The Center for Constitutional Rights, the National Lawyers Guild, and Palestine Legal have engaged in advocacy to oppose legislation in California that would threaten core First Amendment-protected activity.  After one of the bills, AB 2844, was signed into law in September 2016, CCR and Palestine Legal released an FAQ on its implications.

On February 12, 2016, the Center for Constitutional Rights, the National Lawyers Guild, and Palestine Legal sent a memorandum to California lawmakers regarding anti-boycott bills pending in the state assembly. The bills would have prevented the state from investing in entities that comply with boycotts of Israel (AB 1551) and from contracting with entities that engage in "discriminatory" boycotts (AB 1552). Following opposition to the bills, in March 2016, a previously unrelated bill, AB 2844, was amended to include unconstitutional restrictions on political speech in line with the two earlier bills. More information is available in this summary.

Due to its unconstitutional provisions, AB 2844 underwent a series of revisions in the legislature as concerns were expressed by lawyers, activists, journalists, the California Assembly Judiciary Committee, the California Department of Finance, and the California Senate Appropriations Committee. CCR and Palestine Legal sent legislators a copy of their joint report in April 2016 to demonstrate how this legislation fits into a pattern of suppression of Palestinian rights advocacy in the U.S. After AB 2844 passed the California legislature, CCR, Palestine Legal, and the NLG sent a letter to California Governor Jerry Brown urging him to veto the bill on September 23, 2016. Unfortunately, Governor Brown signed the bill into law shortly after.

These legislative efforts are part of a growing trend to introduce anti-boycott legislation in numerous states and the U.S. Congress.  For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian human rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

The FAQ about AB 2844 is below, and below that is the text of the September letter and the February memorandum.

Frequently Asked Questions: California’s anti-BDS law – AB 2844

On September 24, 2016, Governor Brown signed AB 2844 into law.[1] AB 2844 is commonly referred to as California’s anti-BDS law even though boycott, divestment, and sanctions (BDS) campaigns are not mentioned in the final version of the bill.

An earlier version of the bill was titled “California Combating Boycott, Divestment and Sanctions of Israel Act,” and it required the state to blacklist and impose a public-contract ban against any contractor that supported boycotts of Israel. After thousands of people across the state protested, and legal experts concluded that the bill unconstitutionally punished political speech, AB 2844 was repeatedly revised and whittled down. There is now a confusing divide between the intent of the law, which its author and sponsors still say is to combat BDS,[2] and the law’s actual text, which focuses on compliance with existing state anti-discrimination laws.

It is crucial for BDS supporters to understand the very limited scope of this law. The bottom line is that AB 2844 will not affect the vast majority of advocates for Palestinian rights in California. Moreover, boycotting and divesting from Israel to protest its policies toward Palestinians and international law violations does not violate California’s anti-discrimination laws and is protected by the U.S. Constitution.

What does AB 2844 do?

Under AB 2844, if you submit a bid or proposal to enter into a state contract worth $100,000 or more, or if you renew an existing state contract, you must certify – under penalty of perjury – two things:

• First, that you are in compliance with California’s Unruh Civil Rights Act (Unruh) and Fair Employment and Housing Act (FEHA). These laws are already on the books and they prohibit discrimination in employment, housing, or public accommodation against persons in California on the basis of sex, race, religion, national origin and other protected classes.
• Second, that any “policy” you have against a “sovereign nation or peoples recognized by the government of the United States, including, but not limited to, the nation and people of Israel” – is not used to discriminate in violation of Unruh and FEHA.

If you are not bidding on or proposing a state contract worth $100,000 or more, AB 2844 does not affect you.

Are BDS campaigns for Palestinian rights discriminatory under California law?

No. The movement for Palestinian rights is not motivated by discrimination, but seeks to end discrimination. BDS is one tactic to achieve freedom, justice, and equality for Palestinians. BDS campaigns are a protest of Israeli government policies and violations of international law.[3] BDS campaigns do not target individuals based on religion or any other protected classification, but, rather, companies and institutions that facilitate and profit from Israel’s human rights violations.

Do California’s anti-discrimination laws protect Israel against political boycotts?

No.  California’s anti-discrimination laws protect persons in California against discrimination in employment, housing, and public accommodations. They do not protect any foreign nation from political protest by Californians.

