Updated July 10, 2018: On June 29, the ACLU agreed to the dismissal of its lawsuit challenging Kansas' unconstitutional law requiring contractors with the state to certify that they do not boycott Israel. The dismissal was based on the Kansas legislature’s decision in April to amend the law to narrow its scope so that the certification is only required of companies that do $100,000 or more of business with the state, effectively carving out the plaintiff math teacher, Esther Koontz. Kansas was directed to pay $41,602.50 for Koontz' legal fees. The amended law, which remains an unconstitutional burden on the First Amendment right to engage in a political boycott, can be challenged again by plaintiffs directly affected by the law’s new certification requirements.
On Tuesday, January 30, a federal judge issued a preliminary injunction, blocking Kansas from enforcing the state's anti-boycott law while the case is being litigated. The decision, the first court ruling in a case challenging the constitutionality of laws aimed at countering boycotts for Palestinian rights, affirmed what Palestine Legal has argued since the first anti-boycott bills were introduced in 2014: that such boycotts are clearly protected by the First Amendment.
Judge Daniel Crabtree wrote: “[T]he Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”
He made this conclusion by comparing the plaintiff’s boycott for Palestinian rights to the 1960s Mississippi boycott of white businesses to protest institutionalized racism. It was this boycott that led to the seminal Supreme Court case, N.A.A.C.P. v. Claiborne Hardware, which held that boycotts to effect social, political and economic change were protected First Amendment activities.
“The conduct prohibited by the Kansas Law is protected for the same reason as the boycotters’ conduct in Claiborne was protected,” Judge Crabtree wrote.
Ms. Koontz, other members of the Mennonite Church, and others have "banded together" to express, collectively, their dissatisfaction with Israel and to influence governmental action. Namely, its organizers have banded together to express collectively their dissatisfaction with the injustice and violence they perceive, as experienced both by Palestinians and Israeli citizens. She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne.
In blocking Kansas from enforcing its anti-boycott law, Judge Crabtree also explained that the state cannot require contractors to adopt a particular viewpoint just because it may be favored by the state:
The conduct the Kansas Law aims to regulate is inherently expressive. It is easy enough to associate plaintiff’s conduct with the message that the boycotters believe Israel should improve its treatment of Palestinians. And boycotts—like parades—have an expressive quality. Forcing plaintiff to disown her boycott is akin to forcing plaintiff to accommodate Kansas’s message of support for Israel.
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