Texas law targeting Israel’s critics applies to oil, guns
In an erosion of our constitutional rights, the 8th Circuit Court of Appeals ruled on
June 22 that economic boycotts are not protected free speech under the First Amendment.
With this decision, the court upheld an Arkansas law that permits the state to do business only with contractors that refuse to boycott Israel or the territories it controls. The plaintiff in this case was the Arkansas Times, a local newspaper that does not boycott Israel or engage in any sort of foreign policy, but that refused to abdicate its First Amendment rights by signing the required affirmation in order to receive ad revenue from a state university.
We are both American rabbis who are committed to the safety and security of Israel and to its long-term flourishing side-by-side with a Palestinian state that ensures that Palestinians, like Jews, can fulfill their national ambitions and right to self-determination. Neither of us boycotts Israel or otherwise participates in the global boycott, divestment and sanctions movement.
Yet these laws have sweeping ramifications that go far beyond the question of boycotting Israel or any other country.
We believe that our constitutional right to free speech includes protection of speech with which one disagrees or even finds offensive. Infringing on free speech in order to protect one’s own political interests ultimately erodes the First Amendment for all Americans.
We are already witnessing this erosion in Texas where free speech is being limited for political reasons, even beyond the question of boycotting Israel.
Last September, the Legislature passed Senate Bill 19, a law restricting state contracts with companies that “discriminate against firearm and ammunition industries.” This means that a corporation making the conscientious decision to respond to the horrific massacre of school children in Uvalde (or the less sensational gun violence that on average kills more than 120 Americans each day but rarely makes
national headlines) by choosing not to invest in the firearms industry might find itself unable to secure government contracts in Texas.
Indeed, Citigroup, which in 2018 announced that it will not do business with clients who sell guns to those who haven’t passed background checks, now finds itself choosing between its financial interests and a moral commitment to stemming the proliferation of firearms. Other major banks including JP Morgan Chase and Bank of America are in similar situations.
Faced with losing major contracts with the state of Texas, it is likely that many corporations will abandon their principled objection to investing in firearms. Indeed, one law firm that represents companies in government contracts advises companies to “assess the impact of Texas Senate Bill 19 on their government contracting opportunities, and (to) expect and prepare for heightened state regulation of corporate firearm policies.”
This is bad news for those who, fed up with the federal and state governments’ inaction, instead turn to pressuring corporations to divest from the gun industry. And it’s bad for those of us who believe in the democratic value of the First Amendment, which ensures Americans’ right to express our values and opinions in public.
The language of this law is a virtual cut-and-paste of the 2017 Texas law which, like the Arkansas law, barred the state from doing business with companies that boycott Israel or Israeli-controlled territory, and which is now being contested in court (T’ruah, an organization one of us heads, filed an amicus brief with J Street in this case, as well as in the Arkansas case). A federal judge blocked enforcement of the law. Using the same template, in September, Texas also passed a law forbidding the state from doing business with companies that engage in “energy discrimination” — that is, those that divest from fossil fuels. States including Louisiana, West Virginia, Oklahoma, Kansas and South Carolina have introduced copycat legislation, thanks to an organized push by the American Legislative Council, best known for promoting model legislation for some of the nation’s most conservative state lawmakers.
More than 30 states have, like Arkansas and Texas, passed laws banning or restricting state business with contractors who boycott Israel and/or the territories it controls. The ACLU plans to appeal the decision in the Arkansas case. There have been parallel, though unsuccessful, efforts to pass similar bills in Congress. Although champions of these laws claim to be fighting antisemitism and protecting Jews, the most significant outcome of the laws is success in shutting down constitutionally-protected speech critical of Israel.
While a company that refuses to do business with Jews would certainly be guilty of unlawful discrimination, choosing not to do business with Israel is akin to boycotting Russia over its invasion of Ukraine, or Florida over its “Don’t Say Gay” law, or China over its use of slave labor by Uyghur people. One can choose to participate in or shun such boycotts; both choices are protected by the First Amendment.
A true commitment to the Bill of Rights requires us to defend the principles of free speech even, and especially, in the cases of speech with which we disagree. Anti-boycott laws have already opened the door to laws in Texas and beyond that will keep more dangerous firearms on the street and more fossil fuels polluting our planet. Regardless of one’s opinion about boycotting Israel or any other country, we must protect the First Amendment for all of us, lest its crucial protections disappear altogether.