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ACLU launches first major challenge of anti-BDS legislation

The lawsuit offers the most stark example yet of how anti-BDS legislation threatens Americans’ First Amendment rights.

Palestine solidarity protesters supporting the BDS movement, 2010. (Photo by Stephanie Law/CC, cropped)

Palestine solidarity protesters supporting the BDS movement, 2010. (Photo by Stephanie Law/CC, cropped)

The American Civil Liberties Union announced Wednesday that it had filed suit on behalf of a Kansas public school educator who was asked to disavow a boycott of Israel as a condition for payment. The case comes amid growing concerns that recent state-level legislation across the United States is chilling free speech among proponents of the Boycott, Divestment, and Sanctions movement.

The Kansas law, which came into effect on July 1 of this year, directs the state to “require written certification from all individuals and companies with which it enters into contracts” that they are “not engaged in a boycott of Israel.”

“The First Amendment prohibits the government from using its financial leverage to impose an ideological litmus test,” said ACLU attorney Brian Hauss. “This law is an unconstitutional attempt by the government to silence one side of a public debate by coercing people not to express their beliefs, including through participation in a political boycott.”

A member of the Mennonite Church, Esther Koontz “decided not to buy consumer products made by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories,” the ACLU said. Her decision is in line with the church’s July 2017 resolution “to avoid economic support for the military occupation of Palestinian territories.”

The resolution, which also called on Mennonites “to examine the legacy of anti-Semitism in their own history and life,” followed earlier successful divestment motions by the Presbyterian Church USA, the United Church of Christ, and the United Methodist Church.

“You don’t need to share my beliefs or agree with my decisions to understand that this law violates my free speech rights,” Koontz said. “The state should not be telling people what causes they can or can’t support.”

A Palestinian boycott activist canvasses in the Ramallah open market, explaining the boycott of Israeli goods to Palestinian merchants, March 17, 2015. (Activestills.org)

A Palestinian boycott activist canvasses in the Ramallah open market, explaining the boycott of Israeli goods to Palestinian merchants, March 17, 2015. (Activestills.org)

A nine-year veteran of Wichita public schools, Koontz, a math teacher, now develops school curricula and trains teachers. She had been asked to sign the anti-boycott certification as part of her engagement with the Kansas Department of Education’s Math and Science Partnerships program.

The ACLU complaint asks the court to strike down the state law and bar the Kansas Department of Education from requiring the anti-boycott certification. Legal experts cite as precedent a 1982 Supreme Court decision that reversed a hefty financial judgement against the NAACP for its seven-year boycott of white merchants in Claiborne County, Mississippi. Writing on behalf of the court in that case, Associate Justice John Paul Stevens affirmed “the right of individuals to combine with other persons in pursuit of a common goal by lawful means,” calling that right one of “the foundations of our society.”

According to Chicago-based Palestine Legal, 21 U.S. states have enacted anti-BDS laws. Of these, the Kansas law appears to be the most egregious for its requirement that individuals and companies certify their stance on BDS.

Although other states’ anti-BDS laws vary in their severity, most fall into one or more of three categories, according to Palestine Legal. Some, like those introduced in New York, call for blacklists of individuals, organizations, and companies engaged in boycott. Others prohibit states from entering into contracts with these entities. And still others require state pension funds to divest from “companies that boycott Israel,” including, in some cases, “territories controlled by Israel.”

The state-level campaign to silence BDS activists is part of a nationwide push, backed by groups like StandWithUs and the Emergency Committee for Israel, to combat growing support for the BDS movement — or activists’ right to advocate for it. The drive is supported, in part, by the Israeli government, which, among other measures, has committed millions of dollars to marketing products targeted by the boycott, including those produced on illegal settlements in the West Bank.

British rock legend Roger Waters speaks to students at the Sam Spiegel Film and Television School, Jerusalem, June 1, 2009. (Lior Mizrahi/Flash90)

British rock legend Roger Waters speaks to students at the Sam Spiegel Film and Television School, Jerusalem, June 1, 2009. (Lior Mizrahi/Flash90)

Despite these counter-measures, the BDS movement, which grew out of a 2005 call from Palestinian civil society organizations, has continued to gain steam. The LA Times editorial board last year called boycotts of Israel “a protected form of free speech,” and Pink Floyd frontman Roger Waters last month penned an op-ed for the New York Times voicing his opposition to a draft federal bill that would punish BDS supporters with up to 20 years in prison and $1 million in fines.

The ACLU and other groups have also been at the front lines of combating the federal bill, known as the “Israel Anti-Boycott Act.” Although its proponents have argued that it simply “updates” a 1979 law that prohibited participation in the so-called Arab boycott, Palestinian activists and their supporters have successfully framed the legislation as a threat to free speech. (The US Campaign for Palestinian Rights, for example, offers talking points and further links here.)

