The First Amendment protects political boycotts, yet state after state has considered or passed laws designed to penalize supporters of Palestinian human rights who boycott Israel. Congress has even considered making it a felony, punishable by exorbitant fines and up to 20 years in prison, to support a boycott of Israel led by international governmental organization, such as the United Nations or European Union. In the first ever legal challenge to one of these anti-boycott laws, a federal judge issued a preliminary injunction against a Kansas anti-boycott law.*
Kansas’s anti-boycott law was similar to many of the state laws that have popped up in recent years (and which DRAD has continuously opposed). Kansas bars individuals and businesses from receiving state contracts if they boycott Israel. Esther Koontz, who was represented by the ACLU in challenging this law, was a Mennonite. In line with her church’s teachings, she had decided to support human rights boycotts against Israel. Koontz was also a former math teacher who applied for a contract to train with Kansas Department of Education’s Math and Science Partnership to train teachers. She was qualified and was posed to get the contract, but there was one problem. Koontz refused to certify that she would not boycott Israel.
Koontz’s case is illustrative of how anti-boycott laws violate the First Amendment. Koontz was denied a government benefit, because of her political speech. Speech that in no way impacted her ability to fulfil her professional obligations.
Since 2014, we have sent scores of letters and legal memoranda outlining how these laws flout the First Amendment. And now a federal judge has agreed ruling that:
The conduct the Kansas Law aims to regulate is inherently expressive. It is easy enough to associate plaintiff’s conduct with the message that the boycotters believe Israel should improve its treatment of Palestinians. And boycotts—like parades—have an expressive quality. Forcing plaintiff to disown her boycott is akin to forcing plaintiff to accommodate Kansas’s message of support for Israel. (citations omitted).
These law continue to pop up. We are currently fighting against an anti-boycott law in Missouri and are continuing to oppose the federal Israel Anti-Boycott Act. While it was always clear that these dissent chilling laws were unconstitutional, this ruling will certainly strengthen our advocacy and public education.
*These bills are often called “anti-BDS” bills, as the tactics used by Palestinian rights activists are commonly referred to as “Boycotts, Divestment, and Sanctions” or “BDS.”