Free Speech

Fifth Circuit Anti-BDS Lawsuit Dismissed as Moot

The Eighth Circuit lawsuit remains pending.

|The Volokh Conspiracy |

The Fifth Circuit panel held that, because Texas's law had been narrowed in a way that excluded these particular plaintiffs, the challenge should be dismissed:

This appeal touches on the Israeli-Palestinian conflict. In 2017, Texas enacted a law that forbids its governmental entities from contracting with companies who engage in economic boycotts of Israel. The plaintiffs, who support the Palestinian side of the conflict, then brought two separate suits for declaratory and injunctive relief in federal district court, alleging that requiring "No Boycott of Israel" clauses in Texas government contracts violates the First Amendment. After the two suits were consolidated, the district court held that the plaintiffs were likely to succeed on the merits of their claims that the First Amendment prohibited Texas's "No Boycott of Israel" certification requirement. The district court then preliminarily enjoined the enforcement of "No Boycott of Israel" clauses in all contracts with Texas governmental entities. Whether that ruling was correct has been the subject of wide and intense debate, as demonstrated by the fourteen amicus briefs filed in this appeal.

This opinion will not address that debate, however. Instead, we have decided that this appeal is moot because, twelve days after the district court's ruling, Texas enacted final legislation that exempts sole proprietors [and certain other businesses] from the "No Boycott of Israel" certification requirement. The plaintiffs are all sole proprietors….

For more on the lawsuits, and Prof. Michael Dorf's, Prof. Andrew Koppelman's, and my argument on why the anti-BDS laws being challenged generally don't violate the First Amendment, see here. The Eighth Circuit case was argued three months ago, and I expect that the panel will likely decide the case on the merits.

NEXT: Supreme Court Rules That Georgia Can't Copyright Its Annotated Code

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  1. Well, as long as everyone’s a consenting adult…wait, I thought you said BDSM.

    1. Not all “alternative lifestyles” enjoy tolerance or legal protection in the US.

  2. Massachusetts has — or had — something quite similar. All wishing to sell any good or service to the Commonwealth or any subdivision thereof had to sign a form certifying they had not provided any assistance to the British Army in Northern Ireland.

    That apparently was legal for reasons I never could quite understand as the British Army was part of NATO and NATO was a treaty that Congress had ratified. Maybe no lawyer dared challenge it…

    1. Interesting — do you have any pointers to the details on this?

      1. Will see what I can do.
        As the British Army pulled out in 2007, it may have been repealed, but I’ve actually held the form in my hands.

        1. According to three SCOTUS justices, one can still challenge the constitutionality of a repealed law.

      2. I can make a prediction…

        1. You do know that the State Government is shut down, don’t you?

  3. WTF I hate mootness now.

  4. If the state of Israel, as a political entity, is against one’s religion, doesn’t an anti-boycott law violate the free exercise clause?

    1. We aren’t talking about Iran or Saudi Arabia here — Israel explicitly recognizes the religious freedom of all, including both sects of Islam.

      There are — and always have been — Muslim members of Israel’s Knesset.

      1. Recognition of the government of Israel is against some Orthodox Jewish-Americans religious beliefs.

        1. Israel, like Canada, is a sovereign state with which we have diplomatic relations. The US Senate approved the relevant treaty and I don’t see how anyone’s religious beliefs have anything to do with any of this.

          1. You’re right that a citizen’s belief has nothing to do with the existence of another nation. But where is it for a state to impress upon the citizen his or her religiously symbolic interactions with said state?

            1. “But where is it for a state to impress upon the citizen his or her religiously symbolic interactions with said state?”

              I have no idea what you mean by this.

              First and foremost, the policy is a double negative — one doesn’t have to do business in Israel, only that one can not have a policy of not doing so. But above and beyond that, how does “religiously symbolic interactions” apply, whatever they may be.

              After all, I can’t have a “Christian Only” business here in the US. While I can chose to only sell Christian things, I can’t refuse to sell them to non-Christians. Likewise, one doesn’t have to be an observant Jew to purchase something from a Kosher Deli.

