On Wednesday, October 11, the American Civil Liberties Union (ACLU) filed a federal lawsuit challenging Kansas’s new anti-Boycott, Divestment and Sanctions (BDS) law. The law, which was passed in June 2017, prohibits the state from doing business with companies or individuals engaged in boycotting Israel. The Kansas law is the latest in a spate of anti-BDS laws across twenty-one states. These bills are nothing less than a legislative assault on free speech designed to silence criticism of Israel.
The ACLU filed the lawsuit on behalf of a teacher in Kansas, Esther Koontz, who was asked by the Kansas State Department of Education to sign a statement affirming she is not engaged in boycotting Israel. Koontz, who was hired as a state contractor, is a member of the Mennonite Church USA. In July 2017, the church voted to boycott companies that profited from Israel’s military occupation of the Palestinian territories. As a member of the church, Koontz supports the boycott. As the ACLU pointed out, the law is a clear violation of Koontz’s First Amendment rights, which forbid the imposition of “ideological litmus tests or loyalty oaths as a condition on hiring or contracting.”
This is the second high-profile action regarding BDS that the ACLU has taken this year. In August, it vociferously opposed the “Israel Anti-Boycott Act,” which was introduced in the Senate in March. Violators of the law, should it pass, would be subject to either a civil penalty of up to $250,000, or to criminal prosecution, which could result in a fine of up to $1 million dollars and twenty years in prison.
The ACLU sent letters to all U.S. senators urging them to oppose the bill. Because of this push, New York Senator Kristin Gillibrand withdrew her co-sponsorship of the bill and affirmed the right to boycott. Congress has not voted on the bill yet, but it remains in committee.
While the ACLU has brought national attention to these high-profile attacks on free speech, everyday intimidation and censorship against pro-Palestine activists is widespread, especially on college campuses. Lee Rowland, a senior ACLU staff attorney told The New York Times that he believes “the most pernicious pattern of censorship on college campuses might relate to Palestinian activists.” Around a dozen U.S. nonprofit organizations, some with large budgets and possible ties to the Israeli government, are dedicated to monitoring and silencing criticism of Israel on college campuses.
Examples of this censorship abound. At Fordham University, students were denied permission to set up a chapter of Students for Justice in Palestine. In May 2017, a campaign of harassment by pro-Israel activists caused Fresno State to cancel a search for a professor because the candidates studied the Middle East and Palestine. In September 2016, the Israeli government covertly intervened to get a course entitled “Palestine: A Settler Colonial Analysis” canceled at UC Berkeley (the course was reinstated a week later). Perhaps most famously, the University of Illinois withdrew an offer for a tenured professorship from Steven Salaita in 2014, due to his online criticism of Israel.
Supporters of Palestinian rights are, therefore, facing a two-pronged attack. On one side, legislation like the Kansas law seeks to prevent individuals from practicing their First Amendment right to boycott. On the other, pro-Israel groups are silencing criticism of Israel on college campuses. More widespread action will need to be taken to reverse this Palestine exception to free speech.