s very likely that Amawi will win, given that the Constitution stands with Americans and our right to freedom of expression. In fact, two recent challenges to laws like one in Texas mounted by the ACLU have thankfully been successful. The first case was brought by Esther Koontz, a curriculum coach at a public school in Wichita, Kansas. Koontz, who is a member of the Mennonite Church, refused to buy goods made in the West Bank by Israeli and other international companies “in order to protest the Israeli government’s treatment of Palestinians and to pressure the country to change its policies.”
When Koontz refused to certify that in essence she would waive her First Amendment rights when it came to criticizing Netanyahu’s polices, she was not re-hired. In January, however, a federal judge ruled in her favor, stating bluntly that the Supreme Court “has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”
The same result was reached in September in a similar case involving attorney Mikkel Jordahl, who provides legal services to state inmates by way of a contract with Arizona. He too refused to sign the no-boycott oath. The ACLU was once again successful as the federal judge entered an injunction against the Arizona law, explaining, “A restriction of one’s ability to participate in collective calls to oppose Israel unquestionably burdens the protected expression of companies wishing to engage in such a boycott.”
This is truly one of those day-one legal principles you learn in law school. Our Supreme Court has held that engaging in boycotts is a protected form of freedom of expression in a case that addressed an NAACP-led boycott designed to advocate racial justice. Yet 26 states, often supported by Democrats, have enacted laws or directives that require a certification that a company or person will not boycott or even advocate a boycott of Israeli goods and services in order to do business with that state.
The goal of these laws appears to be to silence the BDS movement (Boycott, Divestment, Sanctions), which utilizes non-violent, peaceful means to protest the policies of the Netanyahu government in relation to the Palestinians, including the building of more settlements and human rights abuses. What’s surprising about this is that for years, I’ve heard, “Where is the Palestinian Martin Luther King?” Well, here are Palestinians and their allies engaging in nonviolent boycotts inspired by people like MLK, but some want to silence that. Apparently, they want supporters of Palestinian human rights and self-determination to be silent. That’s simply not going to happen.
I’m not personally involved in the BDS movement. And you may passionately oppose that movement—some even claim it’s inherently anti-Semitic. If you do feel that way, then you have the absolute right to have your voice heard to make your case. The answer to speech you disagree with is more speech, not state action designed to chill a robust debate on political issues.
Clearly Americans have the right to peacefully engage in protests, including boycotts, of any government—from our own to Saudi Arabia to Israel. But these laws designed to use state action to suppress our freedom of expression are not only unconstitutional, they are un-American.