I support BDS and/or I am participating in a BDS campaign, and I do plan to bid on or propose a contract with California worth $100,000 or more. Does AB 2844 affect me?

Yes and no.

Because BDS campaigns do not discriminate in violation of Unruh and FEHA, BDS supporters can accurately certify that they are in compliance with these laws.[4]

But it is important to recognize the disconnect between the intent behind AB 2844 (to chill and stigmatize BDS activism) and its wording. Because of this disconnect, and because Israel-aligned organizations have threatened to use AB 2844 to instigate investigations against BDS supporters,[5] businesses and organizations that engage in boycott campaigns for Palestinian rights and that bid on or propose state contracts could be exposed to unfair government scrutiny. Perjury is a felony crime, and these investigations – and possible subsequent prosecutions – should be considered seriously. Remember, unless you are discriminating in employment, housing, or public accommodation in violation of Unruh or FEHA, you are not committing perjury under AB 2844.

If you have any questions or concerns, please contact [email protected].

I’m a small business owner who supports BDS and I currently have a contract with California worth $100,000 or more that pre-dates AB 2844.  Does AB 2844 affect me?

Not unless or until you apply to renew your contract, at which point you will be required to make the certification described above for a contract worth $100,000 or more.

Is my support for BDS campaigns protected by the First Amendment of the U.S. Constitution?

Yes. The U.S. Supreme Court has long held that boycotts to bring about political, economic, and social change – like boycotts for Palestinian rights – are protected by the First Amendment. For further information, visit www.palestinelegal.org/legislation.

For more information about AB 2844, including links to legal memos outlining constitutional concerns with the law, visit www.palestinelegal.org/california.

This FAQ is general legal information, not specific legal advice. Do not rely on this information without first seeking the advice of an attorney about your particular situation and facts. Only a licensed attorney, reviewing your individual facts, may render legal advice. This information is provided as a public resource for information purposes only. Nothing in this resource should be taken to create an attorney-client relationship between you and Palestine Legal or the Center for Constitutional Rights.

September 23, 2016

Hon. Edmund G. Brown, Jr.
California State Capitol
Sacramento, California 95815

Re: Request to Veto AB 2844, targeting constitutionally protected boycotts for Palestinian rights

Dear Governor Brown:

As civil and human rights organizations committed to upholding the rights of individuals to express their political beliefs without fear of government retaliation or retribution,[1] we write to convey our strong opposition to AB 2844. This bill’s authors have rewritten AB 2844 at least four times since it was first introduced in attempts to address constitutional concerns. But a fundamentally flawed bill cannot be fixed. At its core, AB2844 still targets and would chill constitutionally protected political speech. If enacted, AB 2844 would require prospective state contractors to make a certification under penalty of perjury based on their political position critical of a nation, specifically the State of Israel. We urge you to veto it.

A.    The goal of AB 2844 is and always has been to punish, suppress, and chill boycott, divestment, and sanctions (BDS) campaigns for Palestinian freedom

Originally introduced in February 2016 as the “California Combating the Boycott, Divestment, and Sanctions of Israel Act of 2016,” the first version of AB 2844 proposed prohibiting California from contracting with any company that boycotts Israel.[2] Since then, AB 2844 has undergone several rounds of revisions in response to constitutional concerns raised by lawyers,[3] activists,[4] the media,[5] and the California Assembly’s own Judiciary Committee, which concluded that the bill raises “very serious and perhaps insurmountable First Amendment concerns.”[6]

The version of AB 2844 that ultimately passed the state Legislature requires prospective state contractors to certify – under penalty of perjury – that they are in compliance with preexisting anti-discrimination laws and that any policy they have “against a sovereign nation is not used to unlawfully discriminate.” AB 2844 states that the intent of the legislation is to ensure that taxpayer funds do not support discriminatory actions under the pretext of the exercise of First Amendment rights; the legislation names no nation other than Israel, and no discrimination other than that against Jewish individuals under the “pretext of a constitutionally protected boycott or protest of the State of Israel.” In other words, the bill still seeks to target BDS campaigns and other protests regarding Israel, but it now attempts to do so by shrouding its goal in anti-discrimination language, promoting the false notion that boycotts for Palestinian rights are presumptively discriminatory.[7] In fact, Sec. 2, Sec. 2010(c)(1) of AB 2844 serves no purpose other than to chill speech critical of Israel, as the preceding sections 2010(a) & (b) already require that a prospective contractor certify that it is in compliance with California anti-discrimination laws.

