No Exceptions

Pro-Israel groups claim that the First Amendment doesn’t protect the boycott, divest, and sanctions movement. A Kansas court just ruled against them.

American protesters stand in solidarity with Palestine in Oakland, CA, in 2014.

After attending several presentations about Israel’s treatment of Palestinians, Kansas math teacher Esther Koontz decided she wouldn’t buy products from SodaStream, an Israeli company. She was pleased when her church agreed: in July 2017, Mennonite Church USA passed a resolution urging its members to “avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in the settlements.”

Esther’s life continued more or less the same; she just didn’t carbonate her water at home or buy certain brands of hummus. She completed a train-the-trainers program for public school math teachers and was looking forward to the career benefits and extra pay ($600 per training, plus travel expenses).

Then she received an email from the Kansas State Department of Education stating that she needed to sign a certification that she was not engaging in a boycott of Israel before giving three scheduled trainings.

Esther considered her response. She asked if she could participate without the certification, making it clear that doing so was against her beliefs. Kansas officials told her that she had to sign in order to get paid. She ultimately decided that she could not sign the oath in good conscience. Then, with the help of the American Civil Liberties Union (ACLU), Esther sued.

This week, in a groundbreaking — but not surprising — decision, a federal court stopped Kansas from enforcing this law, which required people like Esther to swear they are not engaged in boycotts for Palestinian rights before contracting with the state.

In granting the preliminary injunction, the court held that the Kansas anti-boycott law “is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel.” The First Amendment doesn’t permit either goal.

Boycotts have long played an important role in American political action, and the Supreme Court has held that the First Amendment protects political boycotts. Yet, in the past four years, American lawmakers have introduced over one hundred measures punishing boycotts for Palestinian rights. Twenty-four states have passed such measures.

Hurricane victims in Dickinson, Texas were required to pledge not to boycott Israel before receiving relief aid. New York’s Nassau County threatened to cancel a Roger Waters concert because the musician supports the boycott movement. Florida is considering doing the same to pop singer Lorde, who recently refused to perform in Israel after fans informed her about the cultural boycott.

Universities have joined in the censorship as well. In 2016, Fordham rejected students’ request to form a Students for Justice in Palestine club. The club’s proposed constitution supports the principles of BDS: a boycott until Israel respects Palestinian rights under international law, including ending the occupation, treating Palestinians equally, and respecting the rights of Palestinian refugees.

The students filed suit, and at a recent hearing, the university’s attorney blurted out that Fordham couldn’t be seen endorsing the BDS movement.

Professors at Brooklyn College, San Francisco State University, University of California Berkeley, and University of Chicago alleged to support BDS now appear on blacklists, and wanted-style posters with caricatured images of the accused are plastered all over their campuses. One graduate student discovered that his entire department had received emails with calls to “denounce” him for his work with Columbia University Apartheid Divest.

These attempts to suppress political speech aren’t unprecedented. Anti-communist repression generated similar civil rights violations. With the passage of the Smith Act in the 1940s, schools required teachers and other public employees to sign statements that they were not involved in any “subversive groups.”

New York’s Feinberg Law required such a loyalty oath. Irving Adler, a math teacher and Communist Party member, was subpoenaed to testify before the House Un-American Activities Committee, which was investigating alleged Communist influence in the nation’s schools. Adler refused to answer the senators’ questions, pleading the Fifth. Adler sued after losing his job and became the lead plaintiff in Adler v. Board of Education (1952).

The Supreme Court upheld New York’s anti-communist statute, but Justice William O. Douglas noted in his dissent that such oaths pose a threat to freedom of expression:

A teacher caught in that mesh is almost certain to stand condemned. Fearing condemnation, she will tend to shrink from any association that stirs controversy. In that manner, freedom of expression will be stifled.

Five years later, the Supreme Court again considered a state’s policy of questioning teachers about their political associations. In Sweezy v. New Hampshire (1957), the state attorney interrogated economist Paul Sweezy about his political leanings and questioned whether his teachings “advocate[d] Marxism.” The Supreme Court held that “there unquestionably was an invasion of petitioner’s liberties in the areas of academic freedom and political expression.”

Despite these clear precedents, tactics like loyalty oaths, certifications, and terminations for political speech have started to surface again.

Pro-Israel lobby groups, fearing that they wouldn’t be able to win over campus activists, turned to state legislatures in an attempt to chill support for BDS. These modern-day McCarthyites — who include a Mossad-linked law firm and Trump’s nominee for the Department of Education’s Office for Civil Rights — argue that boycotts seeking to change Israeli policies are not protected. Against the Supreme Court’s NAACP v. Claiborne Hardware
(1982) decision, which affirmed that the First Amendment covers political boycotts, these anti-BDS advocates put forward the Palestine Exception: no one can protest Israel’s treatment of the Palestinians.

The federal court in Kansas swiftly slapped down this shoddy argument, echoing what we at Palestine Legal have been advising activists for years. The court ruled:

The First Amendment protects the right to participate in a boycott as the Supreme Court held explicitly in NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 (1982) . . . The same analysis applies to the Kansas Law. The conduct prohibited by the Kansas Law is protected for the same reason as the boycotters’ conduct in Claiborne was protected.

This should be obvious. In Claiborne Hardware, several hundred Black Mississippians, including Charles Evers, presented public officials with a list of demands for racial equality. After their demands were rejected, they commenced a six-year boycott of white businesses in the county of Claiborne.

Palestinians calling for a boycott of Israel are also demanding equality in the face of similar oppressions.

Esther Koontz belongs a long line of teachers refusing to bow to state demands for political fealty. History will remember Esther as a hero like Irving Adler.

And as for the McCarthyites, those Democrats and Republicans pushing legislation to slap twenty-year prison sentences on BDS supporters? We already know how they’ll go down in history.

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Radhika Sainath is a civil rights attorney at Palestine Legal and cooperating counsel at the Center for Constitutional Rights. She's appeared on MSNBC, Al Jazeera English, Democracy Now!, and in the Wall Street Journal, the New York Times, and the Los Angeles Times discussing Israel/Palestine, social movements, and the crackdown on Arab Spring protesters.

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