The ‘Palestine exemption’ to free speech

The BDS (Boycott, Divestment, Sanctions) Movement has as its goal to “end international support for Israel’s oppression of Palestinians and pressure Israel to comply with international law.” An overview of its mission states:

Israel is occupying and colonising Palestinian land, discriminating against Palestinian citizens of Israel and denying Palestinian refugees the right to return to their homes. Inspired by the South African anti-apartheid movement, the BDS call urges action to pressure Israel to comply with international law.

BDS is now a vibrant global movement made up of unions, academic associations, churches and grassroots movements across the world. Eleven years since its launch, BDS is having a major impact and is effectively challenging international support for Israeli apartheid and settler-colonialism.

As the movement gains steam, the government of Israel and its lobbying arms in the US and other parts of the world have stepped up their attacks to suppress its growth. For example, after New Zealand singer Lorde cancelled a tour of Israel because of an open letter she received from two activists (one Jewish and the other Palestinian) informing her about what was going on there, an Israeli advocacy group launched a lawsuit against the two activists based on a 2011 Israeli law .

One extraordinary form that this has taken in the US is to get state legislatures to pass laws that punish anyone who happens to support the BDS movement and similar legislation is being proposed at the federal level. The First Amendment to the US constitution is supposed to protect, among other things, the right of free speech, assembly, and to petition the government, and this attempt to punish BDS activism has been called the ‘Palestinian exemption’ to the First Amendment because it singles out one particular form of speech and petitioning for suppression.

Kansas, a very reactionary state in so many ways, passed such a law and a woman who was due to be given a contract to train teachers was asked to sign a statement saying that she disavowed the BDS movement. She refused to sign the statement and, aided by the ACLU, sued the state and two days ago a US District Court judge issued an injunction against the implementation of the law, saying that it was a violation of her free speech rights.

Glenn Greenwald wrote about the case.

The enjoined law, enacted last year by the Kansas legislature, requires all state contractors — as a prerequisite to receiving any paid work from the state — “to certify that they are not engaged in a boycott of Israel.” The month before the law was implemented, Esther Koontz, a Mennonite who works as a curriculum teacher for the Kansas public school system, decided that she would boycott goods made in Israel, motivated in part by a film she had seen detailing the abuse of Palestinians by the occupying Israeli government, and in part by a resolution enacted by the national Mennonite Church.

A month after this law became effective, Koontz, having just completed a training program to teach new courses, was offered a position at a new Kansas school. But, as the court recounts, “the program director asked Ms. Koontz to sign a certification confirming that she was not participating in a boycott of Israel, as the Kansas Law requires.” Koontz ultimately replied that she was unable and unwilling to sign such an oath because she is, in fact, participating in a boycott of Israel. As a result, she was told that no contract could be signed with her.

The ruling is significant for two independent reasons. The first is the definitive and emphatic nature of the ruling. The court dispensed with an oft-repeated but mythical belief about free speech rights: namely, that they only bar the government from imprisoning or otherwise actively punishing someone for their views, but do not bar them from withholding optional benefits (such as an employment contract) as retaliation for those views.

Even more important is the court’s categorical decree that participating in boycotts is absolutely protected by the First Amendment’s guarantee of free speech and petition rights. Citing the 1982 U.S. Supreme Court casethat invoked free speech rights to protect members of the NAACP from punishment by the state of Mississippi for boycotting white-owned stores, the court in the Kansas case pointedly ruled that “the First Amendment protects the right to participate in a boycott.” In doing so, it explained that the core purpose of the Kansas law is to punish those who are critical of Israeli occupation and are working to end it: “The Kansas Law’s legislative history reveals that its goal is to undermine the message of those participating in a boycott of Israel. This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel.”

Indeed, it’s hard to imagine a law that more directly violates the First Amendment’s guarantee of free speech than one that seeks to deny people benefits for which everyone else is eligible due solely to the state’s disapproval of their political views and activism. Since that’s exactly what this Kansas law did, the court concluded that it was unconstitutional.

The judgment is categorical and the language strong and you can read the opinion here.

Jesse Rubin has more on the case and the reaction.

In a statement, Micah Kubic, director of the ACLU of Kansas, called the judge’s ruling a “notable victory for the First Amendment.”

“The government has no right telling people what they can and can’t support, and this preliminary injunction will protect other Kansans from enduring the First Amendment violation that Ms. Koontz has endured,” Kubic said.

Since such measures began to appear, legal and civil rights experts have consistently maintained that the right to boycott is distinctly protected under the First Amendment.

“There’s no question that the First Amendment protects the right to participate in a political boycott,” Vera Eidelman, Brennan fellow with the ACLU’s Speech, Privacy, and Technology Project told Mondoweiss. Eidelman noted that the Supreme Court’s ruling in the 1982 landmark civil rights suit NAACP v Claiborne established this precedent unambiguously.

“This Kansas decision is very correctly in keeping with that case,” Eidelman said, adding that Judge Crabtree’s brief, “does a great job of explaining why our client, Esther Koontz’s boycott is protected in the same way that the boycott in Claiborne was protected.”

As the lawsuit was the first to challenge anti-BDS legislation — though the ACLU has since begun representing a plaintiff in Arizona as well — the ruling from a federal judge suggests the many other such current or proposed measures will not withstand legal scrutiny.

This is an important decision.


  1. jrkrideau says

    Occasionally one has to respect US judges.

    Just as one had to respect the lawyers in the US Military Justice Corp (?) who did their, incredibly brave, best for Omar Khadr.

  2. Trickster Goddess says

    I have trouble wrapping my mind around the theory of making boycotting illegal. Does that mean that when I go to the store I am legally required to buy an Isreali brand of humus instead of a local brand?

  3. Pierce R. Butler says

    Trickster Goddess @ # 2: Does that mean that when I go to the store I am legally required to buy an Isreali brand of humus instead of a local brand?

    I imagine this going to the Supreme Court and “Justice” Gorsuch ruling it requires the local brand to go out of business.

Leave a Reply

Your email address will not be published. Required fields are marked *