A Texas law violates the First Amendment right to engage in political boycotts, according to an amicus brief filed late Friday by the Institute for Free Speech (IFS) and the Foundation for Individual Rights in Education (FIRE). The free speech organizations asked the United States Court of Appeals for the Fifth Circuit to rule the law unconstitutional.
“The First Amendment does not allow government to restrict political boycotts it disagrees with. This principle is critical to free speech whether you support or oppose the BDS movement,” said IFS Legal Director Allen Dickerson.
The Texas law prohibits state entities from contracting with companies that boycott goods and services from Israel. It was passed as a response to the ‘BDS movement,’ an effort to pressure the Israeli government through boycotts, divestment, and sanctions of Israeli businesses.
Supreme Court precedent instructs lower courts to analyze a boycott’s source, context, and nature as a whole to determine if it is protected expressive activity. A political boycott of a foreign government clearly passes that test, IFS and FIRE wrote.
“A boycott is more than the sum of its parts, and its nature and context as a whole must be examined to determine if it is a protected political boycott. The nature and context of the boycotts prohibited by Texas’s H.B. 89 squarely place them among the political boycotts protected by the First Amendment and the district court correctly found the provision facially invalid,” the brief explains.
The plaintiffs in the case include five individuals who have lost employment opportunities or potential employment opportunities as a result of the law. A district court struck down the law on First Amendment grounds on April 25. The state then appealed the ruling to the Fifth Circuit Court of Appeals.
The Institute for Free Speech has been a frequent critic of efforts to restrict political boycotts. IFS and FIRE filed an amicus brief opposing an Arkansas anti-BDS law earlier this year. The Institute also criticized as unconstitutional a 2016 executive order by New York Governor Andrew Cuomo requiring state agencies to divest from institutions or companies that support boycotts of Israel.
The case is Amawi v. Pflugerville Independent School District. To read the Institute’s brief, click here.
