Maryland is one of 26 states that have infringed on residents’ First Amendment rights by restricting companies that support a boycott of Israel from being eligible to bid for state contracts. These restrictions specifically target the Boycott, Divestment, and Sanctions (BDS) movement, which according to its website, uses peaceful means to “end international support for Israel’s oppression of Palestinians and pressure Israel to comply with international law.”
These anti-BDS laws are designed to punish people for their political views and have led to six lawsuits, including one filed this month in Maryland federal court by the civil rights organization Council on American-Islamic Relations (CAIR) on behalf of plaintiff Saqib Ali, a former Maryland state delegate.
The lawsuit challenges Gov. Larry Hogan’s 2017 executive order prohibiting the state from doing business with individuals and entities that engage in or support a boycott of Israeli businesses. Because of the order, Mr. Ali was denied the opportunity to bid on state contracts because he chooses to boycott products manufactured by Israeli corporations that he sincerely believes support and contribute to the oppression of Palestinians.
The ACLU of Maryland takes no position on the BDS movement or boycotts of any other foreign government. But CAIR; Freedom to Boycott, Maryland Coalition; and the ACLU all strongly believe this executive order violates the First Amendment and makes a mockery of the constitutional principle that all Americans are entitled to their views and free to believe as they choose.
This bizarre restriction resembles many others introduced in state legislatures across the country that have penalized individuals and institutions for their political views regarding Israel and Palestine.
In Texas, residents in the town of Dickinson, for example, were shocked when recovery aid after Hurricane Harvey’s devastating landfall was made contingent on their willingness to sign a loyalty oath to Israel. And in Austin, CAIR filed a lawsuit last month on behalf of a speech-language pathologist who lost her job when she refused to sign an addendum to her contract renewal saying she would not boycott Israel during its term.
In Arizona, CAIR filed a lawsuit on behalf of a U.C. Berkeley lecturer who was invited to speak at Arizona State University, but was first requested to sign a loyalty oath requiring speakers to certify that they do not support the BDS movement. In response to the lawsuit, the university agreed to remove the clause from all its speaker agreements, and the lecturer was allowed to speak.
The ACLU also filed a lawsuit in Arizona on behalf of an attorney who provides legal aid to incarcerated individuals and lost his contract with the state because he refused to pledge not to boycott Israel.
In Arkansas, the ACLU filed a lawsuit on behalf of a newspaper that was required to pledge that it would not boycott Israel or otherwise be paid less to run state advertisements in its publications.
And in Kansas, the ACLU filed a lawsuit on behalf of a school teacher who was chosen for a program to train math teachers, but was told she could not participate because she refused to certify that she would not boycott Israel, which she does along with her Mennonite church.
In a step in the right direction, federal courts in Arizona and Kansas have already issued orders blocking or narrowing the scope of statewide anti-BDS measures.
Maryland's executive order was enacted after bills designed to similarly infringe upon Marylanders’ First Amendment rights failed to pass in the state legislature for three consecutive years.
In his defense, Governor Hogan offered the justification that “boycotts based on religion, national origin, place of residence or ethnicity are discriminatory”, and so “contracting with businesses that practice discrimination would make the state a passive participant in private-sector commercial discrimination.”
What he fails to understand is that the boycotts are not based on religion, national origin or ethnicity, but rather on political opposition to the actions of a foreign government. They are no more discriminatory than the state’s own boycott of Iranian or North Korean companies.
Mr. Hogan’s executive order singles out one group of people whose viewpoint he disagrees with, for official state punishment. That is precisely what the First Amendment prohibits.
As the Supreme Court made clear in its landmark decision in NAACP v. Claiborne Hardware, which found that a civil rights era boycott of white owned businesses was protected by the First Amendment, political boycotts empower individuals to collectively express their dissatisfaction with the status quo and advocate for political, social and economic change.
From the Boston Tea Party, to the Montgomery Bus Boycott, to the campaign to divest from South Africa, boycotts have been a part of our country’s political tradition. We respectfully and strongly urge Governor Hogan to acknowledge these concerns, protect the First Amendment rights of all Marylanders, and rescind his unconstitutional executive order in its entirety.
Zainab Chaudry is director of Maryland at the Council on American-Islamic Relations; she can be reached at firstname.lastname@example.org. Dana Vickers Shelley is executive director at the ACLU of Maryland; she can be reached at Dana@aclu-md.org. Nathan Feldman is an organizer at the Freedom to Boycott MD Coalition; he can be reached at email@example.com.