Detractors of BDS campaigns sometimes allege that protesting Israeli human rights abuses amounts to national origin discrimination or anti-Semitism. BDS campaigns do not target individuals based on their Israeli nationality; rather, they target Israeli institutions because of their ties to state policy, or corporations for their complicity in human rights violations. Similarly, BDS campaigns do not target institutions or individuals based on Jewish identity. In fact, proponents of BDS campaigns often express their opposition to all forms of racism, which includes anti-Semitism and anti-Arab racism.[8]

By requiring prospective contractors to certify under penalty of perjury that their constitutionally protected political viewpoints are not being used to unlawfully discriminate, AB 2844 opens the floodgates for complaints, investigations, and possible felony prosecutions into the thoughts and beliefs motivating a prospective contractor’s support for Palestinian human rights.  

B.     AB 2844 targets core political speech in violation of the First Amendment

AB 2844 is before you at a time when Palestinian human rights activists in the United States and elsewhere are embracing boycotts as a way to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights. This bill seeks to stifle this human rights movement.

But government actions and restrictions cannot be based on the desire to punish or suppress First Amendment activities that aim to encourage social and political change in a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[9] The Court has specifically held that boycotts “to bring about political, social and economic change,” like human rights boycotts of Israel, are unquestionably protected under the First Amendment.[10]

It is undisputed that individuals, institutions, and companies may boycott in response to issues of public concern, as many have done historically to challenge racial segregation in the U.S., poor labor standards for farm workers in California, the apartheid regime in South Africa, and currently, fossil fuel companies and the prison industry. BDS campaigns for Palestinian rights cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such a differentiation would constitute viewpoint discrimination prohibited by the First Amendment.

C.    Denial of public contracts, where motivated by a desire to suppress core political speech, including BDS campaigns, violates the First Amendment

The United States Supreme Court has repeatedly affirmed that government officials’ determinations about what views are acceptable cannot infringe on the First Amendment-protected right to freely express political views – however controversial or unpopular.[11] Thus, in deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, “[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.” [12]

This bill represents an action by public officials to thwart or penalize protected speech activities because of the officials’ disapproval of the viewpoint expressed. There is no question that the bill is aimed at suppressing and punishing BDS campaigns, as discussed above. “Such interference with constitutional rights,” the Court has stated, “is impermissible.”[13]

D.    Penalizing those that boycott Israel will have a chilling effect on protected speech

AB 2844 infringes on protected First Amendment activities by subjecting political positions to government suspicion, investigation, approval, and penalty. If enacted, this bill will chill the free speech rights of individuals and businesses by effectively casting a shadow of suspicion over their position on a pressing human rights issue. Whether or not actual prosecution of the bill’s newly created perjury “thought crime” ensues, the specter of government investigation into the motivation behind one’s support for BDS campaigns is likely to chill protected speech and conduct. Individuals and businesses may refrain from adopting ethical political stances or making ethical business decisions if they know that decisions based on human rights concerns could result in the denial of state contracts and/or an inquiry – and possible prosecution – into their motivations.

In addition, this bill would discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. It would effectively chill advocates’ voices by undermining their goal of influencing companies to take ethical political stances, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[14]

E.     Conclusion

We are committed to upholding the First Amendment rights of those advocating for compliance with international law and on behalf of human rights, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government obstruction, investigation, and prosecution. AB 2844 could be used to punish individuals and companies that use an honored American tactic to effect political change, solely because public officials disagree with that tactic in this context. This bill is constitutionally indefensible, and its enactment could invite a legal challenge in order to protect the right to engage in speech activities such as boycotts intended to effect social, political and economic change.

Allowing AB 2844 to stand would threaten a crucial vehicle by which individuals and groups can make their collective voices heard. We urge you to veto it.

Sincerely,

Maria LaHood, Deputy Legal Director, Center for Constitutional Rights
Liz Jackson, Staff Attorney, Palestine Legal
Natasha Lycia Ora Bannan, President, National Lawyers Guild

February 5, 2016
Subject: AB 1551 and AB 1552 (Travis Allen)
Position: OPPOSE

We write in urgent opposition to two bills, AB 1551¹ and AB 1552,² that if passed, would unconstitutionally penalize core political speech, set standards that are impossibly vague and overbroad, contradict longstanding U.S. foreign policy, and result in the blacklisting of businesses, major churches and other entities.

