A big day for Americans who believe in peaceful, non-violent protest such as the Boycott, Divestment and Sanctions (BDS) movement.
A teacher from Kansas is standing up for her right to boycott Israeli products, and taking the State of Kansas to federal court.
The following excerpts are from the district court’s opinion.
First, STATE OF KANSAS PASSES ANTI-BOYCOTT LAW:
In June 2017, Kansas enacted House Bill 2409 (“the Kansas Law”). This law requires all state contractors to certify that they are not engaged in a boycott of Israel. Kan. Stat. Ann. § 75-3740f(a).
The Kansas Law defines a “boycott” as: [E]ngaging in a refusal to deal, terminating business activities or performing other actions that are intended to limit commercial relations with persons or entities doing business in Israel or in territories controlled by Israel, if those actions are taken either: (1) In compliance with or adherence to calls for a boycott of Israel other than those boycotts to which 50 U.S.C. § 4607(c)1 applies; or (2) in a manner that discriminates on the basis of nationality, national origin or religion, and that is not based on a valid business reason . . . .
Second, KANSAS TEACHER DECIDES TO BOYCOTT ISRAEL:
In May 2017, plaintiff Esther Koontz began boycotting Israeli businesses. She first became motivated to boycott Israel in 2016 when she saw a presentation about conditions in Israel and Palestine. And on July 6, 2017, Mennonite Church USA passed a resolution calling on Mennonites to take steps to redress the injustice and violence that both Palestinians and Israelis have experienced. Ms. Koontz is a member of a Mennonite Church organization. Specifically, this organization’s resolution called on Mennonites to boycott products associated with Israel’s occupation of Palestine. As a consequence, plaintiff decided she would not buy any products or services from Israeli companies or from any company who operates in Israeli occupied Palestine.
Esther Koontz, Kansas teacher, credit to ACLU
Ms. Koontz was qualified to train math teachers and accepted for employment, but when she refused to sign the state’s certification that she would not boycott Israel, Kansas wouldn’t hire her.
Twenty-two states—Maryland, Texas, Florida, Arizona, Illinois, Georgia, Iowa, Kansas, New Jersey, Ohio, New York, Pennsylvania, South Carolina, Alabama, Colorado, Indiana, California, Michigan, Texas, Nevada, Kansas, and North Carolina—have so far passed some form of legislation against boycotts of Israel. Wisconsin makes it twenty-three.
The Intercept noted that the attempts to punish and repress speech and activism aimed at ending the Israeli occupation are so widespread that the Center for Constitutional Rights has dubbed this movement “the Palestine Exception” to free speech rights in the U.S. Senator Ben Cardin (D-Md) wanted to send violators of his anti-boycott legislation to prison.
Ms. Koontz — with the help of the American Civil Liberties Union — decided to sue Kansas claiming its anti-boycott law violates the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. Along with her complaint, she asked the Federal District Court to enjoin the State of Kansas from enforcing its anti-boycott law while the case is pending.
The attorneys for Kansas argued her request for an injunction shouldn’t be granted because Ms. Koontz had never requested a waiver from the anti-boycott law. If she had, the state says it would have granted her a waiver.
The Court ruled January 30, 2018 that a person doesn’t have to apply for a waiver in this type of case because of the chilling effect the Kansas law has on our First Amendment liberties. And Judge Crabtree decided that Ms. Koontz is likely to win her case!
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.
I wonder if any of the other anti-boycott state laws have been challenged in court. Maybe this challenge from Kansas will send a sobering message to states that may be considering adopting such laws. “Think twice before you get on AIPAC’s and Israel’s bandwagon. Don’t tread on Americans’ First Amendment rights!”
Read the court’s opinion in full. This is a case to watch closely. Thank you Ms. Koontz!