That’s been enough to turn key Congressional votes against the bill, including that of Democratic Senator Kirsten Gillibrand of New York, who withdrew her support in August, citing civil liberties concerns. Still, Gillibrand and others have not ruled out a vote in favor of the bill. Instead, the New York Democrat called on lawmakers to revise the legislation so that it “does not apply to individuals.”

Given its scope, the ACLU’s bid on behalf of Koontz may well resonate beyond the courtroom, giving policymakers a glimpse into the toll anti-BDS legislation can take on ordinary citizens’ lives. Although today’s suit specifically targets a Kansas law, its emphasis on one educator’s free-speech rights seems likely to further expose the gap between Americans’ growing support for Palestinian freedom and their politicians’ inability to recognize it.

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    1. JeffB

      I’m curious to see the mechanism by which she is contracting. I would think that Esther Koontz LLC not Esther Koontz should be the one contracting with Kansas. Esther Koontz LLC doesn’t belong to a church and doesn’t buy products. All it does is pays Esther Koontz and filing fees. That would eliminate the problem. Otherwise Kansas is screwing up for a host of reasons in allowing her to directly contract that have little to do with BDS. This is just one example among hundreds. What makes this weird potentially is she is directly contracting with the state rather than indirectly contracting with the state. If so Kansas should just indicate it intends to change its contracting procedure to something sensible and duck the first amendment issues entirely.

      If not and then this becomes to chance to deal with Burwell v. Hobby Lobby Stores (the case where the Supreme Court held a corporation can have religious opinions on birth control and is entitled to religious protection against regulation). If the court finds that Esther Koontz LLC is a Mennonite we can just throw away a ton of regulations that would be illegal to apply to persons that apply to corporations and businesses. Essentially the whole Civil Rights Act of 1964 is now illegal. On this one I’d say the American left should be careful what they wish for because they may just get it.

      Reply to Comment
      • Bruce Gould

        @JeffB: If you use google news you will find a number of articles covering this, and not one of them mentions the idea that Esther Koontz is “contracting” under Esther Koontz LLC. There is no factual basis for the idea that she is acting as anything other than as an individual, even though she happens to be a member of the Mennonite Church.

        Reply to Comment
        • JeffB

          @Bruce

          I agree the news coverage so far is lousy, it is entirely based on the ACLU’s press release. It is covering one side of the case and not the other. From the news I have no idea what Kansas’ defense is going to be. I think that’s a problem in discussing the case. So I’m opening up the conversation on what I think is the most likely defense.

          I have contracted with state agencies, and they are usually quite careful not to allow what the ACLU is claiming occurred to occur. I’ve never done business with Kansas directly. So it is possible that Kansas or this agency within Kansas was so f*ing stupid that they 1099 an individual. But I think it is unlikely. USA law has made this sort of arrangement so legally dangerous that most people, governments, corporation simply won’t do this sort of naked contracting at all. Physicians are the only Americans I know of for which naked contracting like this is still common, and that’s because there is a fairly high bar to be a medical group in most states so the headache is often worth it.

          I think what’s far more likely is Esther Koontz misunderstood the document she was being asked to sign. She doesn’t understand that technically she was being asked as controlling management to sign a document about the behavior of Esther Koontz LLC not being asked about the activities of Esther Koontz. Standing strikes me as an obvious place of attack for the defense. Why argue complex first amendment issues when simple standing issues are likely available?

          I agree there are no news stories covering the defense at all. But I’m sticking with my opinion. So in my opinion, and not based on news, the most likely outcome is that this case gets dismissed on standing and the first amendment stuff never gets argued. This is what Americans mean by “dismissed on a technicality”. That is a fairly common outcome in torts and even some criminal cases. The second most likely case is that Kansas or this agency agrees her religious liberty may have been violated but agrees to rectify via. changing their contracting procedures. And then they also avoid a complex first amendment battle and at worst owe what she would have made for teaching the class. I think the 1st amendment issues never get argued. That’s not good for the ACLU’s fundraising which is why they aren’t talking about it.

          Now if we assume that doesn’t happen. The first amendment stuff regulating a discriminatory movement is not all that interesting. Blacks and Catholics before them litigating that stuff generations. The courts are not going to decide blanketly that municipal and state governments are free to bypass equal protection clauses by hiring contractors that don’t agree with those clauses and explicitly refuse to uphold them. Esther Koontz is suing for the right to engage in discrimination on behalf of Kansas based on ethnic origin. BDS is not going to get the blanket win the ACLU would like. The best they can hope for is that some of the law needs to be amended to sharpen the wording or the regulatory framework around it needs to change.

          The most interesting outcome for this case is if there is an Ester Koontz LLC but the case isn’t dismissed on standing. I think that’s unlikely but Burwell v. Hobby Lobby Stores did open the door to arguing that Ester Koontz LLC can be a Mennonite. Besides the complexity of this it creates a real conflict of interest for the ACLU. I would think strategically they then want to lose the case not win the case at that point. Because if Ester Koontz LLC can be a Mennonite a huge chunk of USA civil rights law, that the ACLU has spent decades working for just disappeared. Individuals have far more protection than corporations. Generalizing Hobby Lobby to all corporations would allow discrimination of all sorts.

