Federal Court Rules In Favor Of Journalist Contesting Georgia’s Anti-BDS Law

We have been discussing the state laws requiring contractors and employees to swear that they do not support the Boycott, Divestment, Sanctions (“BDS”) movement against Israel. I have long maintained that the law is unconstitutional as a limitation of free speech and associational rights. This week, a court in Georgia became the latest to declare such laws unconstitutional. The case was brought by journalist Abby Martin who was denied a contract as a keynote speaker at Georgia Southern University due to her support of the BDS movement.  The opposition to these laws is not driven by the merits of the BDS movement or its opposition. Rather, the issue is the curtailment of political speech, including compelling official speech or viewpoints, as a condition for state employment.

In July 2019, Georgia Southern University (“GSU”) invited Martin to speak at the 2020 International Critical Media Literary Conference. Martin accepted the contract which called for the payment of a $1,000 honorarium as well as costs of travel and lodging. In fulfillment of its obligations under state law, GSU officials (and defendants in the lawsuit) sent her a contract with a clause stating “You certify that you are not currently engaged in, and agree for the duration of this agreement not to engage in, a boycott of Israel, as defined in O.C.G.A. Section 50-5-85.”

The clause references a state statutory mandate:

The state shall not enter into a contract with an individual or company if the contract is related to construction or the provision of services, supplies, or information technology unless the contract includes a written certification that such individual or company is not currently engaged in, and agrees for the duration of the contract not to engage in, a boycott of Israel. O.C.GA. § 50-5-85(b).

Under the law, the term “Boycott of Israel” means

engaging in refusals to deal with, terminating business activities with, or other actions that are intended to limit commercial relations with Israel or individuals or companies doing business in Israel or in Israeli controlled territories, when such actions are taken:  (A) In compliance or adherence to calls for a boycott of Israel other than those boycotts to which 50 U.S.C. App. Section 2407(c), as it existed on January 1, 2016, applies; or (B) In a manner that discriminates on the basis of nationality, national origin, religion, or other unreasonable basis that is not founded on a valid business reason. O.C.GA. § 50-5-85(a).

Martin responded truthfully on same day, stating: “I’m sure you know, a lot of my work advocates the boycott of Israel, and my new film features that call to action. I cannot sign any form promising not to boycott Israel.” She was then denied the contract.

In NAACP v. Claiborne Hardware Co. (1982), the Supreme Court addressed a boycott of white-owned businesses in Mississippi. The Supreme Court held that a state’s right to regulate economic activity “could not justify a complete prohibition against a nonviolent, politically motivated boycott.”

While he found in favor of dismissal for some of the defendants under qualified immunity precedent, U.S. District Court Judge Mark Cohen ruled for Martin on the core constitutional challenge. He found that:

Because O.C.G.A. § 50-5-85 discriminates based on the motive for engaging in a boycott against Israel, the certification requirement forces parties contracting with the state of Georgia to publicly assign a motive and speech element to what Defendants deem merely economic conduct. The certification that one is not engaged in a boycott of Israel is no different that requiring a person to espouse certain political beliefs or to engage in certain political associations. The Supreme Court has found similar requirements to be unconstitutional on their face.

Judge Cohen also found the language to be unconstitutionally vague under the Fourteenth Amendment:

Here, O.C.G.A. § 50-5-85’s inclusion of “other actions that are intended to limit commercial relations with Israel” makes the statute impermissibly vague. O.C.G.A. § 50-5-85. This phrase in particular may leave a reasonable individual to speculate as to what conduct is prohibited…Despite Defendants’ contentions to the contrary, the language in O.C.G.A. § 50-5- 85 makes it questionable whether Martin even would be permitted to speak publicly in support ofBDS Boycotts while she was engaged in any contract with the state of Georgia. Public speech which advocates for a boycott of Israel and calls on others to engage in BDS Boycotts could reasonably be interpreted as “actions that are intended to limit commercial relations with Israel.” O.C.G.A. 50-5-85-85(a).

Various states have passed these restrictive laws. Indeed, many countries have curtailed BDS protests. I was critical of France’s prosecution of BDS protesters.  Countries, including the United States, have barred entry to BDS supporters. In addition, we have faced these controversies on campuses, including on the George Washington University campus.

Recently, the U.S. Court of Appeals for the Eighth Circuit on Feb. 12 ruled that an Arkansas anti-BDS law violates the First Amendment. That case also involved a media plaintiff. The Arkansas Times allowed that the University of Arkansas Pulaski Technical College required the paper to sign a pledge agreeing not to boycott Israel as part of an advertising contract.

