Texas The Latest Victory for Right to Boycott, As Another Federal Court Blocks an anti-BDS Law

Defending Rights & Dissent Condemns Unprecedented Attack On Press Freedom, Espionage Act Indictments of Julian Assange
May 23, 2019
Coalition Applauds Tabling of Illinois Bill Targeting Anti-Pipeline Protests
May 31, 2019

Texas is like 27 other states in that it prohibits supporters of boycotts, divestment, and sanctions for Palestinian rights from receiving state contracts. It has also joined another growing group of states–those that have had their anti-BDS laws blocked by federal courts.

On April 25, 2019, a federal judge issued a preliminary injunction against the Texas anti-BDS law. A preliminary injunction isn’t the final word on a matter, but it does mean that a judge thinks the plaintiffs are likely to succeed on the merits and not blocking the law would irreparably harm them. In this case, the judge found it was likely that the plaintiffs would prevail on the argument that Texas’s anti-BDS law violated the First Amendment.  A deprivation of a First Amendment right is always an irreparable harm.

Bahia Amawi brought one of the first challenges to Texas’s anti-BDS bill. Amawi was a speech pathologist who worked with developmentally disabled students. As an independent contractor, she was asked to pledge not to boycott Israel or its settlements in the Occupied Palestinian Territories. As an activist for Palestinian rights, she refused. She was no longer allowed to work as a speech pathologist.

Even before it was challenged in court, Texas’s anti-BDS law made national headlines. After Hurricane Harvey, the town of Dickinson, Texas made individuals applying for hurricane relief aid certify they would not boycott Israel. Even the legislative sponsors of the original anti-BDS bill condemned this move.

Of the four federal courts who have issued rulings on anti-BDS laws, three have issued preliminary injunctions. Kansas, the first state to have their anti-BDS bill blocked, amended their law to no longer apply to individuals or sole proprietors and only to contacts worth over $100,000. As the law no longer applied to the individual challenging its constitutionality, it was dismissed. Arizona had been appealing a ruling against their anti-BDS law to the 9th Circuit, which was scheduled to hear the case on June 6. However, Arizona amended its own law in a similar manner to Kansas thus mooting the case. In both cases, it was clear the states feared the likelihood of an adverse ruling. On May 9, 2019, Texas followed in Kansas and Arizona’s footsteps and amended their anti-BDS law so that it would not apply to individuals or small businesses.

The only outlier is Arkansas. The district court in Arkansas not only upheld Arkansas’s anti-BDS law, but ruled that boycotts broadly were not expressive conduct and thus not protected by the First Amendment. This is at odds with Supreme Court precedent.

Since the first anti-BDS bills were proposed in 2014, Defending Rights & Dissent has argued they were unconstitutional Recent court rulings against them vindicate us.