The Council on American-Islamic Relations (CAIR), the United State’s largest Muslim civil rights and advocacy organisation, won its lawsuit on behalf of Bahia Amawi. Amawi, a speech language pathologist in Texas, lost her job after she declined to sign a contract that would renew her employment with the Austin public school district because it included a “No Boycott of Israel” clause. This clause stated that she does not currently nor will engage in a boycott of Israel or “otherwise take any action that is intended to inflict economic harm” on that country. Such clauses are included in state contracts because of Texas House Bill 89, known as the Anti-BDS Act, which prohibits the state from contracting with or investing in entities that boycott Israel.
The CAIR Legal Defense Fund filed the lawsuit in December 2018, challenging the Anti-BDS Act, H.B.89 on grounds of the First Amendment. In a sworn declaration to the court, Amwai stated that “I refused to sign the addendum because I do not understand why my political protest against Israeli oppression has anything to do with my work as a speech language pathologist for a Texas school district.”
On April 25, the Act was struck down as unconstitutional by Judge Pitman of the Western District of Texas on grounds that the “first amendment does not allow” the suppression of unpopular idea. Furthermore, the statute threatens to “manipulate the public debate through coercion rather than persuasion”. CAIR have described it as a “landmark victory”
The judgement has also been described as ‘remarkable’ in its forcefulness.
Judge Pitman’s 56-page order is remarkable in rebuking State of Texas’ defense of H.B. 89- its anti-boycott law. He finds that boycotts are speech and Plaintiffs’ BDS boycotts are inherently expressive conduct governed by the 1982 Supreme Court decision NAACP v. Claiborne. pic.twitter.com/bQw2IOd2OP
— Jamil Dakwar (@jdakwar) April 26, 2019
Judge Pitman references the case of NAACP V. Claiborne Hardware CO., a landmark civil rights case in which the Supreme Court ruled that states cannot prohibit the peaceful advocacy of a politically-motivated boycott, which was protected by the first amendment.
In his Judgement, Judge Pitman states that “Under Claiborne, Plaintiffs’ BDS boycotts are not only inherently expressive, but as a form of expression on a public issue, rest on ‘the highest rung of the hierarchy of First Amendment values (p. 26 of judgement)
He also suggested that the State of Texas, in this statute “intended not to combat discrimination on the basis of national origin, but to silence speech with which Texas disagrees (p. 32)”
Nora Barrows-Friedman, writing in The Electronic Intifada, writes a common assertion with BDS campaigners and sympathisers that the Texas law “is part of a systematic nationwide attempt to stigmatize and outlaw the boycott, divestment and sanctions (BDS) campaign for Palestinian rights in the US”. And the Judge appears to agree with this assertion. In response to the Texan State’s argument that the anti-BDS act is one of many similar orders in 25 other states, he considers this a “weakness” because a fundamental American constitutional value is that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein (p.55)”. The judgement has therefore been considered a victory for the BDS movement as a whole.
Another victory for BDS.
A federal judge blocks anti-BDS law in Texas.
The injunction follows similar orders issued by federal judges against anti-BDS laws in Arizona and Kansas, citing First Amendment violations.#BDS
— Mohamed Khan (@khan1952) April 28, 2019
BREAKING: This is a BIG VICTORY for BDS!!! Texas anti-BDS law declared unconstitutional!!! https://t.co/xg4FSgmZxl
— Omar Acevedo Pacheco (@omar_sjpr) April 26, 2019
As a result, every “no boycott of Israel” included in state contracts in the State of Texas is void, and the Attorney General is no longer permitted to include or enforce the clauses in any state contract. This also allows Amawi to return to her position. Amawi is not the only person that has been affected by this law in Texas, and the American Civil Liberties Union is representing four other Texans who also refused to sign contracts for employment and other opportunities, because of the inclusion of the anti-BDS clauses. Their lawsuit is considered likely to succeed given the judgement.