          And I think it goes beyond merely civil rights. As I think about it for any company in the SP500 the cost of creating a church is not very high. Coca-Cola, General Electric, Apple are all going to create The Church of Coca-Cola, The Church of Coca-Cola General Electric, The Church of Coca-Cola Apple respectively and have their companies “join” these churches as members. All sorts of regulations that violate their religious liberties are then going to have to pass the compelling state interest test for regulations that contradict the doctrines of their churches. Burwell v. Hobby Lobby Stores as even the Supreme Court justices noted opens a crack in the dam of the entire USA legal framework.

          As a one off case it was it did limited damage. As a precedent however…. I don’t think the court will want to go there. I don’t think BDSers are really thinking through what they are asking for in this case.

          Reply to Comment
          • Ben

            You really are something else, JeffB.

            “That would eliminate the problem…. The first amendment stuff regulating a discriminatory movement is not all that interesting.”

            That would eliminate the problem?! Not that interesting?!

            Then, here you are, true to form, trying to weasel out of the very obvious first amendment issue by appeal to cold, arcane, narrow obfuscations about contract law.

            “Esther Koontz is suing for the right to engage in discrimination on behalf of Kansas based on ethnic origin.”

            This is a total fabrication, a turning of the truth inside out. A total, weaselly twisting of the facts and the letter and the spirit of what Koontz is doing. This what you are doing is egregious, blatant anti-Semitizing. Really, you are shameless.

            Reply to Comment
          • JeffB

            @Ben
            “Esther Koontz is suing for the right to engage in discrimination on behalf of Kansas based on ethnic origin.”

            This is a total fabrication, a turning of the truth inside out. A total, weaselly twisting of the facts and the letter and the spirit of what Koontz is doing. This what you are doing is egregious, blatant anti-Semitizing. Really, you are shameless.

            You and I fundamentally disagree about applying the law equally on many topics. You want a law where people Ben doesn’t like get convicted and people you do like get acquitted. Where name calling regardless of accuracy carries the day. I want clear definitions, rigorous structures and blind justice. Where the laws apply equally to all.

            I think you fail to see how by changing the nouns and keeping the structure intact what she’s arguing for could be abused. Assume gets a gets $55b allotment from the Federal Government to build a new highway. The governor, Sam Brownback (who btw as an aside supports forced deportation of the West Bank Palestinians to Jordan and complete annexation as an official position of Kansas), sets up bidding rules which favor a particular contractor for the whole thing. So it goes to his buddy Ed Koontz. Now there are no standards applied to state contractors anymore under Ben’s new rule that state contractors can boycott. Ed belongs to Trump & Brownback church. So as general contractor he boycotts every sub contractor not affiliated with Brownback or Trump on ethical religious grounds. Those contractors don’t do a great job but the terms of hire for Ed Koontz had generous penalty provisions so he pays a few billion in penalties and moves on.

            Or let’s say Kansas picks Sandra Koontz. Sandra also believes in national origin discrimination. She wants to make sure all the workcrews have no Mexicans on them. Nation origin discrimination is no big deal anymore for contractors.

            Or let’s make it even worse. Kansas City decides to outsource their policing to a contract agency run by Michael Koontz. And that agency is openly discriminatory towards blacks. There are a lot of police involved shootings but they do follow the race based procedures that Kansas agreed to when they hired Michael Koontz.

            You allow state contractors to boycott, you undermine fair bidding rules, you under civil rights protection, you undermine all sets of equal protection. But that doesn’t matter because after all what’s really important is that you get to call people names cheer for who you consider the good guys without any thinking about what’s really being asked.

            Reply to Comment
          • john

            the difference between a person and a corporation seems to elude you, as does the difference between an individual and their government.

            Reply to Comment
          • JeffB

            @John

            No not at all. I’m not a fan of Burwell v. Hobby Lobby for precisely that reason. I’m also not a fan of person’s directly contracting (same as the IRS) for that reason. If you assume the person is contracting with Kansas then Kansas can just redress the issues in the BDS case by changing their contracting procedure to what’s normal (no direct contracting). So you end up having to have the corporation, and then we are talking Esther Koontz LLC not Esther Koontz. The ACLU is going to have to prove that Esther Koontz LLC can boycott. Esther Koontz LLC is a corporation.

            Reply to Comment
          • Ben

            @JeffB

            This is terribly confused and literally off topic. We are talking about a right to not have one’s constitutionally protected free speech right infringed. The state is here requiring a person to give up the right to free speech in order to be paid by the state for her work. It could not be clearer. And to ask an American to do that is outrageous. (And indicative of the sick intrusion of special privileges for Israel that no other nation gets, privileges that infringe on the most fundamental rights of Americans, that bid to warp the very fabric of the American democracy.) You get simple things hopelessly muddled. It’s a literal veering off topic in this case.

