In an unprecedented victory for the Boycott, Divestment and Sanctions (BDS) movement, a federal judge has blocked Kansas from enforcing a state law which punishes those who express support or engage in the boycott of Israel.
Federal Judge Daniel Crabtree issued a preliminary injunction on Tuesday, prohibiting the state from acting for the duration of a lawsuit filed in October by the American Civil Liberties Union on behalf of Esther Koontz, a longtime Wichita public school teacher.
The suit derives from Koontz’s adherence to the Palestinian call for BDS. Alongside fellow members of the Mennonite Church USA and in solidarity with Palestinians, she decided to boycott all consumer products from both Israeli companies and those that operate in Israel’s illegal settlements in the occupied West Bank.
After the passage of the anti-BDS law, all Kansas state employees were required to sign a certification guaranteeing they do not participate in the boycott of Israel.
When Koontz refused, the state retributively ended its working relationship with her, despite the fact that Koontz is qualified statewide to train teachers as a contractor with the Kansas Department of Education’s Math and Science Partnerships program.
In a statement, Micah Kubic, director of the ACLU of Kansas, called the judge’s ruling a “notable victory for the First Amendment.”
“The government has no right telling people what they can and can’t support, and this preliminary injunction will protect other Kansans from enduring the First Amendment violation that Ms. Koontz has endured,” Kubic said.
The ruling (PDF) is the first of its kind on the judicial level to counter an escalation of anti-BDS measures passed by state lawmakers in twenty-four states with bipartisan support.
Activists in several states have stopped similarly proposed legislation from becoming law, however, federal anti-BDS bills currently sit in Congress.
In June 2017, Kanas Governor Sam Brownback signed the bill into law after passing the Kansas state legislature with overwhelming bipartisan support. When the measure took effect on July 1, Kansas became the twenty-first state to outlaw the nonviolent BDS movement for Palestinian rights.
Since such measures began to appear, legal and civil rights experts have consistently maintained that the right to boycott is distinctly protected under the First Amendment.
“There’s no question that the First Amendment protects the right to participate in a political boycott,” Vera Eidelman, Brennan fellow with the ACLU’s Speech, Privacy, and Technology Project told Mondoweiss. Eidelman noted that the Supreme Court’s ruling in the 1982 landmark civil rights suit NAACP v Claiborne established this precedent unambiguously.
“This Kansas decision is very correctly in keeping with that case,” Eidelman said, adding that Judge Crabtree’s brief, “does a great job of explaining why our client, Esther Koontz’s boycott is protected in the same way that the boycott in Claiborne was protected.”
As the lawsuit was the first to challenge anti-BDS legislation — though the ACLU has since begun representing a plaintiff in Arizona as well — the ruling from a federal judge suggests the many other such current or proposed measures will not withstand legal scrutiny.
“This is a question of federal constitutional law so we hope that the order serves as a warning to the other states with similar provisions,” Eidelman told Mondoweiss.
In a statement to the Wichita Eagle, Kansas governor Brownback said he thinks the ACLU will ultimately lose the case on appeal. Referring to apartheid South Africa, Brownback said “these types of laws have been passed for years at the federal level.”
However, few if any specific laws prohibiting the boycott of apartheid South Africa have ever existed. If anything, the anti-Apartheid movement in the US grew from the grassroots to eventually include many cities and states.
In October when the lawsuit was first filed, Palestine Legal Director Dima Khalidi said it, “will send a clear message to those Israel advocacy groups and legislators who have shown a willingness to trample on constitutional rights in order to shield Israel from criticism and accountability.”
“In the Trump era especially, we must vigilantly safeguard our right to dissent, including the First Amendment right to support boycotts for Palestinian rights. Elected officials should be in the business of safeguarding our constitutional rights, not legislating them away,” added Khalidi at the time.
And this became true today, as the state cannot enforce the law until a final ruling in the lawsuit.
“[Judge Crabtree] picked up on fact that the Kansas legislature passed the law to silence one voice, specifically those challenging Israel,” Eidelman told Mondoweiss, noting the clarity with which the judge issued the injunction.
“He really honed in correctly on the legislative history that shows the goal of the law was to undermine the message of those participating in a boycott of Israel,” Eidelman added. “And that that is not allowed under the First Amendment.”