ACLU Lawsuit on Kansas Anti-BDS Law Raises Important Questions About Free Speech Issues

October 11, 2017

J Street notes with interest the American Civil Liberties Union’s filing of a federal lawsuit challenging the constitutionality of a recently-passed Kansas law requiring persons contracting with the state to certify that they are not engaged in a boycott of Israel or its settlements in occupied Palestinian territory.

As the ACLU noted in its press release announcing the suit, the Kansas law is similar to legislation that has been passed in several other states. The law also shares elements in common with the “Israel Anti-Boycott Act” currently pending in Congress, which both J Street and the ACLU oppose as introduced.

J Street is opposed to both the Global Boycott, Divestment and Sanctions (BDS) Movement and efforts to penalize political activity that is protected by the First Amendment. We believe that in order to successfully challenge the Global BDS Movement, it is vital for the pro-Israel community to articulate a clear pro-Israel, anti-occupation platform that stresses the urgent necessity of reaching a two-state solution.  

While we are not free speech experts, we strongly believe that it is both important and appropriate for the courts to examine and resolve uncertainties and ambiguities regarding the constitutionality and impact of anti-boycott laws at both the federal and state level. Accordingly, we urge Congress to refrain from advancing any further legislation of this nature until the important legal questions raised in this case are resolved in the courts. We continue to urge lawmakers and Jewish communal leaders to engage Americans who are sympathetic to BDS in serious and open conversation and debate, rather than seeking to silence them by aggressively penalizing their activism.

Legislation like the “Israel Anti-Boycott Act,” which erases the distinction in US law and policy between Israel and the Palestinian territory it controls, only undermines the pursuit of the two-state solution and empowers extreme voices on both sides. It’s time for Congress to recognize that this is the wrong way to fight BDS – and the wrong way to safeguard Israel’s future.

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