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Maryland software engineer sues Gov. Larry Hogan over anti-BDS law

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A Maryland software engineer and former state delegate is suing his state’s governor for signing an executive order into law which targets and penalizes supporters of the boycott, divestment, and sanctions movement (BDS), in what he says is a violation of his First Amendment rights.

In December 2018, Syed “Saqib” Ali, an outspoken proponent of BDS and co-founder of Maryland grassroots pro-BDS organization Freedom2Boycott, found two potentially lucrative contracts open for bidding. He intended to apply for both, judging his 20-years experience in tech would make him a formidable contender.

But due to an executive order known as “Prohibiting Discriminatory Boycotts of Israel in State Procurement”, signed into law October 2017 by Maryland’s Republican Governor Larry Hogan, the state requires Saqib to denounce BDS in order to even apply for the contracts. He would need to provide a written statement along with each submitted bid guaranteeing he is not presently, nor does he plan to engage in a boycott of Israel “and its territories” while contracted with the state.

“I want to apply for these contracts, but I’m certainly not going to sign any such pledge,” Saqib told Mondoweiss. “Certainly not.”

Saqib Ali

To add insult to injury, the governor signed the executive order after a long, drawn-out but ultimately successful campaign heralded by Freedom2Boycott and allied free speech and Palestinian solidarity organizations, to kill an anti-BDS bill introduced to the Maryland state legislature. But no sooner had activists finished celebrating this rare victory, than Hogan appeared in his office to sign the executive order, characterizing BDS as “shameful” in comments to the press. He was flanked by Jewish community leaders and members of pro-Israel donor organizations.

“He issued this executive order, which is, basically the same [as the bill activists managed to defeat]” explained Saqib, only this time “without us being able to stop it.”

Similar Laws

Before Governor Hogan put the anti-BDS measure into effect in his state, there had been a spate of nearly identical bills and executive orders codified in 22 other states. But with language that makes no distinction between the internationally recognized borders of Israel and the illegal Israeli settlements in occupied East Jerusalem and across the West Bank, the Maryland measure goes a step further.

In practice the law threatens the livelihood of American citizens who refuse to engage in commercial activities with settlements in the occupied Palestinian territories. Engaging in economic boycott against the state of Israel until it ends its violation of Palestinian human rights is a moral choice; refusing to buy settlement products is a legal one. In other words, anti-BDS measures punish Americans for their adherence to international law.

After careful consultation with his lawyer, Saqib brought a lawsuit against the Governor on January 9. The suit claims that Hogan’s executive order violates Saqib’s right to free speech, and is therefore unconstitutional.

“When you boycott something, it’s like you’re talking,” said Saqib. “And that has the highest level of protection.”

The judiciary has agreed in the past. In its landmark 1982 decision in NAACP v. Clairborne Hardware, the US Supreme Court ruled overwhelmingly that commercial boycotts to bring about political, social and economic change are not only political speech, but occupy “the highest rung of the hierarchy of First Amendment values.”

Saqib’s lawyer, Gadeir Abbas, said this protection of speech is sacrosanct in American politics. From the Boston Tea Party tea boycott to the Montgomery Bus Boycott, grape boycott and boycott of Apartheid South Africa, there exists a deep legacy of economic boycott to bring about social and political change in the American psyche, Abbas said.

Saqib’s lawsuit has the potential to draw a wealth of attention from the media, politicians and activists. No stranger to attention, the Council on American Islamic Relations (CAIR), the largest American Muslim civil rights organization is providing pro-bono legal support for the plaintiff. Abbas is a senior litigation attorney with CAIR.

CAIR is involved in a similar suit in Texas where Bahia Amawi, a children’s speech pathologist at an Austin public school is suing the state for violating her constitutionally protected right to boycott. Amawi’s school declined to renew her contract despite her decade of experience after she refused to sign a pledge nearly identical to the one in Maryland. Abbas is also litigating that suit.

A similar push is taking place at the federal level as well. Last week, the U.S. Senate passed the Strengthening America’s Security in the Middle East Act of 2019 which includes a provision that would criminalize BDS. Should the bill become law, BDS supporters nationwide are likely to feel effects quite similar to Saqib and those in the 26 states with anti-BDS measures already in effect as of this month.

A legal and political battle

Saqib’s suit names both the governor and Maryland Attorney General Brian Frosh and if he wins, according to his lawyer, Maryland state agencies will be prohibited from including anti-BDS language in any future contracts. It will also add to the growing collection of precedent and legal opinion that agrees such measures are unconstitutional.

If Saqib loses the case however, “the ramifications will depend on the reasons why the lawsuit failed,” Abbas told Mondoweiss.

“If Saqib loses for technical reasons, it won’t mean much other than this particular lawsuit didn’t accomplish what it set out to do. If it’s lost on the merits — where a court were to conclude that this anti-BDS executive order was constitutional,” Abbas added, there will still be room to continue pursuing anti-BDS legislation as illegal.

A loss “wouldn’t necessarily be the final word on the matter,” said Abbas.

