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.”
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.”
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.”