            You insinuate, among other things, that I am against equal protection of the laws. A bizarre assertion. Where does it come from? The whole “you want…I want” tirade of yours above comes out of thin air, out of nowhere, seems bizarrely off topic and just false. Excuse me but what on earth are you talking about? You make no sense. The right in question here is the right to free speech by supporting a boycott of businesses (in another part of the world, as if that should even matter). It has nothing to do with unfairly boycotting contractors one is competing with in some kind of weird, orchestrated bidding scheme; or discriminating against Mexicans. What?? If you think you have even begun to make a clear point or a coherent point, you have not. In fact, you give the overwhelming impression that either you can’t make a clear point or you don’t want to make a clear point, because your true aim is to obfuscate.

            On and on….“changing the nouns and keeping the structure intact” – what does it mean? What are you talking about? Please follow basic rules of English composition. I have no idea what you are talking about. Seriously. “Ben’s new rule that state contractors can boycott.” What? The “new rule” is not Ben’s, it’s not new, and it’s called the First Amendment. Been around since 1791. What, seriously, are you talking about? What you write is an incoherent mess. You have gone completely off topic.

            And let us note the glaring irony, JeffB: You, who want to subject the Palestinians to 100 years more occupation until they knuckle under to becoming more Jewish, or something like that, you, who support the abject, glaring, ethnic-based discrimination of the occupation, lecture me on “discrimination on behalf of ethnic origin.” You just can’t be serious, JeffB.

            (And btw I don’t give a f— what Sam Brownback of Kansas says he thinks about what brutal, racist fascist thing should be done to other people halfway around the globe. And if I hear that a politician in a country in the Middle East thinks the people of Kansas should undergo forced deportation to Nebraska and Nebraska should annex Kansas, I don’t give a f— what he says or thinks either.)

            Reply to Comment
          • Bruce Gould

            “I agree the news coverage so far is lousy.”

            That’s not what I said.

            Reply to Comment
    2. Bruce Gould

      From the ACLU itself: https://www.aclu.org/blog/free-speech/right-boycott-under-threat

      In a landmark decision from 1982, the Supreme Court ruled that an NAACP boycott of white-owned businesses in Mississippi, to protest segregation and racial injustice, was a protected form of free association and free expression. As the court recognized, political boycotts empower individuals to collectively express their dissatisfaction with the status quo and advocate for political, social, and economic change. These are precisely the freedoms the Constitution is meant to protect….

      Reply to Comment
      • JeffB

        @Bruce

        I agree that’s what the ACLU is saying. is sounds like the arguments Palestine Legal has been making. I don’t have a theory why the ACLU is saying that. The ACLU knows better. They’ve lost boycott cases of this type and won boycott cases against defendants of this type. For example they attacked some White Citizens Councils that organized boycotts of businesses that utilized black business as vendors. Essentially the White Citizen Council made the same argument the BDSers did about a right to uphold community values through a voluntary boycott. They lost and the ACLU won on civil rights grounds.

        There have even been boycott cases that went the other way against religious groups. Andrew Yoder v. Helmuth District Old Order Amish a boycott for the purpose of religious coercion was found to violate the state’s interest in ensuring civil rights. There have been cases recently: Yale University 2006 lost a boycott case against the US Army recruiters. An ethical boycott that was found to violate a compelling state interest. Boycott case law is very mixed.

        I don’t know why the ACLU press release is saying that. The ACLU has been getting increasingly partisan over the years, same thing that happened to Amnesty International. Same thing that’s happened in the reverse direction to the NRA and AIPAC. It might just be partisan identification.

        Reply to Comment
    3. I’m old enough to remember the McCarthy era. Joe, not Eugene. Well, I remember him too! In fact, when I graduated from high school ( in 1961) I was asked to sign something saying I wasn’t a communist.

      Reply to Comment
    4. JeffB

      @Ben

      The state is here requiring a person to give up the right to free speech in order to be paid by the state for her work.

      That is absolutely not what is happening. W2 employees are not asked to sign this document

      We are talking about a right to not have one’s constitutionally protected free speech right infringed.

      No we aren’t. Kansas doesn’t claim to have the right to regulate political speech. No one claims that Esther Koontz wasn’t allowed to say whatever she wants. At worst (and this is still doubtful) Kansas was regulating her business practices not her speech.

      And indicative of the sick intrusion of special privileges for Israel that no other nation gets, privileges that infringe on the most fundamental rights of Americans, that bid to warp the very fabric of the American democracy.

      These sorts of agreements are common. Heck I’ve had to sign them as a subcontractor guaranteeing things like proper bonding of employees, that I check medical certifications, or that I am in compliance with the ADA. When I was bound by one of those agreements I couldn’t refuse to hire the deaf/blind/physically disabled just as she can’t refuse to hire Israelis.

