BY HANK REICHMAN
Lawsuits challenging the constitutionality of laws that require government contractors to disavow a boycott of Israel seem to be proliferating — and that’s a good thing. A week ago I posted about a challenge to such a law in Arkansas by a newspaper barred from running advertising from a state university if it did not endorse an anti-boycott pledge. Two days ago I posted again about a challenge in Texas by a school speech pathologist, barred from working in Austin-area schools because she would not vouch for her opposition to such a boycott. Now, the Chronicle of Higher Education reports this morning, four plaintiffs have filed suit against the Texas attorney general and the boards of the University of Houston (UH) and Texas A&M University, arguing that the Texas law violates the First Amendment.
The plaintiffs are a writer and translator, denied work by UH; a contractor for a public-radio station licensed to Texas A&M; and an undergraduate and graduate student who said they had lost paid opportunities to judge school debate tournaments. George Hale, the radio contractor, signed a contract despite his discomfort “in order to keep his livelihood,” according to the lawsuit. He stopped boycotting Israeli commercial products after signing the form, the lawsuit says. Lawyers from the ACLU of Texas are representing the plaintiffs.
“This lawsuit is about fundamental First Amendment rights, which protect us all from having the government use its power to force us to choose one side or another in a public debate,”said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “Whatever you may think about boycotts of Israel, the bottom line is that political boycotts are a legitimate form of nonviolent protest. The state cannot use the contracting process as an ideological litmus test or to tell people what kind of causes they may or may not support.”
John Pluecker, the translator, said he began translating an essay by a Spanish artist in early 2018, before receiving his formal contract, because he had a prior relationship with the university. When he saw the contract, under which he would have been paid $1,500, he noticed the clause about Israel. He refused to sign it and was not paid for the work he had completed, he charged in the lawsuit.
According to the Chronicle, “In the law suit Pluecker called the contract ‘an intrusion into his free-speech rights’ and added that his refusal to sign the form meant he could not deliver a talk and run a workshop for Houston’s department of modern and classical languages. He would have been paid $250 for the speech, he said.”
But a UH spokesperson said Pluecker would not have been required to sign the form to speak to the department. He claimed the state attorney general’s office had told the university that individual campus speakers could be excluded from the no-boycott law. Edgar Saldivar, the ACLU lawyer, responded, “That’s something that we intend to find out in this lawsuit.”
In August, the AAUP’s Committee A on Academic Freedom and Tenure issued a “Statement On Anti-BDS Legislation and Universities” that registered opposition to such requirements. The statement was in part motivated by reports from the University of Houston, although in the end it did not identify any specific institution, in part because of UH’s claim that the boycott law exempted academic activities. Whether or not Pluecker could have spoken on campus without signing the pledge, however, it is clear that the other activities the suit charges were barred by the law should also have been protected by the First Amendment and principles of academic freedom.
The August Committee A statement reaffirmed that the AAUP “does not endorse BDS. We take no position on the Israeli-Palestinian conflict nor on calls for divestment or economic sanctions. But we oppose all academic boycotts, including an academic boycott of Israel, on the grounds that such boycotts violate the principles of academic freedom.” However, the statement continued, the association’s opposition to the academic boycott
is matched as resolutely by our opposition to these pledges, which are nothing short of an attempt to limit freedom of speech and belief. Indeed, they conjure the specter of loyalty and disclaimer oaths, mainstays of McCarthyism. The right of individuals to engage in political boycotts, and to come together collectively to support a boycott, has a long and storied history in American civil protests. At colleges and universities especially, where reasoned disagreement and debate should be the order of the day, demands that faculty and students forswear support for a peaceful protest are repugnant.
At a time when there is widespread interest in making sure that speakers on all points of the political spectrum are able to make themselves heard on American campuses, the contradiction in seeking to ban advocates of this particular position is obvious and unacceptable. We therefore call on all institutions of higher education in the United States to challenge the required renunciation of BDS and uphold freedom of speech and belief for all members of the academic community.
Meanwhile, in Washington Sen. Ben Cardin (D-MD) and Sen. Rob Portman (R-OH), sponsors of the proposed Israel Anti-Boycott Act that would impose civil and criminal penalties on American companies and organizations participating in boycotts of Israel, are pushing to attach it to the package of spending bills that Congress needs to pass before midnight Friday to keep the government fully funded. The proposal had previously languished after civil liberties groups, including the ACLU, criticized it. The ACLU has condemned the latest proposal, as has J Street, a progressive American pro-Israel group.
Yesterday, the editorial board of the New York Times joined the opposition. “Even the Anti-Defamation League, which has lobbied for the proposal, seems to agree” with the bill’s opponents, the Times noted. “A 2016 internal ADL memo, disclosed by The Forward last week, calls anti-B.D.S. laws ‘ineffective, unworkable, unconstitutional and bad for the Jewish community.’”
“It would be more constructive if political leaders would focus on the injustice and finding viable solutions to the Israeli-Palestinian conflict rather than reinforcing divisions between the two parties and promoting legislation that raises free speech concerns,” the Times editorial concluded. Indeed.