Saqib says Abbas, who has been involved in three of the other lawsuits against similar measures, is “focused on the suit itself” but also the perception in the public’s mind.

“This is a legal battle, but this is also a political battle,” said Saqib. He said his lawyer sees the two fronts as “intertwined.”

Time hasn’t eroded the relevance of the Supreme Court ruling on boycotts. In response to lawsuits filed against anti-BDS measures in two other states, lower court judges upheld the Supreme Court’s initial ruling and found attempts to outlaw BDS unconstitutional. The ACLU is appealing a third ruling by a judge in Arkansas who said the measures are not unconstitutional. With the addition of Saqib’s lawsuit, seven lawsuits so far have been brought against these measures since they first began showing up in state legislatures about two years ago.

Governor Hogan (who is seen as a possible Republican challenger to Donald Trump in 2020) has until March 8 to respond to the suit and as of press time, he had not done so. Hogan could not be reached by Mondoweiss for comment. But a spokeswoman for Hogan’s office told a local newspaper “We are confident that our executive order is completely consistent with the First Amendment and will be upheld in court.”

Jesse Rubin

Jesse Rubin is a freelance journalist from New York. Twitter: @JesseJDRubin

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21 Responses

  1. ckg on February 12, 2019, 1:46 pm

    The ACLU is appealing a third ruling by a judge in Arkansas who said the measures are not unconstitutional.

    I have not read anywhere that Arkansas Times v. Waldrip is under appeal. Is there a reference?

    • Citizen on February 13, 2019, 1:05 pm

      I don’t see anything on ACLU web site about such an appeal.

    • Abe Bird on February 14, 2019, 12:01 pm

      No one bothers him from personally boycotting Israel, and he is freely invited to remove his computer and cell-phone components/gadgets that were invented, developed or produced in Israel.
      Of course, I wish him well, but if God forbid, he is ill or injured, I expect him to demand his doctors not to give him cure, medicine or a supportive means of healing that were invented or produced in Israel [For example, one-sixth of the medical and pharmaceutical devices in the UK are manufactured in Israel. I do not know what their share in America is].

      My understanding is that the law is against calling for others to boycott Israel, which is usually accompanied by a threatening action. It is a brutal and condescending discourse that evokes fear, violence and crime. The law is on the public level, against public incitement and misleading of the public. This does not negate the right to criticize Israel, as one may criticize any other state, but it removes the sting from the perpetuated anti-Israel demagogy, most of which are based on a shaky foundation of lies, hiding the truth or telling half truth [which sometimes is more nasty than telling the truth], spreading rumors as tool of defamation and denigrating Israel and calling for violence and some even for the annihilation of Israel.

      • Mooser on February 14, 2019, 8:40 pm

        “…perpetuated anti-Israel demagogy…/… annihilation of Israel.”

        Oh, I see. I guess these aren’t the droids I’ve been seeking after all.

      • YoniFalic on February 15, 2019, 6:23 am

        Manufacturing is hardly inventing. US trade rules encourage companies to set up manufacturing or to transship through Israel.

        On the whole the Chinese, the Koreans, the Japanese, and the Vietnamese are better at manufacturing. Without US trade rules that discriminate in favor of Israel, there would be no non-Israeli manufacturers in Israel.

        It is important to realize that the cost of Israel to the USA involves a lot more than official foreign aid to Israel.

        Probably more than half of Israel’s GDP is effectively subsidized by the USA.

      • Mooser on February 15, 2019, 12:19 pm

        As a Jew, I do not find this rhetorical whip-sawing, back and forth from ‘don’t let a dwindling people be wiped out by Arabs’ one day to ‘your world will collapse if Israel fails’ the next to be a very attractive way of presenting ourselves.

        Could we pick one or the other, groveling or triumphalism, and maybe stick to it? Just sayin’…

      • eljay on February 15, 2019, 1:11 pm

        || Abe Bird: … a shaky foundation of lies, hiding the truth or telling half truth [which sometimes is more nasty than telling the truth], spreading rumors as tool of defamation … denigrating … and calling for violence and … annihilation … ||

        That is an excellent description of Zionism.

      • Talkback on February 15, 2019, 1:43 pm

        Abe Bird: “No one bothers him from personally boycotting Israel, and he is freely invited to remove his computer and cell-phone components/gadgets that were invented, developed or produced in Israel.”

        How on earh did Jews manage to boycott Nazi Germany based on your ludicrous reasoning? And I’m not only talking about Gutenberg’s invention, opiods, Kindergardens, the X-ray tube, etc.

      • Mooser on February 15, 2019, 2:17 pm

        “That is an excellent description of…”

        Would be nice if maybe, oh, just once, we got a Zionist supporter who wasn’t a Jedi Knight into the bargain.

      • Mooser on February 15, 2019, 4:40 pm

        ” he is freely invited to remove his computer and cell-phone components/gadgets that were invented, developed or produced in Israel.”

