In a Major Free Speech Victory, a Federal Court Strikes Down a Law that Punishes Supporters of Israel Boycott by Glenn Greenwald,
A FEDERAL JUDGE on Tuesday ruled that a Kansas law designed to punish people who boycott Israel is an unconstitutional denial of free speech. The ruling is a significant victory for free speech rights because the global campaign to criminalize, or otherwise legally outlaw, the Boycott, Divestment, and Sanctions movement has been spreading rapidly in numerous political and academic centers in the U.S. This judicial decision definitively declares those efforts — when they manifest in the U.S. — to be a direct infringement of basic First Amendment rights guaranteed by the U.S. Constitution.
The enjoined law, enacted last year by the Kansas legislature, requires all state contractors — as a prerequisite to receiving any paid work from the state — “to certify that they are not engaged in a boycott of Israel.”
The month before the law was implemented, Esther Koontz, a Mennonite who works as a curriculum teacher for the Kansas public school system, decided that she would boycott goods made in Israel, motivated in part by a film she had seen detailing the abuse of Palestinians by the occupying Israeli government, and in part by a resolution enacted by the national Mennonite Church. The resolution acknowledged “the cry for justice of Palestinians, especially those living under oppressive military occupation for fifty years”; vowed to “oppose military occupation and seek a just peace in Israel and Palestine”; and urged “individuals and congregations to avoid the purchase of products associated with acts of violence or policies of military occupation, including items produced in [Israeli] settlements.”
A month after this law became effective, Koontz, having just completed a training program to teach new courses, was offered a position at a new Kansas school. But, as the court recounts, “the program director asked Ms. Koontz to sign a certification confirming that she was not participating in a boycott of Israel, as the Kansas Law requires.” [Unbelievable, human beings – especially “law makers” – have evolved into beings lower than slugs] Koontz ultimately replied that she was unable and unwilling to sign such an oath because she is, in fact, participating in a boycott of Israel. As a result, she was told that no contract could be signed with her.
In response to being denied this job due to her political views, Koontz retained the American Civil Liberties Union, which sued the commissioner of education, asking a federal court to enjoin enforcement of the law on the grounds that denying Koontz a job due to her boycotting of Israel violates her First Amendment rights. The court on Tuesday agreed and preliminarily enjoined enforcement of the law.
The ruling is significant for two independent reasons. The first is the definitive and emphatic nature of the ruling. The court dispensed with an oft-repeated but mythical belief about free speech rights: namely, that they only bar the government from imprisoning or otherwise actively punishing someone for their views, but do not bar them from withholding optional benefits (such as an employment contract) as retaliation for those views. [AER violated Ernst’s Charter rights, judged her a criminal without evidence or a trial (which Supreme Court of Canada Rosalie Abella changed 12 years later to AER ruling Ernst a “vexatious litigant”) for speaking the truth publicly about Encana breaking the law, and punished her by withholding energy regulation after Encana illegally fractured and contaminated the drinking water supply of Ernst and her community] Very little effort is required to see why such a proposition is wrong: Just imagine a law which provided that only people who believe in liberalism (or conservatism) will be eligible for unemployment benefits or college loans. Few would have trouble understanding the direct assault on free speech guarantees posed by such a law; the same is true of a law that denies any other benefits (including employment contracts) based on the state’s disapproval of one’s political views, as the court explained in its ruling (emphasis added):
Even more important is the court’s categorical decree that participating in boycotts is absolutely protected by the First Amendment’s guarantee of free speech and petition rights.
Citing the 1982 U.S. Supreme Court case that invoked free speech rights to protect members of the NAACP from punishment by the state of Mississippi for boycotting white-owned stores, the court in the Kansas case pointedly ruled that “the First Amendment protects the right to participate in a boycott.” In doing so, it explained that the core purpose of the Kansas law is to punish those who are critical of Israeli occupation and are working to end it: “The Kansas Law’s legislative history reveals that its goal is to undermine the message of those participating in a boycott of Israel. This is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel.”
Indeed, it’s hard to imagine a law that more directly violates the First Amendment’s guarantee of free speech than one that seeks to deny people benefits for which everyone else is eligible due solely to the state’s disapproval of their political views and activism. Since that’s exactly what this Kansas law did, the court concluded that it was unconstitutional.
