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Kansas Sued Over Law Banning Boycotts of Israel

November 8, 2017

Has the United States become a colony of Israel? It might seem so, given Israel’s power over America’s federal and state governments.

Any individual or company wanting to do business with the state of Kansas must sign a statement certifying they are not engaged in a boycott of Israel. The American Civil Liberties Union (ACLU) – and just about everyone else – says this is unconstitutional.

As bizarre and ridiculous as it may seem, 24 states now have similar statutes on the books and there are efforts on the federal level to make boycotting Israel a felony.

According to ACLU attorney Brian Hauss, the new law, which went into effect on July 1, 2017, “is an unconstitutional attempt by the government to silence one side of a public debate by coercing people not to express their beliefs, including through participation in a political boycott.” The law specifically prohibits state contracts with individuals or companies who refuse to say they will not engage in a boycott against Israel. It even makes it impossible for the state or its agencies to hire Kansans who refuse to “engage in commercial relations with persons and entities engaged in business with Israel and Israeli-controlled territories.”The law, also known as House Bill 2409, is one of many aimed at the Boycott, Divestment and Sanctions (BDS) movement. That movement, modeled after the same BDS approach that eventually brought down the former apartheid government of South Africa, encourages non-violent pressure on Israel for its seizure of internationally – and UN – recognized Palestinian territory and the failure to recognize Arab Palestinians as having equal rights with Israelis within the same borders. That non-violent protest includes Boycotting Israel and Israeli companies aligned against the Palestinians, Divesting investments that include Israeli companies aligned against the Palestinians and legal Sanctions against those Israeli-aligned organizations and companies.

The pro-Israeli lobbies in the United States, as well as the highest levels of government, consider the boycott, divestment and sanction options as a sort of “crime of state” against the government and values of Israel. That is why many different anti-BDS bills have already been passed or are pending across the United States, including one currently making its way through the United States Congress that would make boycotting Israel a felony. Trillions wrote about these bills and the anti-BDS movement in its article “WARNING: Israel Is Killing Americans’ Right to Free Speech” (published in the September 2017 issue).

There is one fundamental problem with any attempt to regulate American citizens’ position on the anti-Israel BDS movement. It violates the First Amendment to the U.S. Constitution, which guarantees individuals the right to free speech, since a boycott, which amounts to taking a position on something, is simply an act of free speech.

The specific case the ACLU is backing involves Esther Koontz, a math teacher and curriculum coach in the Wichita, Kan., Dual Language Magnet School.

Back in July of this year, Koontz’s church, the Mennonite Church USA, took a stand on the BDS issue. It voted to divest itself of any financial backing for American companies that profit as a result of Israel’s occupation of Palestinian territories. This would never have become an issue for Koontz, except that earlier in the 2016-2017 school year she was selected to be in the Kansas Department of Education’s Math and Science Partnerships program. It was an honor for Koontz and an opportunity for experienced teachers such as Koontz to guide public school teachers throughout Kansas.

When Koontz came to fill out and sign off the documents associated with the program, those who had selected her required her to sign a statement certifying that she does not boycott Israel. Since she stands with her church on this issue – and that church is involved in a boycott of Israel – she refused to sign the statement. For her personal faith and beliefs, she was blocked from being paid as a contractor.

In filing the suit, the ACLU referred to what Koontz and her church were doing as political in nature. It cited the 1982 case of NAACP vs. Claiborne Hardware Co. as a precedent. In that case, a group of NAACP (National Association for the Advancement of Colored People) activists and others came together to boycott certain white merchants as part of a demand for desegregation. The white merchants, who lost considerable business from the boycott, sued to recover damages from the NAACP action.

The case went to the Supreme Court, which, in a unanimous decision, ruled that the government cannot prohibit politically motivated boycotts. In the decision authored by Justice Stevens, it made the following point to those who were seeking damages from the boycott (from page 458 U.S. 913):

“While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’ Carey v. Brown, 447 U.S. 455, 447 U.S. 467. ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U.S. 64, 379 U.S. 74-75. There is a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.’ New York Times Co. v. Sullivan, 376 U.S. 254, 376 U.S. 270.”

The current case, which the ACLU also refers to as a politically motivated boycott, argues that the Kansas law violates the First Amendment because of the following:

  • It compels specific speech regarding protected political beliefs, association and expression.
  • It restricts government contractors from their constitutional rights to political expression and association.
  • It discriminates against protected expression based on that expression’s specific content and viewpoint.

The suit goes on to say that “Because the Act engages in speaker-based discrimination and burdens fundamental First Amendment rights, it also violates the Equal Protection Clause.”

There will be attempts to get the lawsuit thrown out, of course. Assuming it proceeds, and the ACLU and Koontz’s position is eventually supported by the courts, the resulting decision would have a major effect on the entire BDS movement and related laws across the United States.

Americans choose to boycott Israel because it commits horrific human rights violations, supports widespread criminal activity, steals American technology, and systematically subverts American democracy, as can be plainly seen by the state anti-BDS laws.

Since its founding in 2006, the United Nations Human Rights Council has resolved almost more resolutions condemning Israel than on the rest of the world combined.

In reality, Israel is one of America's greatest enemies.  Every American should certainly boycott Israel. 

Trillions will be monitoring this story closely as it continues to develop.