              Israel is a valuable US ally in a part of the world where we don’t have many friends. While the Wuhan Virus has toned down Iran’s sabre rattling, they’re quite serious about “little Satan and big Satan” — about destroying both Israel and America. This isn’t about rebuilding the Temple nor rockets being launched out of mosques — it’s about the preservation of Western Society against those who wish to destroy it.

              1. ” one doesn’t have to do business in Israel, only that one can not have a policy of not doing so.”

                That’s exactly why I believe 1A is implicated by these laws. They are discriminating based on a stated belief, not a behavior.

      2. > including both sects of Islam

        We like both kinds of music, country *and* western.

    2. For example, if some such person wanted to make an investment, they would be barred from excluding Israel bonds from his/her investment portfolio?

    3. librarian: Why would it, given Employment Division v. Smith?

      1. If I’m reading this correctly, Employment Division v. Smith found that laws of general applicability continue to apply when they un-targetedly infringe upon some aspect of someone’s religious practice and/or belief. The laws need to be generally applicable because the government has an interest in uniformly enforcing laws (especially drug laws!) without the burden of carving out exceptions for each marginal infringement.

        The anti-BDS case, on the other hand, is a narrowly tailored law, applying to one country, for one purpose. This purpose (presumably to promote a pro-Israel foreign policy stance among citizens of the state) is not even central to the state government operations. In fact, the states are supposed to be prevented from engaging in foreign policy via the federal
        supremacy
        (if I’m reading that right).
        On the other hand, these Orthodox Jews appear to deeply hold the believe that Israel should not be a government until the rebuilding of the temple (if I heard that right). This believe is singly targeted by the anti-BDS law.
        That is why I think Employment Division v Smith does not apply to this case.

        1. This purpose (presumably to promote a pro-Israel foreign policy stance among citizens of the state)

          I’d argue the opposite — that it prevents the state from having a foreign policy.

          For example, and I’m thinking of a specific company recently involved in a tragic OUI crash with a company vehicle, let’s say I have a company that paints lines on highways and puts up orange construction zone signs. And we do business in ME, NH, MA, CT, & RI — essentially the I-95 corridor. All my stuff, from paint colors to signage, meets US DOT specifications.

          There is nothing requiring me to cart all my trucks and crews over to Israel and paint lines on their roads — which they probably also want done differently (Canada does — they use a different shade of yellow paint and different words on their signs). I’m well within my rights to say I only do business within 200 miles of Boston (or those states that I my trucks are legal in) and there is no requirement for me to bid on any job I don’t want.

          I don’t have to have *any* corporate policy regarding Israel, or even be able to find it on a map, all it says is that I can’t have a corporate policy against doing business there. Not if I want to be an approved state vendor.

          1. Three more things:

            My guess is that Orthodox Jews also believe Leviticus 18:22 and that would preclude contracting at least with the Commonwealth of Taxachusetts.

            Second, see: https://www.sdo.osd.state.ma.us/WorkShop/xwrk_main.aspx No, I don’t make stuff up.

            And the company is Hi-Way Safety Systems (a “woman-owned” company) — after a wild post-Christmas party, a drunk/high employee took a company truck through a red light and killed one girl, badly injuring her mother and a second girl. Again, I don’t make things up.

          2. “I don’t have to have *any* corporate policy regarding Israel”.

            No. The law says there *must* be a corporate policy regarding Israel.

            Consider this, if the state anti-boycott policy was for North Korea, even though the federal government has sanctions on North Korea, then there is a conflict of policy between the state and federal governments.

  5. So how do you distinguish between a company that is boycotting Israel and a company that just doesn’t happen to be doing any business with Israel at the moment?

    1. How do you distinguish between a company that won’t hire Blacks and one that just doesn’t happen to have any Black applicants at the moment?

      1. Is the company just saying that they won’t hire blacks, or can it be proved that they turned away black applicants solely on the basis of their race? Governments can discriminate based on an individual’s actions, can they discriminate based on an individual’s speech or stated opinions?

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