      You insinuate, among other things, that I am against equal protection of the laws. A bizarre assertion. Where does it come from?

      Read the argument again. And stop emoting. I outlined very clearly how the ACLU’s argument could easily be used to undermine equal protection.

      The right in question here is the right to free speech by supporting a boycott of businesses (in another part of the world, as if that should even matter).

      Supporting a boycott of a business is not in question. Engaging in a boycott is the point in question.

      It has nothing to do with unfairly boycotting contractors one is competing with in some kind of weird, orchestrated bidding scheme; or discriminating against Mexicans.

      It is. If state contractors are free to engage in national origin discrimination then states can easily do those things. The same structures you are applauding work just as well to accomplish those goals.

      On and on….“changing the nouns and keeping the structure intact” – what does it mean? What are you talking about? Please follow basic rules of English composition. I have no idea what you are talking about. Seriously. “Ben’s new rule that state contractors can boycott.” What? The “new rule” is not Ben’s, it’s not new, and it’s called the First Amendment.

      The first amendment does not give contracting companies a right to boycott. The first amendment may gives individuals the right to engage in political actions. You are greatly expanding the first amendment protection. And you are expanding it in a way that undermines huge chunks of USA law. You just happen to like this particular case without thinking about how it could be applied more broadly were your argument accepted.

      And let us note the glaring irony, JeffB: You, who want to subject the Palestinians to 100 years more occupation until they knuckle under to becoming more Jewish, or something like that, you, who support the abject, glaring, ethnic-based discrimination of the occupation, lecture me on “discrimination on behalf of ethnic origin.”

      The USA has a very effective process of assimilation. I want Israel to adopt it. I don’t support discrimination on the basis of ethnic origin. I want the Palestinian’s descendents to become full Israelis in every sense. That is precisely what the USA does with its immigrants. The hollowing out of culture and absorption is what the USA does. It is you not I that objects to Israel adopting USA policy.

      Reply to Comment
    5. JeffB

      For lurkers (especially Israelis) and for Ben I’m going to explain this issue a bit.

      Under American law when you work for someone a W2 needs to be filled out. That’s an employment agreement. It can be long term or temporary. The word “contractor” can be used, somewhat inaccurately, to mean a W2 temporary employee. if that’s the case Kansas was using a document for a W2 they only should have been using for a 1099. No question its illegal to ask a W2 about their outside of work affiliations. If they did that its a procedural error not a constitutional issue. There are hundreds of documents having nothing to do with Israel or BDS that Kansas might ask a business to sign that you can’t legally ask a temporary W2 employee to sign. If that’s the case there is nothing interesting to talk about in terms of first amendment.

      Business in the USA can fulfill a contract they can’t be employed. They can provide services but they can’t do work. Now in USA law there are a series of steps going from an individual to a business:

      sole proprietorship — business name with no legal structure. Owner takes action on behalf of the business. This is frequently referred to as a DBA (Doing Business As)

      partnership — business owned by multiple people. Individuals take action on behalf of the business (still a DBA)

      Limited Liability corporation — The business is a legal entity and can have business assets. But these assets technically always belong fully to the owners. It must pass through profits to owners to pay taxes. This is the most common structure for “contracting” in the legal sense. What I was talking about with Ester Koontz LLC.

      S-Corp — This is a legal person which is still fully owned by a group of Americans. It can do almost everything a C-corp can but it has a few restrictions on ownership and activity. This type of entity can engage in pass through to owners. Most subsidiary businesses of a C-Corp use this structure. Think of it as a legal person who is a slave.

      C-Corp — This is a fully independent legal person. People can own shares in it and exercise control through a board of directors. But there is no legal pass through at all. Owners do not have the right to act on behalf of the company, the company must appoint people to act on its behalf (these can be owners but it is not automatic). All financial assets must be fully separate there can be no intermingling with owner’s assets. This legal person must pay all their own taxes annually.

      There are constitutional issues about to what extent C-Corps and S-Corps have legal rights. Its highly doubtful that this teacher would have setup a C-Corp or S-Corp for herself. Generally a state will not contract below the LLC level. Many agencies won’t contract below the S-Corp level.

      So the most likely situation is that Ester Koontz has an LLC but didn’t understand the paperwork was directed at her LLC and not her person. Most Americans do not understand the concept of legal persons especially with the LLCs which are designed for ambiguity.

      Reply to Comment
    6. JeffB

      I’m going to amend my comments above. There is another scenario that also makes sense. Ester Koontz was being hired by a company that contracts with Kansas not by Kansas as a subcontractor. If this was a 1099 or if they used similar paperwork for 1099 and W2 temp then I could see this as a mistake a contracting vendor for Kansas could make. Esther thinks she’s being hired by Kansas because its a state program and doesn’t understand she’s being wrapped. Being wrapped is something a teacher could easily miss or not fully understand.

