Liberties Reporting on First Amendment freedoms

Federal court blocks Kansas anti-boycott law

First Amendment | Judge rules bill shielding Israeli businesses from discrimination violates constitutional free speech protections
by Bonnie Pritchett
Posted 2/06/18, 03:37 pm

A federal judge has temporarily blocked a Kansas law requiring state contractors to certify they are not participating in any boycotts against Israel. U.S. District Judge Daniel Crabtree said the Kansas law, enacted in July, stymies protected political speech.

But the Kansas law is not unique: Two dozen states have drafted so called “anti-BDS” laws to counter the boycott, divestment, and sanctions movement levied against Israel by pro-Palestinian activists. Arkansas, Texas, Nevada, and North Carolina also passed anti-BDS laws last year, while the governors of Maryland and Wisconsin signed anti-BDS executive orders.

Kansas teacher Esther Koontz, a member of the Mennonite Church USA, filed suit in October, claiming her state’s law cost her the opportunity to work as a math curriculum coach. At the behest of her denomination’s leadership, Koontz boycotts “products associated with the [Israeli] occupation or produced in settlements in occupied territories.” The Mennonite Church USA resolution, passed in July, also calls on church members to “examine the legacy of anti-Semitism in their own history and life.”

Kansas state attorneys argue the law prevents discrimination based on national origin and protects the $139 million trade relationship between the state and Israel. Contractor boycotts could give Israeli companies cause to withdraw their business dealings from the state, according to Kansas Assistant Attorney General Shon Qualseth, who wrote the brief filed in response to Koontz’s lawsuit.

The law, passed with overwhelming bipartisan support, is an effort to preserve the state’s working relationship with Israel. If potential contractors want to protest Israel’s politics, “we would prefer not to do business with you,” state Rep. Troy Waymaster, chairman of the House Appropriations Committee, told me.

But Crabtree said the desire to protect Israeli businesses from discrimination doesn’t trump U.S. constitutional rights. The law “is either viewpoint discrimination against the opinion that Israel mistreats Palestinians or subject matter discrimination on the topic of Israel,” the judge wrote in his ruling. “Both are impermissible goals under the First Amendment.”

American Civil Liberties Union attorney Brian Hauss, who represents Koontz, called the Kansas law an “ideological litmus test.” Koontz has completed Kansas State Department of Education training to serve as a math curriculum coach but can’t get a job with the state until she signs a contract pledging not to boycott Israel.

The ACLU also filed a lawsuit in December against Arizona’s 2016 anti-DBS law.

In Kansas and across the nation, both sides of the BDS debate claim the constitutional high ground. Citing a 1982 U.S. Supreme Court decision, BDS supporters call boycotts politically protected speech. But state legislators, like Florida state Rep. Randy Fine, a Republican who introduced legislation last month to strengthen his state’s anti-BDS law, said targeting Israel while ignoring the moral failings of other nations borders on anti-Semitism. State Rep. Jared Moskowitz, a Democrat, co-sponsored the Florida bill.

The pushback against the pro-Palestinian BDS movement has prompted the U.S. Congress to consider federal anti-BDS legislation. The United States would not be the first country to take such a step. In France, calling for boycotts of Israel is considered a hate crime.

Even Israel has anti-boycott laws, but they’re not without controversy: Three Israeli teenagers filed a lawsuit against two New Zealand activists for their alleged influence in the New Zealand singer Lorde’s decision to cancel a June 2016 concert in Tel Aviv. Filed in December, the lawsuit is the first under a controversial 2011 Israeli law prohibiting boycotts against the nation and businesses in its West Bank settlements.

Facebook Facebook First Presbyterian Church of Tulsa

State-sanctioned baptism announcements?

A lawsuit against an Oklahoma church for disclosing the conversion and baptism of a former Muslim could lead to secular court incursions into historically—and constitutionally protected—ecclesiastical matters. In reversing its original decision to dismiss the case, the Oklahoma Supreme Court conflated two distinct legal doctrines that establish boundaries of court jurisdiction in church polity, attorneys for the church said.

