During the last few years, more than 20 U.S. states have targeted the BDS movement with legislation. But some groups have argued that anti-BDS legislation violates the Constitution. In a first, a Kansas federal judge recently agreed, issuing a preliminary injunction against an anti-BDS law in that state.

The case in Kansas has highlighted a debate over the constitutionality of anti-BDS legislation, and with the ACLU filing another lawsuit against a similar law in Arizona, a showdown over the future of the laws is underway.

Kansas case

In Kansas, the ACLU represented Esther Koontz, a member of the Mennonite Church USA, which last year passed a resolution to divest from Israel. Koontz, in accordance with calls to boycott Israel from her church, decided not to buy consumer products made by Israeli companies operating beyond the pre-1967 lines. Koontz, a contractor with the Kansas Department of Education’s Math and Science partnership program, said she could not sign a form saying that she does not participate in a boycott of Israel.

The ACLU filed a lawsuit on her behalf, arguing that the Kansas anti-BDS law violated the First Amendment due to the fact that it “compels speech regarding protected political beliefs, associations, and expression; restricts the political expression and association of government contractors; and discriminates against protected expression based on its content and viewpoint.”

U.S. District Judge Daniel Crabtree issued a preliminary injunction blocking the enforcement of the law, writing 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.”

Marc Greendorfer, founder of the Zachor Legal Institute, called the preliminary injunction “very unfortunate.” According to Greendorfer, “the judge decided the constitutional issue solely off of the ACLU’s flawed and erroneous First Amendment analysis, resulting in statement of the First Amendment principles that is simply wrong and in clear conflict with Supreme Court precedent,” he said.

Greendorfer pointed to multiple precedents for the legality of anti-boycott statutes. “State anti-BDS laws only regulate how the states spend taxpayer money,” he said. “They don’t limit the actual speech of citizens, nor do they infringe any right to engage in bona fide political speech.”

Arizona fights back

Last December, the ACLU filed a second federal lawsuit challenging Arizona’s anti-BDS law, passed in 2016, which forbids Arizona governmental agencies from engaging with contractors who participate in the boycott of Israeli goods or services.

Unlike Kansas, Arizona filed a more forceful case concerning the First Amendment issues. The Zachor Legal Institute and several other pro-Israel groups filed an amicus brief with a federal court to uphold Arizona’s HB 2617. Nevada and Texas, which both passed anti-BDS laws last year, also filed amicus briefs supporting the measure in the U.S. District Court for the District of Arizona.

“States have long exercised their right to use their own money to refuse to subsidize discrimination based on nationality,” said Nevada Attorney General Adam Laxalt. “A business in Arizona has asserted a right to reject people because of the country listed on their passport. But we as a state have an equal right to refuse to join hands economically with businesses that behave in this discriminatory way.”

As the BDS cases play out in federal court, Greendorfer is confident that the ACLU will lose in both Kansas and Arizona.

“The preliminary injunction in Kansas is not the end of the case,” he said. “The case is still proceeding in the district court there, so there is an opportunity for the judge to apply the law properly.”

In Arizona, Greendorfer feels that the U.S. district court “will follow Supreme Court precedent and find that the Arizona law complies with relevant constitutional provisions.” JN

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