Texas anti-BDS law ruled unconstitutional by federal trial court

| Robert Wintemute pour BRICUP |

On 25 April 2019, in Bahia Amawi v. Pflugerville Independent School District, the United States District Court for the Western District of Texas (Austin Division) issued a preliminary injunction, which prohibits the defendants (the Attorney General of Texas, three public school districts, and two public universities) from “enforcing [House Bill] 89, codified at Tex. Gov. Code § 2270.001 et. seq, or any ‘No Boycott of Israel’ clause in any state contract”. [1]

House Bill 89 provides that “[a] governmental entity may not enter into a contract with a company [including an individual running an unincorporated business as a for-profit sole proprietorship] for goods or services unless the contract contains a written verification from the company that it : (1) does not boycott Israel ; and (2) will not boycott Israel during the term of the contract”. The five plaintiffs who challenged this Texas law were a speech pathologist, a translator, two high-school-debate judges, and a radio reporter, who wished both to contract with public school districts or public universities, and to boycott Israel in different ways.

The Court found that "under [NAACP v.] Claiborne [US Supreme Court, 1982], political boycotts are protected speech … protected by the First Amendment [to the US Constitution]”. House Bill 89 is “a content- and viewpoint-based restriction on speech. It is a content-based restriction because it singles out speech about Israel, not any other country. And it is a viewpoint-based restriction because it targets only speech ‘intended to penalize, inflict harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory’”, but not “contractors who boycott Palestinian companies or companies that engage in reverse boycotts of BDS participants”.

Texas argued that House Bill 89 “is a ‘standard anti-discrimination measure’ prohibiting discrimination on the basis of national origin”. The Court rejected this argument, finding that House Bill 89 is “a viewpoint-based restriction intended not to combat discrimination on the basis of national origin, but to silence speech with which Texas disagrees … The statute’s plain text makes its purpose obvious : to prevent expressive conduct critical of the nation of Israel, not discriminatory conduct on the basis of Israeli national origin.” The Court also found that “Plaintiffs are likely to establish that H.B. 89 imposes an unconstitutional condition on public employment by requiring contractors to cease and refrain from engaging in constitutionally protected speech”, and that “H.B. 89 requires contractors to declare support for Israel. Particularly in light of the well-known Israel-Palestine conflict and the fact that H.B. 89 is referred to by its sponsor, the governor, and news media as the ‘anti-BDS bill’, the certification that one does not and will not ‘boycott Israel’ is a ‘political or ideological message’ the First Amendment prevents Texas from compelling”.

The Court concluded : “[T]his case is about whether Texas may prohibit boycotting the State of Israel as a condition of public employment. It is not about the merits of the significant and contentious public debate surrounding the relationship between Israel and Palestine … The statute threatens ‘to suppress unpopular ideas’ and ‘manipulate the public debate through coercion rather than persuasion’. … This the First Amendment does not allow.”

Robert Wintemute, Professor of Human Rights Law, King’s College London

[1For a press release, see here. For the full text of the Court’s Order (56 pages), see here.