.[UPDATE: Haaretz has reported that Senators Bernie Sanders and Dianne Feinstein sent a letter to Senate leaders urging them not to promote the Cardin-Portman bill, arguing that it would endanger free speech. Both senators are Jewish. Sanders’ opposition is expected, but Feinstein was a bit of a surprise. In 2015, the AAUP and the Council of University of California Faculty Associations (CUCFA) had issued a statement protesting remarks made by UC regent Richard Blum, Feinstein’s husband, in which he implied that the senator would exact a political price if the regents did not approve a controversial “Statement of Principles Against Intolerance” that many thought threatened free speech in a manner similar to the anti-BDS laws.
“While we do not support the Boycott, Divestment and Sanctons (BDS) Movement, we remain resolved to our constitutional oath to defend the right of every American to express their views peacefully without fear of actual punishment by the government,” Sanders and Feinstein wrote in their letter, which was sent to Democratic Minority Leader Chuck Schumer and Republican Majority Leader Mitch McConnell. Both Schumer and McConell support the anti-boycott bill.]
This is a fascinating issue not only in constitutional free speech doctrine including on our campuses, but in ex post facto law (which is what A-BDS constructs are in part); in contract law but also in foreign corrupt practices (some assert potential Article III cause of action). Moreover, how are US citizens or students or professors obligated or bound by US law, to foreign special interests? Part of the answer stems simply from US financial interests that are invested in Israel. That includes some universities. The University of Chicago’s president, Rob Zimmer, actually flew to Israel with a State envoy to sign, in the living room (literally) of Israel’s head of State, an investment deal backed by the Pritzker family (who funds the medical school and whose family members include Obama administration appointees and now the incoming Illinois governor who spent an unprecedented multi million dollar campaign to effectively buy the office). That multi million dollar deal, in the public domain, concerned a joint US-IL water development strategic plan for the Negev desert in part involving molecular engineering science developed at Chicago and freely shared with Israel. So, it is one example of an inter-locking State-university financial investment that is also defining or further exploiting US foreign policy favoritism (largely due to Israel lobbying and campaign donations). Indeed, Illinois governor Bruce Rauner’s very first legislative action was signing an Illinois anti BDS Bill that bars protesting companies from the opportunity to seek State financial management contracts. And outgoing Illinois GOP congressman Peter Roskam sponsored and successfully lobbied passage of a campus anti-semitism act that sanctions criticism (that is, legislatively quells free speech) of Israel, and defines it as effective hate speech. These are among numerous examples of Israel special interests actually interfering in US constitutional freedoms including elections. Russia? Look closer to home. Regards and thank you.
BDS has created a chilling effect on University campuses, where attempts at Israeli/Palestinian dialogue, and and certainly any pro Israel academics or speakers or students are being fairly violently attacked in the name of BDS
In my experience at the University of Chicago, BDS creates no such chilling effect whatsoever. It creates the one thing it intends to create: questioning. BDS isn’t a law or legislation–it carries no penalties in torts or crime. It doesn’t threaten livlihood. Anti-BDS Legislative Acts do by codification. Moreover the “chill” or suppression against criticism of Israel policy (policy, not existentialism) can be felt by students through administrative lobbying and signalling. At Chicago’s Booth School of Business, a public affairs media campaign by Administration against BDS included publishing a special edition magazine cover with an image of the Star of David in gold, melting and on fire, sinking into a black globe. It was displayed by the hundreds in prominent public areas and classroom stands in literally every corner of Booth and in student mailboxes and distributed and displayed by the thousands including on line. The accompanying article included in the edition was professionally solicited and paid for with tuition dollars,and compared BDS protestors to Nazi genocidal criminals and a several page exposé by hired and academic writers included charts, graphs and images from WW2 comparing BDS to a holocaust campaign. The Editor is a tenured Chicago professor and Zionism advocate. What effect would one expect this public relations act to have on students beholden to the University for diplomas, grades, recommendations, or scholarships? This isn’t just a form of free speech intimidation, but explicit ideological conditioning. It violates not only the principles of the governing bodies of the academy but is in exact opposition to contractual pedagogy and professional standards of care. This is an example of emotion and ideology blocking rational thought, but with no intervention by university governance. One other brief example underscores the administrative bias reinforcing A-BDS activism: Chicago’s president Zimmer recently participated in a midnight candle vigil for the Pittsburgh synagogue victim report. He included the campus Hillel and Chabad members with cameras and follow up reports distributed on campus. He invoked Nazism, supremacy, holocausts and terror. This is certainly his right. However it is interesting to note that a nearly simultaneous campus violence involving over a dozen students beaten on campus by gangs, several hospitalized and pools of photographed blood on the sidewalk in front of a dormatory, brought no similar vigil, speech or respect. No public administrative response. How does this signal priority, ethno religious solidarity and even favoritism, to students and professors? Thank you and regards.