BEYOND THE COURT’S emphatic rationale, the decision is significant because repressive measures like this have spread, and continue to spread, far beyond Kansas.
Indeed, as we have repeatedly reported and documented, the single greatest threat to free speech in the West — and in the U.S. — is the coordinated, growing campaign to outlaw and punish those who advocate for or participate in activism to end the Israeli occupation.
Numerous other U.S. states have implemented similar measures as the one in Kansas — including New York, where, as we previously reported, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies “to terminate any and all business with companies or organizations that support a boycott of Israel” and “requiring that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott.” As the New York Civil Liberties Union told The Intercept at the time about Cuomo’s order: “Whenever the government creates a blacklist based on political views it raises serious First Amendment concerns and this is no exception.”
Last year, a measure sponsored by Benjamin Cardin, a Democratic senator from Maryland and an AIPAC loyalist, joined by 43 other senators, went even further, purporting to impose prison sentences and large fines for anyone working with international organizations to boycott Israel. Only after the ACLU vehemently denounced the bill as a grave First Amendment attack that “would punish individuals for no reason other than their political beliefs” did several senators say they were re-considering their support.
Indeed, it’s hard to overstate how pervasive and mainstream these attempts to legally suppress criticisms of Israel have become, including in the U.S. As the legal advocacy organization Palestine Legal told The Intercept yesterday, “Since 2014, over 100 anti-boycott measures (similar to the one blocked in Kansas) have been introduced in the U.S., at least 24 of them enacted. Palestine Legal responded to 308 suppression incidents in 2017 and nearly 1,000 in the last four years.” The report issued by the group this week details just some of those efforts:
Hurricane Harvey victims were required to pledge not to boycott Israel to receive relief aid;
An NYC bookstore hid a children’s book about Palestine after calls for censorship;
A Palestinian American professor at San Francisco State was sued for researching and teaching about Palestine;
A Black student leader at the University of Wisconsin was condemned for speaking out against the connections between white supremacy and Zionism by Trump’s nominee to head the U.S. Department of Education’s Office for Civil Rights.
So widespread are attempts to punish and repress speech and activism aimed at ending the Israeli occupation that the Center for Constitutional Rights has dubbed this movement “the Palestine Exception” to free speech rights in the U.S.
The federal court ruling from yesterday is a ringing endorsement of the vital constitutional principle that people cannot be punished by the U.S. government or state governments due to disapproval of their political activism and viewpoints — even if the goal is to protect the Israeli government and its decades long illegal occupation from criticism and activism. The direct result of this ruling is that the Kansas state government is barred from continuing to force teachers and other state residents to take an oath to refrain from boycotting Israel upon pain of being denied contracts, but the broader and more enduring effect may be to emphasize just how authoritarian, repressive, and contrary to core civil liberties the global attempt to abuse the power of law to criminalize or suppress this free expression in the name of protecting Israeli occupation is. [Emphasis added]
Israel’s Prime Minister Benjamin Netanyahu speaks with Canada’s Prime Minister Justin Trudeau [AP]
Last week, Canada jumped on the anti-BDS bandwagon, joining France, the United Kingdom and, as recent congressional rumbles become a roar, the United States.
The irony is, the motion to “reject the Boycott, Divestment and Sanctions [BDS] movement” was not passed under the former Conservative Prime Minister Stephen Harper, whom Israeli Prime Minister Benjamin Netanyahu dubbed “a great friend of Israel and the Jewish people“.
Instead, it was the recently elected Liberals, led by Prime Minister Justin Trudeau, who got snookered by the opposition Conservatives into passing the latter’s motion “to condemn any and all attempts by Canadian organisations, groups or individuals to promote the BDS movement, both here at home and abroad”.
Those organisations include the United Church of Canada and its two-million members, as well as unions and universities.
Snookered because, as Foreign Affairs Minister Stephane Dion took great pains to outline during the February 19 debate, just about anything to do with Israel is highly divisive in Canada, which voters witnessed last year during the federal election campaign.
“To me, this is further proof that the Conservatives have not learned from their mistakes and are still trying to divide Canadians on issues that should unite them,” argued Dion in the House at the start of the debate that lasted the better part of the day.
