For the third time, a federal judge blocks an Israel boycott ban on First Amendment grounds

By Isaac Stanley-Becker

Bahia Amawi was driving to her children’s Taekwondo tournament near Austin on Thursday when her phone began to buzz.

She pulled over and opened a cascade of text messages alerting her to the news that a federal judge had just temporarily blocked enforcement of a state law that said she could either boycott Israel or hold a contract with a local school district to provide speech therapy and early-childhood evaluations. But not both.

“God is great.” Those were the first thoughts that came to Amawi, 46, when she learned that Judge Robert L. Pitman of the Western District of Texas had found that this predicament likely violated her First Amendment rights. An Austria-born American citizen and Muslim of Palestinian origin, Amawi, who brought suit against the school district last year, said she was ecstatic.

“It’s a huge win not just for me, but for everybody here in Texas,” she said in an interview with The Washington Post. “I was in tears.”

In a 56-page opinion, Pitman, an Obama appointee, found that the state could not prohibit boycotting the state of Israel as a condition of public employment. His holding is the third by a federal judge since last year to turn back state legislation that aims to use public money to deter anti-Israel activity.

A spokesman for the Texas attorney general said his office intends to appeal the ruling. “We’re disappointed with the ruling essentially requiring government to do business with discriminatory companies. We look forward to defending this law on appeal,” said spokesman Marc Rylander in a statement.

The decision casts doubt on the constitutionality of state efforts to undermine the movement known as BDS, for boycott, divestment and sanctions. Modeled on the anti-apartheid movement in South Africa, the campaign aims to leverage economic pressure on Israel to win Palestinian rights. It seeks the end of Israeli occupation of “all Arab lands,” the full equality of Arab-Palestinian citizens of Israel and the “rights of Palestinian refugees to return to their homes and properties as stipulated in U.N. Resolution 194.”

BDS is a flash-point in the charged debate over the Israeli-Palestinian conflict — a debate that has evolved as a left-wing flank of the Democratic Party insists on the right to criticize Israel’s government, particularly as it moves to the right under the leadership of Benjamin Netanyahu. The first two Muslim women in Congress, Democrats Ilhan Omar of Minnesota and Rashida Tlaib of Michigan, are also the first two to say they support the BDS movement.

As the boycott has picked up high-profile advocates, its opponents have been moved to declare themselves, as well. In January, the Senate advanced bipartisan legislation proclaiming the right of states to cut ties with businesses that shun Israel.

Among those states was Texas. The legislature’s 2017 “anti-BDS bill,” as it was called, compelled anyone entering into a contract with the state to sign a “written verification” vowing not to boycott Israel. The law’s champions declared, “Anti-Israel policies are anti-Texas policies.”

The law threatened to ensnare powerful global companies, including Airbnb, which announced last fall that it would remove listings in Jewish settlements in the West Bank. The home rental site ultimately reversed itself, and the Texas Comptroller’s Office backed off its promise to sever ties with the multibillion-dollar company.

Now, it’s the state that will have to change course. The effect of the certification was to “suppress unpopular ideas” and “manipulate the public debate through coercion rather than persuasion,” Pitman wrote in his opinion Thursday, quoting from the 1994 Supreme Court case Turner Broadcasting System, Inc. v. FCC, which dealt with must-carry requirements imposed on cable television.

“This the First Amendment does not allow,” the judge held.

The fact that the measure was approved by an overwhelming majority, and that it had parallels in numerous other states, did not bolster the state’s case, the judge reasoned.

“Texas touts these numbers as the statute’s strength,” he wrote. “They are, rather, its weakness.” The Bill of Rights was designed to protect unpopular individuals and their ideas, he observed, rather than to ratify political orthodoxy.

His decision is in line with a similar judgment last September, when a federal judge in Arizona said the state could not require companies to submit a written pledge attesting that they were not boycotting Israel. That decision followed an opinion in January 2018 from a federal judge in Kansas, who ruled for the first time that enforcing a state provision requiring contractors to sign a no-boycott certification violated expressive rights guaranteed under the First Amendment.

More than two-dozen states have enacted similar provisions. One case has gone the other way, with a federal judge in Arkansas tossing a challenge to the state’s anti-Israel boycott law and holding that commercial boycotts are not a protected form of expression. The decision is on appeal, as is the one in Arizona, while the law in Kansas was amended sufficiently to satisfy plaintiffs.

At stake is the constitutionality of broader government efforts to regulate boycott activity by private groups and individuals involved in commercial relationships with the state.

“We’re not going to stop until all 26 states have this shut down or until the Supreme Court weighs in,” said Carolyn Homer, a trial attorney with the Council on American-Islamic Relations, the Muslim civil rights and advocacy group that filed suit on Amawi’s behalf.

To Homer, the ruling was evidence that the tide was turning against such measures, likened by its critics to blacklists. After seeing the victory in Texas, people targeted by the legislation in other states, she said, would be more inclined to seek out her organization, or the American Civil Liberties Union, which has also been battling the laws in the courts.

The ACLU welcomed the ruling.

“Whatever their views on the BDS movement, members of Congress and state legislators should heed this strong message from the courts: The right to boycott is alive and well in the United States and any attempt to suppress it puts you squarely on the wrong side of the Constitution,” Vera Eidelman, a staff attorney, said in a news release.

For Amawi, the ruling’s most profound meaning was a private one. It affirmed her faith.

“I put all my trust in God,” she said. “I depend on him. I make supplication to him. He is always part of my life. I thank him for everything.”

Amawi was born in Austria but has lived in the United States for more than three decades. A mother of four children, ages 8 to 16, she resides in Round Rock, Tex., about 20 miles north of Austin. With a master’s degree in speech pathology, she had contracted since 2009 with the Pflugerville Independent School District, which includes Austin, to provide speech therapy and language evaluations, including for Arabic-speaking students. Austin is home to a growing population of Arab Americans.

Last year, Amawi was preparing to sign her annual contract when she noticed an addition, with language that she had never seen before. The supplemental material asked that she certify that she was not boycotting Israel and would not do so during the term of her contract.

Boycotting Israel, according to state statute, meant “refusing to deal with, terminating business activities with, or otherwise taking any action that is 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.”

“It was wrong in every possible way,” the speech pathologist said, describing the law as a form of censorship. “The foundation of this country is religious freedom, political expression, free speech.”

Amawi, who has family members living in Palestinian territories, claimed in a declaration to the court that she has “seen and experienced the brutality of the Israeli government against Palestinians.” She explained that she participated in the BDS movement to support “peaceful efforts to impose economic pressure on Israel, with the goal of making Israel recognize Palestinians’ dignity and human rights.” Her consumer choices are guided by these values, which dictate, for instance, what brands of olive oil and hummus she buys.

Then her values came into conflict with her employment. She refused to sign the declaration, and her contract was terminated.

Others found themselves in similar situations. The ruling joined Amawi’s suit with claims brought by a handful of plaintiffs represented by the ACLU. They included a freelance writer and artist who held a contract with the University of Houston and two students who held contracts with Texas school districts to judge debate tournaments.

The judge said he took no position on the political commitments held by the plaintiffs — on the “merits of the significant and contentious public debate surrounding the relationship between Israel and Palestinian territories.” But he affirmed their right to hold these views free from retaliation by the state.

When it terminated her contract, the school district notified Amawi that it would offer her a new agreement, shorn of the certification, if the statute in question were invalidated. Her attorney said that means the speech pathologist could have her job back within days.

Amawi was more realistic.

“The school year is ending soon,” she said. “I’ll resume in the fall, for sure.”