AB 1551, the “California Israel Commerce Protection Act” introduced Jan. 4, 2016, by Assembly member Travis Allen, R-Huntington Beach, would prohibit the state from investing in businesses and institutions that comply with boycotts called for by a foreign country or international organization against Israel or Israeli-controlled territories.

AB 1552, introduced by Assemblyman Allen in tandem with AB 1551, would prohibit the state from contracting with entities that engage in what he calls “boycotts due to discrimination and bigotry.” Although it does not make explicit reference to Israel, the author has made clear that its intent is the same as AB 1551’s: to penalize participation in boycotts affecting Israel.³

Under the guise of expressing concern for purported discriminatory practices affecting Israel, the true agenda of these bills is to shield Israel from growing criticism of its policies and from nonviolent measures taken to express and make meaningful that criticism. Such measures, including boycott, divestment and sanctions (“BDS”) campaigns, are being adopted by an increasing number of socially responsible investors, churches, academic associations, unions, elected student governments and many thousands of individuals, who are motivated by conscience.

The context for boycott and divestment campaigns in connection with Israel

Israel’s occupation of the West Bank, including East Jerusalem, and of the Gaza Strip has been ongoing for almost half a century, with the daily violence of occupation periodically becoming deadly on a far greater scale. Gaza has been held under a crippling land, air and sea blockade by Israel for nearly a decade. Despite the strict prohibition under international law against transferring citizens of an occupying power to occupied territory, there are now over 650,000 Jewish-Israeli settlers residing in the West Bank. These settlers enjoy the full rights of Israeli citizenship, while nearly 5 million Palestinians in the territories lack basic human rights, including the right to move freely, the right to due process and the right to elect those who exercise ultimate control over their lives. Most of the Palestinian land that was once expected to form the basis for a Palestinian state has been confiscated to accommodate settlements, their infrastructure and the massive “separation wall,” all of which are illegal under international law.⁴ In addition, Palestinian citizens of Israel – 20 percent of the population – experience many forms of de jure and de facto discrimination, while Palestinians forced from their homes by Israel in the period surrounding its establishment in 1948 and their descendants are denied the right, guaranteed under international law, to return to their homeland.

Despite abundant documentation and condemnation of Israeli policies by the United Nations and virtually every major human rights organization in the world, the global community has failed to hold Israel accountable and to enforce compliance with international law.

Because of this, in 2005 some 170 Palestinian civil society organizations called upon people of conscience throughout the world to engage in a grassroots campaign to implement nonviolent boycotts against and divestment from companies and institutions that perpetuate these human rights violations and to demand sanctions against Israel until Palestinian rights are recognized in full.

Many thousands of people and organizations worldwide have responded by embracing a variety of strategies as a way to peacefully pressure Israel to end its human rights violations and to influence public opinion in favor of Palestinian rights. These campaigns have undoubtedly been controversial, and they have begun to bear fruit, to a small extent economically and much more so in the court of public opinion. Major church denominations have voted to boycott products from illegal settlements and/or divest from Israeli and multinational corporations whose actions and profits are tied to the occupation. Numerous student governments, unions and academic associations have declared their support. Some large corporations, under pressure from public outcry, have ended their involvement with Israel’s occupation.

The government of Israel and its supporters in the United States and Europe are engaged in a concerted campaign to stifle and suppress activism for Palestinian human rights.⁵ They are pressing for legislation at the federal, state and local levels to unconstitutionally punish people who support this nonviolent political movement. AB 1551 and AB 1552 are part of this campaign of repression.

Boycotts are political speech and therefore must be accorded the highest level of First Amendment protection

Boycotts in pursuit of political aims are an integral part of American history. From the original Boston Tea Party protest have followed other transformative campaigns such as the Montgomery bus boycott against segregation, the grape boycott in support of farm labor rights, boycotts of companies and institutions enabling South African apartheid, and current divestment campaigns against fossil fuel and private prison companies. All of these boycotts were controversial when first proposed by small groups of activists. Eventually, all came to win widespread public and bipartisan political support.

