ACLU Sues Kansas Over 'Unconstitutional' Law Barring Boycott of Israel

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ACLU Sues Kansas Over 'Unconstitutional' Law Barring Boycott of Israel

The law, part of a wider pattern of targeting the non-violent BDS movement, decried as "attempt by the government to silence one side of a public debate"

bds protest

Boycott, Divest, Sanction (BDS) protests have been held across the United States in recent years. (Photo: Alex Chis/Flickr/cc)

The American Civil Liberties Union (ACLU) on Wednesday filed a lawsuit to challenge a Kansas law that requires any company or individual who contracts with the state to sign a statement certifying that they are not actively engaged in boycotting Israel.

"This law is an unconstitutional attempt by the government to silence one side of a public debate by coercing people not to express their beliefs, including through participation in a political boycott," said ACLU attoreny Brian Hauss. The law took effect July 1, 2017.

"From the Boston Tea Party to the Montgomery bus boycott to the campaign to divest from businesses operating in apartheid South Africa, political boycotts have been a proud part of this country's constitutional tradition."
—Brian Hauss, ACLU attorney

The lawsuit could have sweeing consequences nationally. Kansas' law is similar not only to laws adopted by other states but also to the Israel Anti-Boycott Act that has been introduced in the U.S. House and Senate.

In July, the ACLU sent a letter to Congress opposing the congressional proposal, and according to the group, "as a result, Senate sponsors of the bill are considering changes."

"These bills and laws vary in numerous respects, but they share a common goal of scaring people away people from participating in boycotts meant to protest Israeli government policies, including what are known as Boycott, Divestment, and Sanctions (BDS) campaign," Hauss wrote for the Israeli newspaper Haaretz on Wednesday.

"From the Boston Tea Party to the Montgomery bus boycott to the campaign to divest from businesses operating in apartheid South Africa, political boycotts have been a proud part of this country's constitutional tradition," Hauss concluded. "That's why the ACLU has opposed anti-boycott bills in state legislatures for the past several years. That's why we've come out against the Israel Anti-Boycott Act in Congress. And that's why we're suing to challenge Kansas's unconstitutional anti-boycott law."

The ACLU is representing a high school mathematics educator, Esther Koontz, who belongs to the Mennonite Church USA. Koontz has decided to not purchase products made by Israeli companies and companies that operate in occupied Palestinian territories, in order to comply with calls (pdf) for an Israel boycott by members of her congregation.

Koontz, who develops her school's math curriculum and trains teachers, had planned to contract with the state to work for the Kansas Department of Education's Math and Science Partnerships program. However, she could not sign the form certifying she wasn't participating in an Israel boycott, and the state subsequently refused to hire her.

"I'm disappointed that I can't be a math trainer for the state of Kansas because of my political views about human rights across the globe."
—Esther Koontz, plaintiff

"I'm disappointed that I can't be a math trainer for the state of Kansas because of my political views about human rights across the globe," said Koontz.

"The state should not be telling people what causes they can or can't support," she continued. "You don't need to share my beliefs or agree with my decisions to understand that this law violates my free speech rights."

In a statement released Wednesday, the ACLU explained several reasons why the Kansas law violates the First Amendment:

  • it compels speech regarding protected political beliefs, associations, and expression;
  • restricts the political expression and association of government contractors;
  • and discriminates against protected expression based on its content and viewpoint.

"Because the Act engages in speaker-based discrimination and burdens fundamental First Amendment rights," the suit alleges, "it also violates the Equal Protection Clause."

"Whether in Kansas or in Congress, this kind of legislation is an anti-democratic attempt to silence a nonviolent movement for equality for Palestinians and a just peace for everyone in the region."
—Rabbi Joseph Berman, Jewish Voice for Peace

The advocacy group Jewish Voice for Peace (JVP) welcomed the ACLU's lawsuit and alluded to the ruling's potential ability to defeat other measures nationwide.

"Whether in Kansas or in Congress, this kind of legislation is an anti-democratic attempt to silence a nonviolent movement for equality for Palestinians and a just peace for everyone in the region," said Rabbi Joseph Berman, JVP's government affairs liaison.

"It sets an alarming precedent of curtailing free speech," he added, "in an era when mobilizing grassroots energy to resist repressive government policies is more important than ever."

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