        I don’t think it’s to far of a stretch to imagine devices sold with a “No Apartheid Content”. Some people might even pay a little more for that.

      • echinococcus on February 15, 2019, 9:25 pm

        “invited to remove his computer and cell-phone components/gadgets that were invented, developed or produced in Israel…”
        //
        The answer given to your forerunners in occupied France was: “We prefer to use German guns against the occupier; they’re the best!”
        //
        Do you think people with a minimum of brains will take the enemy recommendations about how to boycott him? Shoo.

  2. Misterioso on February 13, 2019, 9:35 am

    The attempt by American Zionists and their Democrat/Republican bought and paid for fawning puppets to in effect negate the First Amendment will prove to be a failure and cause them great harm. The vast majority of Americans revere their constitution.

  3. rthomas13 on February 13, 2019, 10:51 am

    Trump’s success in appointing many Republican lawyers to the federal courts and of course to the supreme court do not bode well for a defense of the first amendment. If the courts will not defend the first amendment, there seems little one can do except go to jail.

  4. annie on February 13, 2019, 12:20 pm

    “the governor signed the executive order after a long, drawn-out but ultimately successful campaign heralded by Freedom2Boycott and allied free speech and Palestinian solidarity organizations, to kill an anti-BDS bill introduced to the Maryland state legislature”

    that’s got to be really frustrating. to be successful in killing a bill only to have the governor defy state legislators and sign it anyway.

    bet it was the benjamins.

    • genesto on February 13, 2019, 12:56 pm

      Probably more like the Madisons!

      • annie on February 13, 2019, 1:02 pm

        i’ve never seen a madison!

      • Mooser on February 15, 2019, 12:12 pm

        “i’ve never seen a madison!”

        Few have, but at next year’s State of the Union address, Trump plans to invite the Benjamins and Greenbacks as his guests.

    • Citizen on February 13, 2019, 1:08 pm

      Yes, it’s disgusting how easily the Zionists circumvent US law; they’ve been doing it easily since Bobby Kennedy tried to Make the ZOA ‘s unincorporated arm AIPAC register under FARA.

  5. Ossinev on February 13, 2019, 4:55 pm

    AIPAC and Co must be fouling their underpants. The more they try to suppress BDS the more they expose the ugly truth about First Loyalty amongst it`s members and the more it exposes the fact that a large proportion of the older generation of American legislators have been for years, in return for large hand outs of Benjamins, putting the interests of a Foreign State before the interests of America.

    The emerging active younger generation of Americans including would be legislators thanks to the Internet and social media are waking up to the fact that core American values including rights guaranteed under the First Amenment are being sacrificied for this Foreign State. The Salad Days for American Zionism are coming to an end.

    Tick tick

  6. Marnie on February 13, 2019, 11:19 pm

    What first amendment rights?

    Rebuking Trump, House votes to end US involvement in Yemen
    If the legislation passes in the Senate, it faces a likely veto by US President Donald Trump.
    by William Roberts
    5 hours ago

    “Washington, DC – The House of Representatives passed a resolution on Wednesday that would end the United States’s support for the Saudi-UAE war in Yemen, a strong rebuke to US President Donald Trump.

    The measure, which was passed by 241-177 vote, will now go to the Senate where it enjoys broad support among Democrats and key Republicans. The Senate passed a similar measure in December, but that bill died when Congress adjourned for the year.

    “Nearly all of the bombs that have fallen say the same thing, `Made in the United States of America’, ” Democratic Representative Jim McGovern said ahead of Wednesday’s vote.

    “They fall on weddings. They fall on hospitals and on homes. They fall on funerals, refugee camps and school buses,” he added. “It is an aerial bombing campaign that hammers civilians every single day.”

    Two amendments were added to the resolution before the final vote. The first allows for continued intelligence sharing with Saudi Arabia, and the second condemns anti-Semitism and declares it’s the policy of the US to oppose trade boycotts against allies such as Israel.

    The bill invokes the 1973 War Powers Act, which gave Congress the ability to end US involvement in a conflict if there was no formal declaration of war.

    Trump veto?

    If the bill passes the Senate, it faces a likely veto by Trump, who avoided any mention of Yemen in his State of the Union address last week and whose administration has escalated tensions with Iran.”

    Trump has to protect his best buds, the Saudis, so he probably will veto it. Disgusting to sneak into this legislation the now shiny new american policy against boycotts, when if you are still taught american history, it was the boycott of tea that preempted the revolutionary war against british ‘colonialism’. History is full of unreal ironies.

  7. Ossinev on February 14, 2019, 2:15 pm

    @Abe Bird
    “No one bothers him from personally boycotting Israel, and he is freely invited to remove his computer and cell-phone components/gadgets that were invented, developed or produced in Israel”

    You forgot to mention the cherry tomatoes oh and didn`t Israelis invent the wheel way back when ?

    The world managed just fine after Racist Apartheid South Africa imploded after BDS. It will manage just fine after Racist Apartheid Israel implodes after BDS.

    Tick tick

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