(RNS) — The Council on American-Islamic Relations filed a lawsuit Wednesday (Jan. 9) challenging Maryland Gov. Larry Hogan's executive order banning state agencies from contracting with businesses that boycott Israel.
Signed by Hogan in October 2017, the “No Boycott of Israel” order aims to combat the growing Boycott, Divestment and Sanctions movement that seeks to punish Israel for its treatment of Palestinians, which Hogan has termed "economic discrimination" against Israel.
Civil rights advocates have long lobbied against measures banning BDS boycotts, saying they violate freedom of speech.
“It is unconstitutional and dangerous, especially because it prioritizes the interests of a foreign government who is in violation of international law over Marylanders’ First Amendment rights,” said Zainab Chaudry, CAIR’s director of Maryland outreach.
The lawsuit, which names Hogan and state Attorney General Brian Frosh on behalf of plaintiff Syed Saqib Ali, is the sixth federal lawsuit of its kind. Twenty-six states currently have some form of a ban on supporting the BDS movement, including laws requiring contractors to take a personal oath not to participate in boycotts.
CAIR is also filing a First Amendment challenge to a similar law in Texas, where a Muslim woman of Palestinian descent recently lost her job of nine years after refusing to sign an anti-BDS pledge in order to work as a children’s speech pathologist in public schools.
Ali, the Maryland plaintiff, served as a member of the Maryland House of Delegates from 2007 to 2011 and is a software engineer who applied for a state contract to build a software tool that would compare life insurance policies. But Ali found that in order to apply he would first have to certify that he was not currently boycotting Israel or any Israel-occupied territories and that he would not during the term of his contract.
Ali, who has long boycotted Israel and its occupied territories, refused.
“Palestinians ... live under a brutal military occupation and until that occupation is ended, I decided I will boycott Israel,” Ali said at a news conference Wednesday in Baltimore. “It is my First Amendment right and it is guaranteed by the U.S. Constitution.”
He also accused Hogan of making an “end around” by issuing his directive after the anti-BDS legislation had been rejected several times in both houses of the Maryland Legislature. A co-founder of Freedom2Boycott in Maryland, Ali told the Baltimore Jewish Times in 2017 that the ACLU would file and win a lawsuit against the order.
Ali noted that he has also boycotted the state of North Carolina, because of laws criticized as anti-LGBT, and that he is currently boycotting businesses and properties owned by President Trump and his family. All these boycotts are protected by the First Amendment to the Constitution, he said.
“Boycott activity occupies a special place in the history of the First Amendment," CAIR senior litigation attorney Gadeir Abbas said at the news conference, "from the boycotts of British tea to the Montgomery bus boycotts to boycotts activity directed at ending South African apartheid.”
The U.S. Supreme Court has specifically upheld the constitutional right to boycotting time and time again, Abbas noted.
In 1982, the Supreme Court ruled that boycotts are a form of constitutionally protected speech in spite of any economic damage they may cause, and in 1996, it ruled that the government cannot terminate a contract to punish a contractor’s free speech.
Hogan dismissed free speech concerns when he signed the order, saying BDS boycotts “are asking people to discriminate against Israel. It’s clear. There’s no argument to the contrary that makes any sense.”
The executive order states that businesses involved in anti-Israel boycotts "pose undue risks" and contracting with them “makes the State a passive participant in private-sector commercial discrimination.”