The constitutional protection due a political boycott was articulated in the landmark Supreme Court case, NAACP v. Claiborne Hardware Co.⁶ In that case, a local NAACP branch boycotted white merchants to pressure elected county officials to adopt racial justice measures. The merchants sued NAACP for interference with business. The Supreme Court found that “the boycott clearly involved constitutionally protected activity” through which the NAACP “sought to bring about political, social, and economic change.” It concluded that the boycott constituted a political form of expression protected by the First Amendment rights of speech, assembly, association and petition.

It is a stunning inversion of free speech principles for AB 1551 to make “politically motivated” boycotts a singular target of government repression, since it is precisely their political dimension that requires heightened First Amendment protection for those who engage in such boycott activity. As the Supreme Court pointed out in Claiborne, a political boycott, like other forms of speech concerning public issues, “occupies the highest rung of the hierarchy of First Amendment values.”⁷

Boycotts against companies and institutions complicit in Israel’s human rights violations are not “discriminatory”

AB 1552 prohibits the state from contracting with people or entities that engage in boycotts “based on the race, color, religion, gender, or nationality of the targeted person or entity.” While it does not make explicit reference to Israel it is clearly intended by the author to be applied, apparently exclusively, against those who support the Palestinian call for boycotts, divestment and sanctions (known as BDS). In his statement introducing AB 1552, Assembly Member Allen points to “BDS” as his sole example of a discriminatory boycott, and characterizes it as “as a pretext for anti-Jewish activity.”⁸

In fact, boycott and divestment campaigns in support of Palestinian rights are directed not against classes of people, but against Israeli policies that proponents maintain violate international law. The entities targeted are companies and institutions complicit in such abuses. These boycott and divestment campaigns in support of Palestinian rights in no way discriminate against individuals based on their national origin, ethnicity or religion; indeed they are undertaken to challenge policies and laws that discriminate against people based on ethnicity and religion.

To portray such a struggle for human rights as “anti-Jewish” is itself an expression of bigotry, especially offensive given the many Jewish people in this country who are well-represented among critics of Israel. In Israel itself, Jewish and Palestinian citizens who seek to change what they view as their government’s increasingly undemocratic agenda and harmful policies have joined the call for boycotts. Lately, protest has focused on their government’s attempt to penalize citizens who advocate boycott, a step made feasible because Israel lacks both a constitution and a guarantee of free speech.⁹

The state may not single out “discriminatory” expression for punishment

The state may establish classifications of people vulnerable to discrimination (e.g., based on their race, religion or national origin) for the purpose of protecting their civil rights in such areas as public accommodations, employment, housing and education. But the Supreme Court has held that the state may not single out these classifications as a basis for punishing speech, because to do so would be unconstitutional viewpoint-based discrimination by the state.¹⁰ AB 1552 is therefore unconstitutional on its face.

Moreover, the landmark boycott case in this country stemmed from a boycott that was based on race, which was morally justified and resulted in positive social change. The NAACP v. Claiborne Hardware boycott vindicated by the Supreme Court (see above), was organized by black residents against white merchants. It was meant to pressure local officials to meet their demands for racial and economic justice, and to educate the white community about their grievances. Under AB 1552, that boycott would have barred NAACP from entering into contractual relationships with the state.

Denial of financial relationship with the state on the basis of political beliefs is constitutionally impermissible

In Rutan v. Republican Party of Illinois,¹¹ the Supreme Court held that the government could not deny employment opportunities to punish public contractors in retaliation for political beliefs. The court observed that although the government may deny a benefit for a number of reasons, “it may not deny a benefit to a person on a basis that infringes his constitutionally protected interests – especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. … Such interference with constitutional rights is impermissible.”¹²

Thus, regardless of one’s views on Israel and Palestine or on strategies involving boycott and divestment, AB 1551 and AB 1552 must be rejected as a blatantly unconstitutional means to penalize and inhibit protected speech by withholding financial relationships with the state due to the speakers’ political beliefs.

AB 1551 supports illegal settlements, contrary to longstanding U.S. policy

A new Human Rights Watch¹³ report comprehensively documents how illegal Israeli settlements and industrial zones in the occupied West Bank cause major harm to prospects for Palestinian economic development there. Moreover, it details “the ways in which Israeli and international businesses have helped to build, finance, service, and market settlement communities” and concludes: “[B]y virtue of doing business in or with settlements or settlement businesses, companies contribute to one or more of these violations of international humanitarian law and human rights abuses.”