He was followed, one by one, by Liberal MP after Conservative MP, all declaring their support for Israel, their revulsion of anti-Semitism, their denunciations of Hamas as a terrorist group.
When they spoke of ‘collective punishment’, it was merely to describe how BDS affects Israelis and not how Israel demolishes Palestinian homes.
But, in their more than 55,000 word-debate, there were two scant mentions of illegal settlements – and only to point out how nobody boycotts Turkey for its occupation of northern Cyprus, or Morocco for its takeover of the West Sahara.
When they spoke of “collective punishment”, it was merely to describe how BDS affects Israelis and not how Israel demolishes Palestinian homes. As for UN Resolution 194, which governs the Palestinian right of return and is one of the main aims of the BDS movement, it never came up – although it is plainly stated on the government’s Global Affairs website that Canada supports the resolution.
After his long and convoluted soliloquy on the merits of profitable relations with Israel, Dion concluded, with seeming regret: “We do not need fewer ties between Canada and Israel; on the contrary, we need more. We must implement the Canada-Israel free trade agreement in order to reduce technical barriers, enhance cooperation, increase transparency in regulatory matters, and reduce transaction costs for businesses. That is the way forward. We must oppose anything that stands in the way of stronger ties between Canada and Israel.”
Motion had to pass
And so, said Dion – who was conveniently in Berlin during the vote on February 22 – the motion had to pass.
Which it did: 229 to 51. Trudeau, who openly opposed BDS prior to his becoming prime minister, voted for it to pass.
Among the abstentions and/or absentees were the leader of the Green Party, Elizabeth May, and 43 Liberals, including 10 Muslim Liberal MPs. Three Liberal MPs voted against the motion.
As one MP would later explain, his motivation was not support, or the lack of it, for Israel. Instead, his concerns were over freedom of speech.
Throughout, it was left mostly to the third and fourth place parties, the New Democrats (NDP) and the Bloc Quebecois, to vote against the motion.
They did so by reminding Trudeau that it was his father, the late Liberal Prime Minister Pierre Trudeau, who, in 1982, bequeathed to Canada its Charter of Rights and Freedoms, which guarantees freedom of conscience, thought, belief and expression. [But only for criminal, not civil Canadians, as made clear by the Supreme Court of Canada in their January 13, 2017 ruling in Ernst vs AER.]
“The issue here is not about defining Israel and Palestine, which is a good debate that we should have, and we need that debate within the House,” exclaimed longtime NDP MP Charlie Angus.
“The question that has been put here is about the condemnation of individuals and organisations, including church people, teachers, and all manner of people. Whether the member agrees with them or not, it is the role of parliamentarians to stand up for individual rights. I am absolutely shocked that the member would stand with the Conservatives on a motion that specifically calls upon us to condemn individuals for their right to dissent.”
However, being condemned is one thing. Being outlawed is another. Canadians, so far anyway, still have the right to say what they like about the policies of the state of Israel, and they can also buy, or not buy, its products. Canada’s Charter would make it unconstitutional for any government motion to go any further than what was passed last week. [Given how the Supreme Court of Canada ruled in Ernst vs AER, don’t count on it. There are still an lot of Harper judges on that court. Just how Zionist is Canada’s top court and how much control does rights-abusing Israel have over it?]
Pushing the envelope
That’s probably why the human rights organisation, Canadians for Justice and Peace in the Middle East (CJPME), is not only mockingly pushing the envelope on promoting BDS, it’s also pushing sticky notes to slap on offending products on store shelves.
What’s more, on the very same day that Parliament voted to condemn organisations that promote BDS, the student society at Canada’s prestigious McGill University voted 512-357 to support BDS. However, the vote was nullified over the weekend during the online ratification process.
According to Diana Buttu, a Canadian-born Arab Israeli and former adviser to Palestinian President Mahmoud Abbas, told the Globe and Mail, “Canada follows international law and correctly labels Israel’s colonisation of the West Bank as illegal … Yet, the government passes a resolution condemning those who aim to uphold international law and Canadian foreign policy? It’s nuts.”
Perhaps not so nuts. The motion “to condemn” can pass constitutional muster.
Meanwhile, Canadians – at least those already reluctant to speak out against Israel for fear of being labelled anti-Semitic – will be intimidated into total silence now.
