A District Court judge in Kansas has handed down a major free speech victory this week in striking down the state law requiring all state contractors “to certify that they are not engaged in a boycott of Israel.” We have previously discussed these laws and my view that they impinge upon the first amendment. The laws include making victims of natural disasters attest that they do not support a boycott of Israel as well as similar bans on student groups. Now the Kansas law has been struck down as a denial of free speech by District Court Judge Daniel Crabtree. It is the Koontz case that we previously discussed.
Not only have pro-Israel advocates passed these laws on the state level, but they are pushing for federal legislation. Sen. Benjamin Cardin (D., Md) moved legislation with 43 other senators to impose prison sentences and large fines for anyone working with international organizations to boycott Israel.
The court ruled that such laws punish people for their political views, association, and speech. In this case, Kansas requires all contractors “to certify that they are not engaged in a boycott of Israel.” One of those told to certify was Esther Koontz. The long-time math teacher at Horace Mann Dual Language Magnet School in Wichita, Kansas was barred from renewing her contract as teacher because she supports the boycott of Israel over the occupation of Palestinian territories. This is not simply reflective of her political views but a religious based obligation as a member of the Mennonite Church USA. The church in July voted to divest itself from American companies that profit off of Israel’s occupation of the Palestinian territories.
The court noted that a state could seek to avoid the anti-competitive impacts of boycotts but noted that this law was tailored solely for the benefit of Israel and did not achieve that purpose as written:
But even if one assumed that Kansas had passed the law to achieve constitutionallypermissible goals that would not change the outcome here. It is still unconstitutional because it is not narrowly tailored to achieve those permissive goals. If Kansashad passed its law to regulate boycotts intended to suppress economic competition coming from Israel—a goal that Claiborne permits—the Kansas Law is overinclusive. It is overinclusive because it also bans political boycotts, which is impermissible. See Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”). Likewise, if the Kansas Law’s goal is to promote trade relations with Israel—also a permissible goal—the Kansas Law is underinclusive because it only regulates boycotts but does not regulate other conduct that affects trade.
The decision is powerful defense of free speech and association. The court concluded:
While the Kansas Law may have been passed by the legislature withflying colors, that showing merely would demonstrate that one state legislature had enacted a statute. Such a showing would not place the Kansas Law on the same level as an amendment to our Constitution—the very first amendment adopted by our founders and one ratified by three fourths of our states. See U.S. Const. art. V. A desire to prevent discrimination against Israeli businesses is an insufficient public interest to overcome the public’s interest in protecting a constitutional right. The court finds that an injunction will serve the public interest.