      This situation is consistent with her description (she’s wrong but not lying). Still doesn’t explain the ACLU fully but I imagine it is possible that the ACLU’s legal strategy is going to be to show how a regulation like this in practice ends up having 1st amendment implications through sloppy application, even if in theory with proper application it wouldn’t. Essentially demonstrate the chilling effect that Palestine Legal has talked about.

      Anyway that’s it for the amendment.

      Reply to Comment
      • Harry Abrams

        Thank you Jeff B. The other small issue that Koonz, ACLU and the other Israel haters will be facing if this goes anywhere, is the State’s reasoning for the legislation. And #1 fact is that BDS is fraudulent, pro-terror, racist, and sets out to cause harm to a strategic ally of the United States for the crime of continuing to exist. So we’re back to aplace we’ve all seen before, which is the ACLU defending the KKK, white supremacists and in this case radical Islamic Jihadists who partner in harm against the USA, and indeed support groups that have murdered US citizens in Israel. It’s pretty much precisely because the BDS Movement misrepresents itself and sets out to deny others their basic human rights, that this legislation was enacted in the first place. So anywhere this goes forward it will be dragging Koonz and her confederates through the mud and exposing BDS as bullshit. Works for me.

        Reply to Comment
        • JeffB

          @Harry

          Remember that it is perfectly legal to belong to a fraudulent, pro-terror, racist organization. To win on those grounds we would be talking compelling state interest argument. Which Kansas could potentially make. Anti-Zionism has cleared Jews out of about 40 countries and they could argue that BDS is part of strategy to do that in Kansas and the state thus has a compelling interest…. If they win that argument it invalidates the 1st amendment claim. But the burden is entirely on Kansas in that case, they are going to have to show actual ongoing harms in Kansas or a reasonable probability of highly likely substantial harms. I don’t think Kansas is going to be able to. So I understand the moral outrage with BDS, I don’t think Kansas beats the ACLU if they go down that path.

          It is legal to be in the 2nd (1920s) or 3rd (1950s) klan. It isn’t legal to be in the 1st klan (1860s). It is legal to like terrorists and legal to offer them moral support. It isn’t legal to fund them. The bar is really really high if Kansas fights on the “BDS is evil” front. I think Kansas is far better off arguing that BDS intends to engage in ethnic origin discrimination at a commercial level. Stay away from 1st amendment claims entirely. Deny this has anything to do with a distaste for the reasons behind the policies of BDS and keep it strictly on matters of the BDS policies themselves.

          As an aside since I posted I saw the document Ester Koontz probably had to sign. Assuming she was W2 to Kansas, that document was IMHO illegal. Kansas’ best bet if that was the document is to agree this was a procedural error.

          Reply to Comment
        • Ben

          @Harry:
          “…fraudulent, pro-terror, racist, and sets out to cause harm to a strategic ally of the United States for the crime of continuing to exist… KKK, white supremacists, radical Islamic Jihadists…”

          Two things:

          1. I never saw your concern about the actual white supremacists in Charlottesville chanting pro-Trump, anti-Semitic slogans. So spare me your sudden and appalling lumping of Esther Koontz with the KKK.

          2. Unlike you, I (and the ACLU) will defend your right to say what you say and your right to organize and support or engage in a boycott on behalf of it—go ahead Harry, what’s stopping you?—even as I think what you say is mere propaganda, is nonsense. (It is statements such as yours that remind us that the chief purpose of an education is to equip oneself to know when a man is talking rot.) If people like Esther Koontz are so very misguided and so obviously wrong-headed then what are you afraid of? It seems you think your position is so shaky that it can’t stand the light of day and the hurly burly of public debate; and that, East German style, Esther Koontz’s right to free speech must be outlawed, silenced. Now why is that?

          Reply to Comment
      • Ben

        JeffB, you’ve won. By the criteria of successful distraction, of fostering a pseudo-debate about a pseudo-issue, you’ve already won. But you’ve lost any real argument.

        All the talk about companies, LLCs, S-corp, C-corp, 1099. W2, etc is folderol. This already extends your pontifications too much relevance, but the Supreme Court has ruled that corporations, with respect to protected speech, are persons. A Limited Liability Corporation is no different. The hay you are trying to make out of this is astonishing. But folderol it is. Nothing in your arcane ruminations speaks to the basic and actually rather easily grasped issue. As Samer Badawi writes:

        » The Kansas law, which came into effect on July 1 of this year, directs the state to “require written certification from all individuals and companies with which it enters into contracts” that they are “not engaged in a boycott of Israel.”
        “The First Amendment prohibits the government from using its financial leverage to impose an ideological litmus test,” said ACLU attorney Brian Hauss. “This law is an unconstitutional attempt by the government to silence one side of a public debate by coercing people not to express their beliefs, including through participation in a political boycott.” «

        Nothing in what you say speaks to the actual issue, which the ACLU and Esther Koontz make crystal clear:

