Summary
State and federal bills, executive orders and certification requirements designed to penalize participation in boycotts of Israel, which Kenney-Shawa’s brief treats as shielding Israel from accountability at the cost of US citizens’ First Amendment right to political boycotts, and as the template for a wider assault on protest rights (lines 141-149).
Details
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Scale as the brief gives it, as of October 2022: bills and executive orders introduced in 34 states, applying to over 250 million US citizens; 59 of 261 anti-boycott bills introduced had been passed at state and local levels; since 2014 dozens of states have adopted such laws (lines 143, 147, 167).
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Mechanisms as the brief gives them: prohibiting state contracts with those who support BDS, certification pledges not to boycott Israel as a condition of contracts, employment and even disaster relief, blacklists of businesses, pension fund divestments, and threats to cut ties with investment agencies over ESG ratings (lines 175-187). After district courts in Arizona, Georgia, Kansas and Texas blocked laws as unconstitutional compelled speech, amended versions excluded individuals and sole proprietors but kept certification for companies doing more than $100,000 of business with the state (line 181).
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Constitutional position as the brief gives it: political boycotts are a cornerstone of the First Amendment under NAACP v. Claiborne Hardware Co. (1982); the Eighth Circuit’s 2022 ruling in the Arkansas Times case upheld such a law — the brief says the court “became the highest-level court to consider the issue” (line 143) — by treating the act of boycott as “non-expressive” conduct (lines 143, 203-215).
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Drivers as the brief gives them: the Israeli regime, funneling millions through NGOs to US advocacy groups in bypass of foreign interference laws; the American Legislative Exchange Council, which drafts the bills; evangelical organizations such as Christians United for Israel; and bipartisan officials, from Governor Cuomo’s 2016 blacklisting order to the Combating BDS Act three years later — 2019 (computed from line 197; the brief gives no year) (lines 145, 191-197). The Pro-Israel lobby is the brief’s name for the force that continues to adapt as the laws are blocked, amended and reintroduced (lines 147, 219), and whose pressure Morningstar is said to have caved to (line 187).
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Wider use: the laws serve as templates for Copycat legislation against fossil-fuel and firearms boycotts, alongside anti-protest bills in 38 states since 2017 (lines 149, 223-225).
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Project Esther: Suppressing Palestinian Solidarity in the US restates the campaign in one paragraph: since 2014 dozens of US states have enacted laws penalizing boycotts of or refusal to engage with entities complicit in the Israeli occupation, often barring violators from state business; the Eighth Circuit upheld Arkansas’s contractor pledge in 2022; federal courts in several states have struck such measures down as unconstitutional, but the effort persists and the Trump Administration aims to take it to a new level (line 203).
Where sources disagree
- Earlier sources give the earlier state of the same campaign, not a conflicting one: Palestine: A Socialist Introduction and Rethinking Statehood in Palestine record anti-BDS legislation or resolutions passed in twenty-seven US states since 2014 — see Lawfare. Kenney-Shawa’s 2022 count is of bills and orders introduced in 34 states, a different measure taken later.
Related pages
Challenging Anti-Boycott Legislation in the US, BDS movement, Copycat legislation, Lawfare, Freedom of Expression, NAACP v. Claiborne Hardware Co., Eighth Circuit, Israel, Pro-Israel lobby