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Unconstitutional anti-boycott legislation should not become law

By December 21, 2018

Congress is considering legislation that would require anyone contracting with the federal government to sign a promise that they are not supporting, and will not support, a boycott of Israel. The bill, the Israel Anti-Boycott Act, violates the First Amendment and should not be enacted.

The Supreme Court has long recognized that the First Amendment protects an individual’s right to participate in boycotts as a form of protest and as a means of applying political pressure. Applying that principle, courts in Kansas and Arizona have concluded that state anti-boycott laws similar to the IABA are unconstitutional.

Why is FIRE concerned? Recent incidents in Texas, where a similar anti-boycott bill is the subject of multiple lawsuits, illustrate how these laws, if implemented, can lead to censorship in the educational context. (FIRE also believes that institutional boycotts of Israel that prevent students or faculty from interacting with Israeli people or institutions, or with those who do business with them, raise grave First Amendment and academic freedom concerns.)

Consider first the case of Bahia Amawi, a U.S. citizen with a master’s degree in speech pathology. After 9 years of serving the public school district in Austin, Texas as a speech pathologist to elementary school children, Amawi was told she could no longer work with the school district because she refused to sign an agreement that she was not currently participating in a boycott of Israel and would not do so in the future. Amawi recently filed a lawsuit.

The threat to academic freedom is obvious, should an institution of higher education decide to terminate or refuse to renew the contract of a college professor for refusing to sign the pledge. The Supreme Court has acknowledged that forced loyalty oaths or political litmus tests in academia are unconstitutional. Indeed, in Keyishian v. Board of Regents, the Supreme Court invalidated a New York State statute that required all employees of the State University of New York system to certify that they were not members of the Communist party and to notify the SUNY president if they had previously been members.

In fact, the other example from the Lone Star State already comes in the context of higher education, where a federal lawsuit alleges that four contractors were prohibited from work opportunities at the University of Houston, Texas A&M University, and two public school districts for refusing to sign commitments that they are not and would not boycott Israel. The lawsuit alleges that plaintiff George Hale, who reported for the local National Public Radio station owned and operated by Texas A&M, was given the ultimatum of signing a promise not to boycott Israel in order to continue working for the station. Plaintiff John Pluecker, a freelance writer and translator, was denied a contract to translate material for an art exhibit hosted by the University of Houston’s Blaffer Art Museum for refusing to sign the constitutionally suspect certification. And, most concerning from an academic freedom standpoint, the lawsuit also alleges that the University of Houston’s Department of Modern and Classical Languages rescinded an offer for Pluecker to speak and lead a workshop to a class of college students on account of his refusal to sign a contract agreement with the promise not to participate or support a boycott of Israel.

People and organizations including the ACLU, the American Association of University Professors’ Committee A on Academic Freedom and Tenure, the AAUP’s Hank Reichman, The Atlantic’s Conor Friedersdorf, Glenn Greenwald, the Center for Constitutional Rights, Palestine Legal, J Street, and The New York Times’ editorial board have voiced opposition to bills and statutes prohibiting boycotts of Israel. FIRE stands with them on this issue.

Thankfully, Sens. Bernie Sanders and Dianne Feinstein are working together to prevent this misguided approach to combating anti-Semitism from being tacked onto the next spending bill or otherwise passed into law. FIRE is concerned about an apparent rise in anti-Semitism on and off campus, but urges lawmakers to avoid using censorship to combat the threat.