        » A member of the Mennonite Church, Esther Koontz “decided not to buy consumer products made by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories,” the ACLU said. Her decision is in line with the church’s July 2017 resolution “to avoid economic support for the military occupation of Palestinian territories.”
        The resolution, which also called on Mennonites “to examine the legacy of anti-Semitism in their own history and life,” followed earlier successful divestment motions by the Presbyterian Church USA, the United Church of Christ, and the United Methodist Church.
        “You don’t need to share my beliefs or agree with my decisions to understand that this law violates my free speech rights,” Koontz said. “The state should not be telling people what causes they can or can’t support.” «

        Kansas was NOT “regulating her business practices not her speech.” To say that is to very strangely avoid the very issue at hand. It is inane to assert that regulating her business practices on the basis of her speech is not regulating her speech.

        Reply to Comment
      • Ben

        @JeffB (Part 2):

        “just as she can’t refuse to hire Israelis.”

        A bizarre non-issue. Esther Koontz is not hiring or not hiring Israelis or refusing to hire Israelis. It is totally beside the point.

        “I outlined very clearly how the ACLU’s argument could easily be used to undermine equal protection.”

        You most assuredly did not. We have very different standards for clarity. And if a sound argument for constitutionally protected free speech is “used” to undermine equal protection of the laws then someone who tries to “use” that argument that way needs to go back to Intro to Constitutional Law 101 for 9th graders.

        “Supporting a boycott of a business is not in question. Engaging in a boycott is the point in question.”

        We get to the nub of your confusions and it is surprisingly halt and lame. (All that fuss only to arrive at this elementary issue?) Supporting a boycott (an exercise in free speech) and engaging in a boycott (an exercise in free speech) are intrinsically the same thing

        Reply to Comment
        • JeffB

          @Ben

          “just as she can’t refuse to hire Israelis.”

          A bizarre non-issue. Esther Koontz is not hiring or not hiring Israelis or refusing to hire Israelis.

          It sounds to me like she’s refusing to hire them. She’s openly advocating for national origin discrimination.

          “Supporting a boycott of a business is not in question. Engaging in a boycott is the point in question.”

          We get to the nub of your confusions and it is surprisingly halt and lame. (All that fuss only to arrive at this elementary issue?) Supporting a boycott (an exercise in free speech) and engaging in a boycott (an exercise in free speech) are intrinsically the same thing

          You are absolutely 100% wrong here. The point of the 1st amendment is to allow people to advocate for policies that are not current law. Mitt Romney is free to support changes to the tax code. He is not free to act as if those changes were in effect. Ward Churchill is even free to advocate for more Al Qaeda bombings in the United States, he is not legally entitled to assist Al Qaeda. The right to advocate for a policy is totally distinct from the right to engage in it.

          Reply to Comment
          • Ben

            JeffB, how on earth is she “arguing for national origin discrimination” by supporting a boycott of Israel because of her beliefs about its occupation and apartheid practices? Were the boycotters of South African apartheid arguing for discrimination against people from England or Holland or South Africa? Hello? You can’t just make outlandish claims, you have to prove them. I don’t have to prove outlandish claims are false. You have to prove they are true.

            “The right to advocate for a policy is totally distinct from the right to engage in it.”

            Again, you have something very basic very confused. Supporting a consumer boycott IS engaging in it. Engaging in a consumer boycott IS supporting it. If an American citizen chooses not to buy Sabra brand hummus at a local US grocery store that citizen is engaging in their right to free expression about matters of politics just as much as the person who takes out a newspaper ad urging people to not buy Sabra brand hummus. Mitt Romney violating tax law is a specious comparison. The tax law in question is presumably constitutional. It is NOT constitutional to have a law that deprives American citizens of the right to free speech absent a compelling “yelling fire in a crowded movie theater” exception. The whole point here is that Esther Koontz is challenging a Kansas law that she argues is unconstitutional! That is the whole point of her suit! JeffB you are in effect arguing that Esther Koontz cannot challenge an existing law as unconstitutional because it is an existing law!

            Reply to Comment
          • JeffB

            @Ben

            JeffB, how on earth is she “arguing for national origin discrimination” by supporting a boycott of Israel because of her beliefs about its occupation and apartheid practices?

            Reasons for engaging in national origin discrimination are irrelevant.

            <b. Were the boycotters of South African apartheid arguing for discrimination against people from England or Holland or South Africa?

            Yes. They were also engaging in national origin discrimination. That discrimination was specifically allowed because of the 1986 Comprehensive Anti-Apartheid Act. Otherwise it would have been illegal.

            “The right to advocate for a policy is totally distinct from the right to engage in it.” Again, you have something very basic very confused. Supporting a consumer boycott IS engaging in it.