“John Doe,” as he is known in his complaint, sued First Presbyterian Church of Tulsa, a Presbyterian Church (USA) congregation, and pastor James Miller in 2014. Doe claims the church broke its promise to keep secret his conversion to Christianity and baptism when it posted the news online. Weeks later, while in his home country of Syria, Doe claims “radical Muslims” who learned about his conversion online, kidnapped, tortured, and attempted to kill him. He escaped and returned to Oklahoma, where he endured multiple surgeries to treat his injuries. Blaming the church for what happened, Doe sued for $75,000.

The Oklahoma Supreme Court initially dismissed the case for lack of jurisdiction: The lawsuit dealt with ecclesiastical matters, giving the church autonomy, the justices ruled. Doe appealed last year, and in December the Oklahoma high court reversed its decision, allowing Doe to move forward with his suit.

John Tucker, an attorney for the church, said the justices conflated ministerial exception doctrine with ecclesiastical abstention/church autonomy doctrine: The former acts as a defense to lawsuits, the latter a shield from lawsuits. By mixing the two, the court subjugated the “rules, customs, and traditions of the baptizing church” to the plaintiff’s request.

“Under the substituted opinion, courts have the right to tell churches how they can and cannot report baptisms,” Tucker wrote in a brief asking the court to again reconsider. “Courts would be able to pass judgment on how the good news of a baptism may and may not be published. This position is untenable.” —B.P.

YouTube YouTube John McAdams

Professionalism versus protected speech

The Wisconsin Supreme Court agreed Jan. 22 to hear the case of John McAdams, a tenured associate professor of political science at Marquette University who was fired in 2016 for using his personal blog to criticize a teaching assistant’s illiberal classroom ethic. The school claims McAdams’ actions crossed the line of professionalism. McAdams maintains the Catholic university violated its own policies regarding academic freedom by requiring him to apologize for his writings. A Milwaukee County Circuit Court judge sided with the university in May. McAdams’ attorneys bypassed an appellate court and took the case directly to the state Supreme Court. —B.P.

Permission to speak in Poland

A law written and passed Jan. 26 by Poland’s right-wing Law and Justice Party makes it a crime—punishable by up to three years in prison—to blame the Polish government or all Poles for complicity in the Holocaust. President Andrzej Duda signed the bill into law Tuesday. Poles are quick to remind the world that monuments like Auschwitz testify to Nazi, not Polish, brutality during the German occupation of their country during World War II. But since then, Poles have recounted their stories in books and interviews about Polish betrayers, as well as those who risked everything to save their Jewish neighbors. Some fear the law will stifle the honest, if difficult, discussions the nation must have about its past. Duda said he plans to ask the nation’s constitutional court to evaluate the bill, leaving it open to possible changes. —B.P.

Bonnie Pritchett

Bonnie reports on First Amendment freedoms for WORLD Digital.

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  • Laura W
    Posted: Fri, 02/09/2018 09:51 pm

    Really, Poland? There were people in countries the Nazis never even invaded who were complicit in some form or fashion. How can there not have been someone in Poland who succumbed to the pressure?

  • Brendan Bossard's picture
    Brendan Bossard
    Posted: Sat, 02/10/2018 03:16 pm

    Two thoughts:

    The Mennonite Church USA has put its members in a difficult spot by pressuring them to take a theologically and morally problematic stance.  The resolution's stance against Christian Zionism is akin to replacement theology, and ignores the fact that there would be no "occupation" or "persecution" if Israel's enemies had not threatened to annihilate her in the first place, as they continue to do. Israel has never expressed any desire to murder all Palestinians.  What would the Mennonite Church say if Russia's official policy were to wipe all Ukrainians off of the face of the Earth?

    Second, I hope that John Doe tried to reconcile with the PCUSA for their breach of promise, if they did promise to keep his conversion confidential.  His plight unfortunately is plausible, given Christians' propensity for gossip.  All it takes is one thoughtless person.  Nonetheless, St. Paul chastised the Corinthians for embarrasing Christianity by bringing public lawsuits against each other.

  • momof 13
    Posted: Sun, 02/11/2018 09:16 am

    This was perhaps the most difficult to understand article I have ever read. I could not figure out if the laws were for Israel or against. I had to read some sentences over & over till I finally gave up trying to understand.