ZOA JNS Op-Ed: Texas’s Anti-BDS Law is Legal & Is Not Free Speech Issue
News Op-Ed
December 31, 2018

With the help of an anti-Israel legal group, an admitted boycotter of Israel named Bahia Amawi sued a Texas school district and the Texas attorney general this week to try to overturn the state’s excellent anti-BDS (boycott, divestment and sanctions) contracting law (Texas Gov. Code § 2270.001, et. seq.). Briefly, Ms. Amawi wants a renewed contract to provide speech-pathology services to Texas public schools, but is refusing to sign a non-discrimination legal certification agreeing not to boycott Israel and companies that do business with Israel (including American companies that are targeted by the BDS movement) during the term of her contract. Her lawsuit deserves to be summarily dismissed by the courts.

BDS boycotters can’t optimally perform gov’t contracts…if an Israeli company manufactures speech-pathology equipment that is 10 times better than any other speech-pathology equipment for the same price, Ms. Amawi will refuse to buy this vital superior equipment. The Texas students receiving Ms. Amawi’s services will suffer because of her discriminatory economic practices. 

This is not a free speech issue, as Ms. Amawi and her friends in the press and in anti-Israel circles wrongly claim. The Texas anti-BDS law has nothing to do with free speech. Ms. Amawi can continue to say whatever lies about Israel that she chooses—on her Facebook page, in the public square, at demonstrations and in private all she wants—without violating the Texas anti-BDS law. She just can’t engage in discriminatory boycotts, discriminatory economic activity.

Under settled law, secondary and tertiary boycotts such as BDS boycotts are not free speech.

Moreover, contractor certifications not to engage in discriminatory boycott activity are similar to the numerous other non-discrimination certifications that government contractors are routinely required to sign. None of these certifications violate free-speech rights. Indeed, the very same form that Ms. Amawi refused to sign contains the following additional anti-discrimination certification barring state contractors from engaging in discriminatory economic practices based on race, religion, sex, etc.:

Vendor agrees to refrain from discrimination in terms and conditions of employment on the basis of race, color, religion, sex, national origin, or handicap, and agrees to take affirmative action as required by Federal Statutes and rules and regulations issued pursuant thereto in order to maintain non-discriminatory employment practices.”

If the courts strike down Texas’s anti-BDS government contracting requirement, then all anti-discrimination government contracting requirements will be at risk of being eliminated. Do we really want state governments to give contracts to vendors who engage in blatant racial or sexual discrimination?

BDS boycotters (and vendors engaging in other types of discrimination) also cannot optimally perform government contracts. For example, even if an Israeli company (or an American company that does business with Israel) manufactures speech-pathology equipment that is 10 times better than any other speech-pathology equipment for the same price, Ms. Amawi will refuse to buy this vital superior equipment. The Texas students receiving Ms. Amawi’s services will suffer because of her discriminatory economic practices. It is surely legitimate for Texas to refuse to contract with someone whose bigotry towards Israel results in harm to Texas’s students and the Texas public.

In large-scale government contracts, there can and will be large-scale deleterious consequences to Texas if Texas is required to contract with vendors who boycott Israeli companies and boycott American companies that do business with Israel. Indeed, the BDS movement has targeted all-American companies such as Caterpillar, HP and Motorola, which provide the types of equipment and services the government often needs.

Texas also has the constitutional right to go even further than the Texas anti-BDS goes. Texas could restrict the speech employed in a contract for a Texas-financed program. The U.S. Supreme Court held that the government may prohibit federal fund recipients from using those funds to express speech with which the government disagrees, stating: “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right” (Rust v. Sullivan, 500 U.S. 173, 1991).

Unfortunately, there is a great deal of misinformation being spread about the scope and content of anti-BDS laws in Texas and other states. To try to make Ms. Amawi seem sympathetic, some groups are falsely and misleadingly portraying her as a mere employee who didn’t sign a “loyalty oath” that impinges on her First Amendment rights.

The facts are that these laws do not affect “free association” or free speech rights; the laws only concern discriminatory economic boycott activity. Second, the Texas anti-BDS law only concerns companies that contract with the government, including sole proprietorships such as Ms. Amawi’s business. State employees are not affected by the law. Third, the law requires contractors to sign an agreement not to boycott the products of Israeli companies and other companies (including American companies) that do business with the State of Israel during the term of the contract; it is not a “loyalty oath” to the State of Israel.

Anti-Israel boycotts also blatantly violate the Oslo accords signed by Israel and the Palestinian Authority. The Oslo accords require the P.A. to cooperate economically with Israel. But instead, the P.A., and terror groups Hamas and the Popular Front for the Liberation of Palestine, instigated anti-Israel BDS as a form of economic warfare against the Jewish state.

It should also be borne in mind that federal anti-boycott legislation targeting the Arab League boycott, enacted almost 40 years ago, has never been overturned.

BDS is moreover a gateway drug to anti-Jewish violence. On college campuses, the BDS group Students for Justice in Palestine has engaged in violent attacks, harassment and threats against Jewish students. And we should never forget that the first official Nazi German action against the Jews was the official boycott of Jewish businesses on April 1, 1933.

There are multiple victims of anti-Israel boycotts, including Jews with no relation to Israel (such as the singer Matisyahu), Israeli Jews, Israeli and Palestinian Arabs, and American and European companies targeted by the expansive BDS cordon. BDS has shuttered companies or forced companies to move, causing thousands of Jews and Arabs to lose their livelihoods through no fault of their own. By contrast, Ms. Amawi can easily obtain a government contract if she simply agrees not to engage in discriminatory boycott economic activity. And she can work in the private sector if she continues to refuse to end her bigoted boycott economic activity.

Ms. Amawi’s misguided boycott moreover hurts the very people whom she purports to want to help. The Arabs on the ground in Israel and Judea/Samaria (aka, the West Bank) want more Jewish businesses to open and expand there. The 2015 Palestinian Center for Public Opinion poll found that despite theoretical “lip service” support for BDS, 55 percent of West Bank Palestinian Arabs said that they would “like to see Israeli companies offer more jobs inside” Judea/Samaria/the West Bank.

For the sake of all concerned, let’s hope that the courts toss out Ms. Amawi’s baseless, counterproductive lawsuit.

Morton Klein is the national president of the Zionist Organization of America. 

Elizabeth A. Berney, Esq. is the ZOA director of Special Projects. 

The original article was posted on JNS.org on 12/27/2018 and can be found here.

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