In a 2-1 panel decision, the court also found that this was overly broad. In so ruling, the appellate court  reversed a January 2019 district court decision. The Court found that the state law could not be justified as a purely commercial or business regulation and that the law clearly curtailed expressive conduct or activities:

Considering the Act as a whole, we conclude that the term “other actions” in the definition of “boycott Israel” and “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act requires government contractors, as a condition of contracting with Arkansas, not to engage in economic refusals to deal with Israel and to limit their support and promotion of boycotts of Israel. As such, the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities recognized by the Supreme Court in Claiborne.

The Eighth Circuit relied not just on the text but the legislative history to show a sweeping bar on those who support the movement:

That the term “other actions” captures constitutionally protected activity is further supported by the Act’s codified legislative findings…Those findings state that Arkansas seeks to implement the policy of “examining a company’s promotion or compliance with unsanctioned boycotts, divestment from, or sanctions against Israel as part of its consideration in awarding grants and contracts.” Ark. Code Ann. § 25-1-501(6) (emphasis added). The findings further state that Arkansas “supports the divestment of state assets from companies that support or promote actions to boycott, divest from, or sanction Israel.” Id. (emphasis added). Thus, Arkansas seeks not only to avoid contracting with companies that refuse to do business with Israel. It also seeks to avoid contracting with anyone who supports or promotes such activity.

Courts in Arizona, Kansas and Texas have also ruled against these laws.

There are good-faith objections to the BDS movement. We can have that debate on our campuses and other forums without seeking to compel or limit speech. Barring employment or contracts on the basis of such views is simply another way of silencing opposing viewpoints. It is true that the BDS movement can itself be accused of barring speakers or contracts. However, pro-Israel activists and academics are protected under the very same constitutional principles.  Each side is afforded ample freedom in this country to engage each other and seek to convince the public on the merits of the controversy.

Judge Cohen is not supporting the BDS movement in supporting Martin’s constitutional rights.  He is drawing a bright line around the First Amendment to protect the speech of everyone. We can then continue to have a national debate (and hopefully a dialogue) on these underlying issues.

105 thoughts on “Federal Court Rules In Favor Of Journalist Contesting Georgia’s Anti-BDS Law”

  1. Expect a similar situation in Portland,OR soon regarding contractor display of imagery. One of the more unhinged councilmen, Joann Hardesty, saw a city construction contractor’s truck with a thin blue line sticker. She demanded they remove it. They suggested she shove it. AND now she plans to address this in “future contracts”. https://www.koin.com/local/multnomah-county/hardesty-slams-pbot-contractor-with-thin-blue-line-flag/

  2. I responded in my way to your generalities and libel.

    Tell us Anonymous the Stupid do you get a signed consent before you touch a woman or have sex with her? That is the question on the table. Did you ever kiss one who didn’t expect it and wasn’t asking for it? You are an idiot. State your claim with proof . Skip your generalities, links, and your hiding behind the anonymous label.

    You are dishonest and a coward. You have made a fool of yourself again.

    Below was the response you linked to. You can take it and criticize it sentence by sentence, but you won’t. You don’t have the ability. You will have to make direct statements and stand up to be criticized.

    Like the claim of Trump obstruction in today’s column by Turley, Anonymous the Stupid, the left constructs all sorts of lies about Trump. That is what we expect from you. The left makes unfounded accusations that have mostly been disproven, and the rest have no proof. One of the accusations has led to the accuser having being sued and losing. She now has to pay Trump rather than the other way around. Her attorney now sits in jail. That is where you and people like you belong.

    “Trump has admitted to sexually assaulting women (grabbing women by their pussies without consent, kissing women without consent)”

    I assume you get a signed consent agreement before engaging in any touching or feeling of the same or opposite sex. Hopefully, though questionable in your case, you do not engage in similar activities with children.

    You make accusations that you cannot prove, yet you have seen proof of the opposite. That is what demonstrates sickness.

  3. “You seem to be referring to Stormy Daniels.”

    Yes, anonymous. You are the one making non-specific claims. In this case, you posted the same response in two different postings. I picked one name out to prove you wrong. I don’t need more because you hide what you say in generalizations. That permits me to choose whatever I wish and show how wrong you are.

    If you become more specific with the name and proof, I’ll become more specific as well. You won’t bother doing so because you cannot debate outside of generalities or quoting another’s work.

    You try to post below the radar so you can feel you have the ability to refute. You do not have enough knowledge to do so. Your second step is to post a LINK, again without the specifics necessary. You think that provides a counter, but it only provides the reader with amusement at your silliness.

    Finally, you post under anonymous so you can blame somebody else for your frequent mistakes, but you can’t. You are anonymous. You hide your errors under the table of a trickster. Once again, you have been exposed for making a fool of yourself.

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