            That is simply false. Many American companies in the early 1960s openly supported the Arab boycott of Israel but did not engage in it because it was illegal. Many Americans in the North supported the White Citizen Council boycotts but did not engage in them because they couldn’t. Heck most BDSers who would like to boycott Israeli good can’t meaningfully do so since Israeli primarily doesn’t export whole consumer goods.
            Most particularly with respect to the Teamsters the courts have frequently decided that while they have the right to support the calls for a boycott under the 1st amendment, they do not have right to participate in them.
            Mitt Romney violating tax law is a specious comparison. The tax law in question is presumably constitutional.

            Irrelevant. Mitt Romney is not entitled to violate unconstitutional tax code either. He is entitled to challenge it in court.

            The whole point here is that Esther Koontz is challenging a Kansas law that she argues is unconstitutional! That is the whole point of her suit! JeffB you are in effect arguing that Esther Koontz cannot challenge an existing law as unconstitutional because it is an existing law!

            What I have asserted though is she is not free to own a business contracting with Kansas while intending to violate Kansas contracting law. Esther Koontz is following the law perfectly. She refused to sign a document which in her opinion required an attestation of status (I’m not sure she had to, but she choose to). She is challenging the law in court. She’s doing exactly in that respect what she should be doing. I said she can’t violate existing law because she believes it to be unconstitutional. She is certainly within her rights to challenge It. And her behavior indicates she agrees with me.

            Where we might disagree was her status. I continue to believe she likely made an error in her understanding of the law.

            Reply to Comment
      • Ben

        @JeffB (Part 3):

        “If state contractors are free to engage in national origin discrimination”

        A bizarre non-issue. There is no “national origin discrimination” occurring. The burden of proof is on you to prove such an extraordinary claim.

        “The first amendment does not give contracting companies a right to boycott.”

        Pray tell, what is the difference, in terms of constitutionally protected free speech, between an individual and a “contracting company,” or any company? And how would the state of Kansas, in prohibiting the companies it contracts with from engaging in speech supporting one side of a debate but not the other, not be engaging in an unconstitutional suppression of free speech? You really want to argue THAT before the SCOTUS? What compelling state interest here would override the threat to First Amendment protections? (Please, plain, straightforward English in reply–this issue is NOT legally arcane.) (And the ACLU’s lawyers are NOT idiots. You effectively treat the lawyers of the ACLU as idiots who haven’t stopped to consider your argument and don’t know they don’t have a case.)

        Reply to Comment
    7. Tom Eliot

      A win by ACLU will be a win for bigots. Anti-gay, anti-minority, anti-women will be able to join the Bds anti-jew movement in claiming first amendment rights to discriminate. That will be a sad day.

      Reply to Comment
      • Ben

        “first amendment rights to discriminate”

        In that fatuous non sequitur is contained all your ignorance and confusions.

        Reply to Comment
      • JeffB

        @Tom

        Exactly though it even goes beyond that. Palestine Legal’s reasoning is crazy. The right they are asserting: that any state contractor can in their contracting capacity has the full range of civil rights protections that apply to individuals in their personal political capacity is nuts. Huge chunks of civil rights laws are gone. Far bidding laws almost totally undermined. Most non corruption laws gone.

        There is simply no way that Palestine Legal / ACLU get that from the courts. BDSers are simply believing too much of their own propaganda. Kansas agrees to revise their form to make it less vague.

        Reply to Comment
    8. JeffB

      “If state contractors are free to engage in national origin discrimination”

      A bizarre non-issue. There is no “national origin discrimination” occurring. The burden of proof is on you to prove such an extraordinary claim.

      I don’t think it was occurring. Esther Koontz in refusing to sign the document told Kansas she intended to engage in it. Moreover the BDS movement most certainly does intend to engage in it so she is a supporter of it, even if she personally lacks the capacity to engage in it.

      “The first amendment does not give contracting companies a right to boycott.”
      Pray tell, what is the difference, in terms of constitutionally protected free speech, between an individual and a “contracting company,” or any company?

      Corporations are not American citizens they don’t have protected free speech at all. Corporate speech is restricted in all sorts of ways that would impermissible for individuals. For example corporations can be ordered by the SEC or a court not to speak at all on matters other than ongoing business operations. The SEC has no right to do that to me or Esther Koontz individually. Corporations have restrictions on political activity I don’t have.

      You really want to argue THAT before the SCOTUS?
      I don’t have to its been argued multiple times. The most recent I know of being Citibank arguing they just offered an opinion of various mortgage options. The court disagreed and upheld a $9b penalty based on their opinion. An individual would have had far stronger protections.

      What compelling state interest here would override the threat to First Amendment protections?
      None. Which is my answer to several on this thread who have been pushing for arguing the 1st Amendment aspects of this case.

      You effectively treat the lawyers of the ACLU as idiots who haven’t stopped to consider your argument and don’t know they don’t have a case.

      What are you doing with the lawyers for the State of Kansas who examined this law?
      As for the ACLU I’m not treating them as idiots. I’ve said repeatedly they know better. They have won cases in their history against this unlimited right to boycott you think exists.

      Reply to Comment
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