BDS Order to Be Tested in Court


A Maryland supporter of the boycott, divestment and sanctions movement (BDS) and a Muslim civil rights group have sued Maryland Gov. Larry Hogan over an executive order that denies government contracts to businesses that boycott Israel.

Former state Del. Saqib Ali and the Council on American Islamic Relations filed a lawsuit on Jan. 9 in federal court. Attorney General Brian Frosh was also named in the suit.

Ali charges that the order is a violation of his First Amendment rights.

“Palestinians are not free; they live under a brutal military occupation,” Ali said at a news conference. “And until that occupation is ended, I decided I will boycott Israel. It is my First Amendment right. It is guaranteed by the U.S. Constitution.”

Ali told WJW that in his work as a software contractor he has tried to bid on Maryland government contracts. But the state required that he, and other contractors, sign a form stating that they do not boycott Israel.

Ali said he refused to sign the form and as a result has lost out on “thousands of dollars” of potential income.

“I’m optimistic about my chances here in Maryland,” Ali said. “They tried to pass this law in other states a couple of years ago but they failed.” He is waiting for a trial date to be set.

Hogan’s office is also optimistic.

“We are confident that our executive order is completely consistent with the First Amendment and will be upheld in court,” spokeswoman Amelia Chasse told The Baltimore Sun.

Frosh’s office said it does not comment on pending litigation.

Howard Libit, executive director of the Baltimore Jewish Council, believes the order was crafted to withstand challenges such as Ali’s.

“The executive order was carefully written to make it clear it’s about business entities and prohibiting business entities that are participating in the discriminatory boycott of Israel from receiving state contracts,” he said. “It’s not about individuals having opinions or individuals speaking out, or even companies issuing press releases … it’s about them engaging in economic business practices as a business entity that discriminate against Israel.”

“Economic activity and business activity isn’t protected under the First Amendment. Speech is,” he continued. “The plaintiff in this case is mixing them up.”

The Jewish Community Relations Council of Greater Washington supports the governor’s executive order.

“The JCRC believes that Maryland’s BDS executive order does not affect one’s freedom of speech,” the agency said in a statement Friday. “It does not penalize or infringe on anyone’s right to free expression but instead the law only relates to state contracting. This is consistent with federal laws in that the U.S. government has emphatically rejected boycotts based on national origin and interferences with foreign trade policy in general and the federal courts have ruled that economic boycotts are not protected free speech. … Proponents of boycotting Israel remain free to call for such boycotts, encourage others to join them and participate in them.”

But some Jewish groups fear that anti-BDS acts will backfire.

“Saqib Ali’s lawsuit is one more in what we expect will be a litany of court challenges to bad anti-BDS laws on the state level that erroneously equate defending Israel with violating First Amendment protections,” said Jessica Rosenblum, senior vice president of J Street, a liberal pro-Israel group that opposes BDS. “U.S. courts in Kansas and Arizona have already issued injunctions against such laws.”

Rosenblum said that anti-BDS policies could harm pro-Israel causes because people will sympathize with litigants like Ali.

The liberal Americans for Peace Now opposes Hogan’s executive order because it erases the difference between Israel and the occupied West Bank, said Debra Shushan, director of policy and government relations. The group, which monitors the growth of Israeli settlements on the West Bank, opposes BDS.

Samantha Cooper is a reporter at Washington Jewish Week, a sister publication of the Baltimore Jewish Times.

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