Talk about chilling.
Antonia Zerbisias is an award-winning Canadian journalist. She has been a reporter and TV host for the Toronto Star, the CBC, as well as the Montreal correspondent for Variety trade paper.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.
CJPME LAUNCHES CREATIVE NEW “BOYCOTT ISRAEL” CAMPAIGN; DEFIES SPINELESS [CANADIAN] PARLIAMENTARIANS Press Release by Canadians for Justice and Peace in the Middle East (CJPME), February 19, 2015
Do you know where your sodastream is made?
Montreal, February 19, 2015 — In light of ridiculous theatre in Canada’s parliament this week, Canadians for Justice and Peace in the Middle East (CJPME) openly launches a creative new campaign to deepen the “Boycott Israel” movement in Canada. CJPME was specifically cited in the parliamentary motion targeting organizations supporting economic action against Israel, and CJPME has launched its new campaign in response. [Bravo! Too many Canadians are cowards and corrupt with greed and selfishness, especially those on the far religious right] CJPME’s campaign invites Canadians from across the country to sign up for a packet of free “Boycott Israel” sticky notes. CJPME invites Canadians to go to local stores and post these on Israeli merchandise, thus warning potential buyers against buying products from Israel.
The “Boycott Israel” sticky notes read: “WARNING! DO NOT BUY THIS PRODUCT. Made in Israel: A country violating international law, the 4th Geneva Convention, and fundamental human rights. STAND UP FOR HUMAN RIGHTS. Boycott Israel until it respects international law. http://bdsmovement.net #BDS.”
CJPME’s new campaign is part of the broader international Boycott, Divestment and Sanctions movement (BDS) targeting Israel with economic pressure until it respects international law. Israel is in long-time violation of dozens of UN resolutions, and has been regularly cited for human rights violations against Palestinians for literally decades. CJPME tends to focus on the “B” (Boycott) part of the movement, as CJPME seeks to promote aspects of the BDS movement in which the majority of Canadians can participate in support of human rights in Israel-Palestine.
The BDS is a legitimate means of protest and pressure, is neither “anti-Israel” nor “anti-Semitic,” and is in response from a specific 2005 call from Palestinian civil society. The BDS movement is deliberately non-violent, is grounded in principles of international law, and condemns unjust behaviour. When the injustices perpetrated by Israel end, so will the BDS action. CJPME observes that the goals of BDS actually align with Canada’s official foreign policy positions on Israel-Palestine.
“Like many Canadians, I am shocked and upset by politicians’ seeming willingness to threaten and undermine our cherished Canadian right of freedom of speech,” [It’s not Canada anymore, it’s Israel North, Steve Harper made sure of that, with Justin Trudeau et cowardly al finishing what Harper started] declared Thomas Woodley, President of CJPME. “Even if they may disagree with our words or our actions, politicians with any conscience would still stand up for our right to voice our opinion,” continued Woodley. CJPME has launched its new “Boycott Israel” sticky note campaign in direct response to parliament’s ill-conceived motion and threats.
CJPME also points out that there are many blatant errors in the Conservative Party’s motion against BDS, and encourages Canadian media and politicians to take the time to understand the written and legal basis for BDS. [Emphasis added]
About CJPME – Canadians for Justice and Peace in the Middle East (CJPME) is a non-profit and secular organization bringing together men and women of all backgrounds who labour to see justice and peace take root again in the Middle East. Its mission is to empower decision-makers to view all sides with fairness and to promote the equitable and sustainable development of the region.
For more information, please contact CJPME at 438-380-5410
Canadians for Justice and Peace in the Middle East www.cjpme.org
The whole or parts of this press release can be reproduced without permission.
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[Refer also to:
2017 01 21: Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University
2017 01 25: Jessica Ernst Open Letter to Chief Justice Beverley McLachlin Regarding False and Seriously Damaging Statements in Justice Rosalie Abella’s Supreme Court of Canada Ruling, Ernst v AER
2017 02 08: Canada’s Supreme Court justices travel (including to Israel) to exchange ideas, discuss legal issues with international judges, Chief Justice Beverley McLachlin says politics off-limits, but legal problems are on the extracurricular agenda ]