A protest in Melbourne, Australia on June 5, 2010, against Israel’s Gaza blockade and attack on a humanitarian flotilla. Photo by Takver | Wikicommons
A bill that would disallow government contractors from participating in boycotts of Israel has passed the initial hurdles on its way to become law.
Senate Bill 1167, sponsored by Sen. Paul Boyer, R-Glendale, would narrow an existing Arizona law that prevents anyone who the government works with in participating in a boycott of Israel. The law, passed in 2016, was recently blocked in federal court after a judge ruled it is likely unconstitutional on First Amendment grounds.
The original version of the law applied to anyone who got a government contract, and required them to agree to not participate in a boycott, divest and sanction action against Israel, commonly referred to as BDS.
Boyer’s legislation would restrict that law to government contractors with more than 10 employees, and would only be triggered if the contract is for at least $100,000.
“This bill before you is just a slight tweak to the original bill,” Boyer told the House State and International Affairs Committee when it considered the bill this month.
However, the tweaks suggested by Boyer may not be enough to prevent future legal action if the bill is enacted, said Ryan Suto, an attorney for the Arab American Institute.
“Any interpretation of the constitution which allows violations of protected fundamental rights simply because the legislature decided to only violate the rights of a subset of actors would construe the protections of the First Amendment too narrowly by allowing some legal entities constitutional protections, but denying them to others based on arbitrary numerical state definitions,” Suto told the committee.
But Joseph Sabag, an attorney for the Israel Allies Foundation, which supports the bill, said that commercial activity is not covered by the First Amendment.
“It does not introduce or impact any core legal principles that have not been upheld in court,” Sebag said.
First amendment issue or not?
One of the main points of debate during the committee hearing was if the bill would violate the First Amendment.
Suto argued that previous decisions by the United States Supreme Court mean the bill violates the First Amendment.
Specifically, Suto brought up the case of NAACP v. Claiborne Hardware.
In 1966, in Mississippi, the NAACP and its members decided to begin a boycott of white businesses in the area after elected officials refused to hear their calls for racial equality.
The boycott would be off and on over the next three years until a group of merchants in the area decided to sue for damages brought from the boycott.
Eventually, the case made its way to the Supreme Court which decided on an 8-0 vote that political acts like boycotts are protected by the First Amendment.
Suto argued to the committee that the bill would run afoul of this court decision, and that even “larger organizations deserve First Amendment rights, too.”
Amer Zahr, an attorney and Arab American comedian, echoed those sentiments.
“It’s a classic case of putting lipstick on a pig, and here the pig still throws mud in the face of the First Amendment,” Zahr told committee members, adding that the bill “advances the hateful stereotype that Arabs and Palestinians inherently hate Jews.”
Rep. John Allen, R-Scottsdale, took issue with Zahr’s comments during the committee and asked chairman Rep. Tony Rivero, R-Peoria, to “caution the witness to keep to the bill.”
“This has nothing to do with this bill, I don’t, I do not subscribe to that view, ‘cause I support this bill, and I find it alien to what is in this bill,” Allen said during Zahr’s testimony.
But could the bill really run afoul of the First Amendment?
Gregg Leslie, a constitutional attorney and executive director of the First Amendment Clinic at the Sandra Day O’Connor College of Law, said limiting the current law to economic activity makes the bill “less problematic,” but he added that one can’t ignore the bill’s history, which has had “First Amendment issues.”
Leslie also noted that the new bill, if enacted, could make the legal challenge against the current law moot, as the issues raised by the person suing the state would be gone. The plaintiff in that case would not meet the criteria under Boyer’s legislation.
The current law applies to sole proprietors, so someone who is contracted to do legal services for a state entity would be required to agree to the anti-BDS clause even if they have no interactions with Israel.
The court found this to be “likely unconstitutional”.
By changing who the law applies to, Leslie said Boyer’s bill could help the state win an appeal.
Leslie said the new law would have “a better chance” of standing up to challenges, but it still would not entirely remedy the First Amendment issues raised.
“The First Amendment issues will never fully go away when you try to limit types of activity like this,” Leslie said. He also wondered what would stop the legislature from enacting similar bills to prevent the government from working with companies that support abortion or other controversial issues.
What exactly is BDS?
Twenty-six states have passed some form of a law that disallows BDS activities by government contractors.
Their three main stated goals are to get back certain areas such as the West Bank and Golan Heights, receive equal treatment in Israel and allow Palestinians to return to certain areas that have been in contention.
Fifty-five cities around the globe are participating in some form of boycott, divestment or sanction of Israel, including some in the United States.
Critics argue that the movement aims to delegitimize Israel and compare it to the Nazi boycotts of Jewish businesses in 1933.
Earlier this year, Israel released a report that claimed members of the BDS movement had ties to terrorist organizations, a claim that the BDS movement has called “wildly fabricated.”
The BDS discussions are not just happening on a local level, either.
A small bipartisan group in the U.S. House of Representatives introduced an anti-BDS resolution, which will likely become a point of contention among Democrats, who are split on the issue.
The division could be seen in the recent Arizona Senate vote on Boyer’s SB1167, which passed on a 22-8 vote with all the Republican senators voting yes and a handful of Democratic senators joining them.
The bill passed out of the House committee on a 6-3 vote. Its next stop is the House Rules Committee, before heading to the House floor to be considered by the full chamber.
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