AB 1551 would penalize those who heed the recommendations of Human Rights Watch and stop or decline to start doing businesses “in Israeli-controlled territories,” including in the occupied West Bank. In this way, it seeks to protect and legitimize Israel’s settlements.

Successive U.S. administrations have determined Israeli settlements in the West Bank to be illegitimate and a serious “obstacle to peace.” In 2015, reacting to an amendment in a federal trade bill that opposed trading partners’ discriminating between products from illegal settlements and those from Israel, the State Department issued a statement saying the U.S. government “has never defended or supported Israeli settlements or activity associated with them, and, by extension does not pursue policies or activities that would legitimize them.”¹⁴ The California Legislature should not do so either.

Who could be blacklisted under AB 1551 and AB 1552?

•    Multinational corporations

Civil campaigns to boycott and/or divest from companies complicit in Israel’s human rights violations have fast been gaining ground in the United States and throughout the world, and have had an impact on large multinational corporations that have profited from and facilitated the occupation.

For example, Veolia, a French-based firm that deals in transportation, water projects and sanitation, with many facilities in California, recently announced that it was ending its activities in the occupied Palestinian territory. For several years it had come under heavy criticism – and lost billions in contracts – for running segregated (Jewish settlers only) buses, a light rail line from West Jerusalem to illegal settlements and a West Bank landfill for settlement trash dumped on Palestinian land.

Other major multinationals that have recently announced plans to end commercial activities in Israel and/or the occupied territory in compliance with boycott calls include CHR, the world’s largest producer of building materials and supplies; and Orange, one of the largest telecommunications providers in the world. Corporations that have acceded to calls that they end their operations in West Bank settlements include Unilever and SodaStream. All these companies (or their subsidiaries) have a strong business presence in California. A legislative mandate to boycott and divest from them would foreclose major investment and contractual options for California, without moral justification for such a restriction.

•    Major churches

The Presbyterian Church (USA), the United Methodist Church, the World Council of Churches, the United Church of Christ and the Quakers have all voted to divest from several corporations implicated in supporting Israel’s occupation regime, and/or to boycott products produced in illegal settlements in the occupied Palestinian territory. Other faith-based groups actively considering joining them include the Episcopal Church and Unitarian Universalists.

AB 1552 could make these churches ineligible to receive state funds for their charitable programs that feed, clothe, heal and shelter vulnerable populations in California.

•    Other entities that could be blacklisted include universities, foundations and unions

Campaigns to divest from companies complicit in Israel’s occupation have won student government backing at seven UC campuses, plus several CSU and private California universities. Recently the University of California decided to divest from G4S, a private security company, as part of a policy to oppose private prisons. In addition to its activities in the United States and Europe, G4S has also come under widespread criticism for providing services and equipment to West Bank settlements, Israeli military prisons that hold thousands of Palestinian political prisoners, including hundreds of children, and to checkpoints around the separation wall in the West Bank. Under the proposed legislation, could California be required to sever its relations with public universities in the state?

The Bill Gates Foundation has also withdrawn investments in G4S, following protests and a petition signed by over 14,000 people calling on the foundation to divest from that company because of its role in Israel’s prison abuses.

In 2014, the membership of UAW Local 2865, representing over 13,000 UC graduate students, teaching assistants and other student workers, voted overwhelmingly to endorse boycott, divestment and sanctions. In 2015, the United Electrical Workers Union (UE), representing over 30,000 private and public sector workers across the country, became the first U.S. national union to do so as well. Under AB 1552, contractors employing UE workers (such as PG&E) or UC student workers, could be banned from commercial relations with the state.

Unconstitutional vagueness and impracticality

In addition to violating well-established First Amendment principles, AB 1551 and AB 1552 also present serious constitutional problems given the vast and imprecise net that is cast by requirements to create and maintain blacklists of individuals, nonprofit organizations, corporations, unions and other entities based on exercise of their free speech rights. For example:

•    AB 1551 requires that state trust funds “use the most recent federal report on politically motivated acts of boycott, divestment from, and sanctions against Israel to determine which business firms and financial institutions engage in discriminatory business practices.” To the best of our knowledge, no such report exists.

•    AB 1551 absolves a financial institution or business from the bill’s investment ban if a company’s governing body adopts prescribed language promising to change its ways. State trust funds could thus be required to refrain from placing buy orders for thousands of securities until they obtained such commitments, a massively cumbersome exercise inimical to sound investment practice.

