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.