Maryland Legislature Considers Creating a Blacklist of Human Rights Activists

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For the third time in four years, the Maryland General Assembly is considering an anti-free speech, anti-boycott bill specifically designed to silence supporters of Palestinian human rights. The Bill of Rights Defense Committee/Defending Dissent Foundation worked with grassroots partner Montgomery County Civil Rights Coalition and other local groups to fight back against the bill.

As a domestic civil liberties group, BORDC/DDF takes no position on the Israeli-Palestinian conflict or the demands of the Boycotts, Divestment, Sanctions (BDS) movement. However, we recognize that the BDS movement is a movement for political and social change and thus is protected by the First Amendment. Thus, we deeply resent the repeated efforts taking place across the country to hijack the legislative process in order to silence supporters of the movement.

The current bill in Maryland would achieve its ends by prohibiting the state from contracting with, or its pension fund from investing in, “persons” that boycott Israel or “Israeli-controlled territory.” To accomplish this the  Board of Trustees for the State Retirement and Pension System would be tasked with assembling a blacklist that would be based on publicly available information and would be published online.

This blacklist would consist not only of businesses as many proponents of the bill would have people believe. The text of the bill explicitly states that natural persons and non-government organizations (NGOs) are to be included on the blacklist. A number of churches have taken positions in support of boycotts of Israel or Israeli-controlled territory, meaning they would be subject to the blacklist. This is particularly troubling, as a blacklist of individuals and civil society groups based on their political views is wildly unconstitutional and will have a chilling impact on individual well beyond those targeted by the bill.

BORDC/DDF sent a lengthy letter which was co-signed by the Center for Constitutional Rights, Maryland National Lawyers Guild, Montgomery County Civil Rights Coalition, and Palestine Legal, to the Maryland General Assembly outlining the bill’s unconstitutionality. Supporters of the bill argue that there is no constitutional right to being awarded a state contract, which is true. But the state cannot deny you a contract based on your political activity. The Supreme Court has long held that even if someone has no right to a public benefit, they cannot be denied such a benefit based on exercise of a constitutional right. This is known as the “unconstitutional conditions doctrine” and has been used by the Supreme Court to find that denying someone a public benefit, because of their speech is no less coercive than if the state were to fine them for their speech. Using this doctrine the Supreme Court has held that public employees have free speech rights and that independent contractors, who are targeted by the bill, have the same free speech rights as public employees.

The Supreme Court has ruled that boycotts for political, social, economic change are political speech and receive the maximum protections under the First Amendment. Regardless of what one thinks of the BDS movement, it articulates very clear demands, which it seeks to use boycotts to achieve. This is exactly the type of boycott for political, economic, and social change that the First Amendment protects.

On Tuesday February 28, 2017 our Policy and Legislative Counsel, Chip Gibbons, testified before the Maryland General Assembly House Health and Government Operations Committee. Gibbons laid out for the committee the historical importance of boycotts as a form of dissent, as well as how the bill was unconstitutional. He also addressed a number of falsehoods stated by the bill’s supporters during the first panel, including the demonstrably incorrect statement that federal law already prohibits individuals from supporting BDS.

After each member of the panel of opponents had finished their remarks, they faced a barrage of hostile questions from lawmakers. Instead of challenging Gibbons’ constitutional analysis, lawmakers expounded upon their person feelings on Israel or other issues of foreign policy, such as former President Barack Obama’s Iran deal,and attempted to get panelist to answer “yes or no” to loaded questions about their personal beliefs about Israel. While many testifying against the bill did so from a position of support from BDS, which is firmly within their rights, Gibbons repeatedly implored the lawmakers to remember that whatever their personal views on Israel were, they did not have the right to pass a law that is intended to silence others.

Whether the lawmakers will uphold the First Amendment or attempt to silence those who dissent from their views on the Middle East remains to be seen. In the past, grassroots mobilizations of civil liberties, peace, faith, human rights, and Palestinian solidarity groups have overcome seemingly insurmountable odds to defeat anti-BDS legislation in Maryland. When Maryland first introduced an anti-BDS bill four years ago, aimed at the American Studies Association and other academic associations that supported academic boycotts of Israeli state institutions, it had enough co-sponsors in one chamber that if it came to the floor it would have passed. Yet, nearly 30 people came to a hearing to testify against the bill and lawmakers were inundated with letters from constituents opposing the anti-free speech bil. Co-sponsors started proclaiming publicly that even though they were co-sponsors of the bill they would vote against it should it come to the floor. It died in committee. Last year, supporters of anti-BDS measures announced their intent to try to get an anti-BDS bill passed. Before it could even be introduced, activists leaped into action and after key Maryland General Assembly leaders came out against the measure, it was never introduced.

Supporters of an anti-free speech, anti-BDS bill are certainly aware of their past defeats. This time they are bringing out a number of high profile figures, including representatives of Maryland’s Governor and Comptroller and former diplomat Dennis Ross. Opponents of free speech in the free state, clearly don’t want to be defeated yet again.

That’s why it’s important that grassroots activists to take action against the bill. Maryland residents can take action against the bill here.


Watch the entire hearing here.