•    AB 1551 penalizes “taking any action” in compliance with a foreign-country boycott, that is “politically motivated.” Putting aside for the moment the fact that “politically motivated” expression is precisely what must be accorded enhanced protection under the First Amendment – what qualifies as “taking any action”? Who will judge the motivation for declining to buy Israeli products or to do business in Israel? What is the process for reporting and what is the process for challenging such a report?

•    AB 1552 conditions public agency contracting on a representation that the potential contractor is not engaged in a discriminatory boycott of “a person or entity based in or doing business with a jurisdiction with which the state can enjoy open trade.” That encompasses nearly 200 countries, and purports to cover any person or entity that might do business in or with them – or might not, for any number of reasons. Who will track compliance with such a massively overbroad prohibition?

In short, the bills’ provisions are impossibly vague in identifying either the conduct to be penalized or the process for imposition of penalties. They would have the effect of intimidating people, businesses and institutions from engaging in all manner of protected political expression for fear that they would be blacklisted. If enacted, they will lead to confusion among trust funds, public agencies, sellers of securities and potential contractors alike, and will likely invite legal challenges.

An unconstitutional state boycott to punish boycotts of conscience

Governmental or other public entities can and sometimes do engage in boycotts against foreign governments on matters of important public policy or international relations. State accession to public calls for direct boycott of and divestment from companies and institutions that were complicit with the apartheid regime in South Africa, or more recently with human rights abuses in Sudan and Iran, or that despoil the environment (e.g. fossil fuel companies today) – all these are universally seen as state action to secure politically just resolutions.

In contrast, the boycotts imposed by AB 1551 and AB 1552 do not seek to bring about political or social justice – they aim to punish those of its citizens who do engage in boycott activity as an act of conscience, and thereby to silence them.

Conclusion

The state should not be used to shield a foreign country from political criticism by penalizing the decisions of private citizens and corporations regarding what companies they will do business with and how they will invest their money in a manner consistent with their values. This would be a grave overreach of governmental power and an unprecedented assault on the free speech rights of Californians and those who do business with the state of California.

Bills like AB 1551 and AB 1552 have passed in a few states and are being proposed in a number of others. But California has the opportunity to lead the way in blocking the agenda of enforcing uncritical support of Israeli policies that underlies these bills. The Legislature must uphold precious constitutional liberties while acting in the best interests of the economy, the people and their democratic institutions.

Respectfully submitted,

Maria Lahood, Deputy Legal Director, Center for Constitutional Rights (New York City)
Natasha Bannan, President, National Lawyers Guild
Liz Jackson, Staff Attorney, Palestine Legal (Chicago, Berkeley and New York)

For inquiries, please contact the primary authors:

•    David L. Mandel, Jewish Voice for Peace and National Lawyers Guild, Sacramento: [email protected]; 916-407-2814
•    Carol Sanders, Jewish Voice for Peace, Berkeley: [email protected]; 916-407-2814

_____________________________________
¹ http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB1551
² http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB1552
³ See Allen’s press releases of Dec. 10, 2015, https://ad72.asmrc.org/press-release/13866, and Jan. 4, 2016, https://ad72.asmrc.org/press-release/14104.
⁴ See the 2004 opinion by the International Court of Justice. Its summary: http://www.icj-cij.org/docket/index.php?pr=71&code=mwp&p1=3&p2=4&p3=6.
⁵ Report by Palestine Legal and the Center for Constitutional Rights, Sept. 2015: http://palestinelegal.org/the-palestine-exception
⁶ 458 U.S. 886 (1982)
⁷ Claiborne, at p. 913, quoting Carey v. Brown, 447 U. S. 455, at p. 467
⁸ https://ad72.asmrc.org/press-release/14104
⁹ The Association for Civil Rights in Israel, similar to the U.S. ACLU, was prominent in challenging the law. See http://www.acri.org.il/en/2015/04/16/hcj-boycott-law/.
¹⁰ R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). R.A.V. further holds that speech targeting people on the basis of their race, religion or other protected classification may be sanctioned, like any other speech, if it amounts to an exception to free speech, such as “fighting words.” But such speech may not be statutorily singled out for sanction as distinct from other expression that may fall within the same exception – for example “fighting words” used to express hostility on the basis of political affiliation, union membership or sexual preference. 505 U.S. at 391.
¹¹ 497 U.S. 62 (1990)
¹² See also O’Hare Truck Service Inc. v. City of Northlake, 518 U.S. 712 (1996) (independent contractors entitled to same First Amendment protection against retaliation for political expression as government employees).
¹³ Occupation, Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights, https://www.hrw.org/node/285045/
¹⁴ http://www.politico.com/story/2015/06/administration-objects-to-israeli-settlements-provision-in-trade-bill-119620

A one-page summary of the concerns identifed in the memorandum, updated to include AB 2844, is endorsed by the following Stop AB 1551 & 1552 Coalition organizational members (as of March 31, 2016):

Major national organizations
American-Arab Anti-Discrimination Committee
American Friends Service Committee
American Muslims for Palestine
Bill of Rights Defense Committee/Defending Dissent Foundation
Center for Constitutional Rights
Friends of Sabeel North America
Jewish Voice for Peace
National Lawyers Guild
Palestine Legal
U.S. Campaign to End the Israeli Occupation
U.S. Palestinian Community Network
 
Other organizations, California and local chapters
American Muslims for Palestine, Southern CA
American Muslims for Palestine, SF Bay Area
Arab American Civic Council
Arab American Cultural Center of Silicon Valley
Arab Resource and Organizing Center, SF Bay Area
Bay Area Women in Black
BDS-LA for Justice in Palestine
Council on American Islamic Relations, California
California Democratic Party, Arab American Caucus
Chico Palestine Action Group
Coalition of Palestinian American Organizations
Cognitive Liberty
Culture and Conflict Forum
Davis Committee for Palestinian Rights
East Timor Action Network
Episcopal Peace Fellowship, Palestine Israel Network
Episcopal Peace Fellowship, Palestine Israel Network, LA
Friends Committee on Legislation, California
Friends of Sabeel North America chapters: Claremont, Los Angeles, Orange County, Sacramento
Free Palestine Movement
If Americans Knew
International Jewish Anti-Zionist Network (IJAN)
International Solidarity Movement, Northern California
Islah Reparations Project
Islamic Shura Council of Southern California
Israel Palestine Task Force, CA-Nev. Annual Conference, United Methodist Church
Jewish Voice for Peace chapters: Bay Area, Los Angeles, North Bay, Sacramento, San Diego, Santa Barbara, Santa Cruz, South Bay, UCLA
Justice for Palestinians, San Jose
Kairos USA
Keep Hope Alive - Bay Area Presbyterians
LA Jews for Peace
Middle East Peace Task Force, Southwest California Synod, Evangelical Lutheran Church in America
National Lawyers Guild, Los Angeles chapter
National Lawyers Guild, San Francisco chapter
North Coast Coalition for Palestine
Northern California Islamic Council
Our Developing World
Palestine American Congress
Palestine American League
Palestine Israel Action Committee
Palestine-Israel Working Group of Nevada County
Palestine Political Action Committee
Palestinian American Women's Association
Palestinian Youth Movement-USA
Peace Action of San Mateo Co.
Peninsula Peace and Justice Center
People for Palestinian-Israeli Justice
Petaluma Progressives
Pilgrims of Ibillin
Queers Undermining Israeli Terrorism
Ramallah Club of San Jose
Rebuilding Alliance
Resource Center for Non-Violence, Santa Cruz
Sacramento Regional Coalition for Palestinian Rights
San Jose Peace and Justice Center
Social Justice Center of Marin
Students for Justice in Palestine chapters: San Jose State University, Santa Clara University, UC Berkeley, UC Davis, UC Irvine, UCLA, UC San Diego, UC Santa Cruz, University of Southern California
Sustainable Agriculture Water and Health (SAWAH)
Syria Solidarity Movement
UAW 2865 Joint Council/Executive Board
Unitarian Universalists for Justice in the Middle East
United Church of Christ Palestine Israel Network
United Methodist Kairos Response
Veterans for Peace, Chapter 87, Sacramento
Voices for Justice in Palestine, Rossmoor, Walnut Creek
Washington Interfaith Alliance for Middle East Peace
Wellstone Progressive Democrats of Sacramento
Women’s International League for Peace & Freedom chapters: San Jose, Sacramento Valley, Santa Cruz
14 Friends of Palestine, Marin County