Case Summary and Outcome

The US District Court of Texas, Austin Division, declared H.B. 89, a Texas law prohibiting boycotts of Israeli goods and services as a condition of public employment, unconstitutional under the First Amendment. Four individuals who claimed they had to either suppress their political speech against their conscience or forfeit employment opportunities with the State and lose income brought the lawsuit. The Court conducted a lengthy review of case law to conclude that boycotts were protected expressive conduct. Rejecting the State’s arguments, the Court concluded that H.B. 89 was an impermissible content and viewpoint-based restriction on protected expression, imposed unconstitutional conditions on public employment, compelled speech for an impermissible purpose, and was void for vagueness.

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Facts

The case concerns legislation enacted by the Texas State Legislature in 2017, House Bill 89 (H.B. 89) which ‘prohibits state entities from contracting with companies (including for-profit sole proprietorships, associations, limited partnerships, among others) that “boycott Israel.” It provides:

A governmental entity may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it:

(1) does not boycott Israel; and

(2) will not boycott Israel during the term of the contract. Tex. Gov. Code § 2270.002.

Additionally, Congress, through 19 U.S. Code § 4452, “opposes politically motivated actions that penalize or otherwise limit commercial relations specifically with Israel, such as boycotts of, divestment from or sanctions against Israel.” As of April 10, 2019, 27 states have adopted anti-boycott legislation and further legislation is pending in 14 states.

The plaintiffs include Bahia Amawi (“Amawi”), John Pluecker, Zachary Abdelhadi, Obinna Dennar, and George Hale, all of whom have faced the potential or real loss of employment contracts with the State of Texas due to their support the “BDS movement”. The BDS movement is a non-violent movement which supports boycotts, divestment and sanctions against Israeli goods and services in an effort to put pressure on the Israeli government to end its occupation of Palestinian territory and human rights abuses of Palestinian citizens and refugees.

Amawi is a US citizen of Palestinian origin who was unable to renew her contract as a speech pathologist with Pflugerville Independent School District (“PISD”) due to her support of the BDS movement. She claimed the Bill violated her “First Amendment rights to advocate for human rights in Palestine.” (p.5)

John Pluecker is a freelance writer, artist, interpreter, and translator who lost multiple contracts with the University of Houston based on his support for the BDS movement. Similarly, Zachary Abdelhadi, a Palestinian-American, and Obinna Dennar lost contracts or were not paid for work they did judging school debate teams. George Hale is a radio journalist with the local northeast Texas NPR station who was forced to cease his boycott related activities or lose his job. Hale had lived with Palestinians for 8 years from 2008-2016 in Israel, during which time he reported on the Israeli-Palestinian conflict for a variety of news organizations.

The defendants include Ken Paxton, in his official capacity as Attorney General of the State of Texas (“Texas” or the “State”), the Board of Regents of the University of Houston System and the Board of Regents of the Texas A&M University System (the “Boards” or the “Universities”), and the Trustees of the Klein Independent School District and the Trustees of the Lewisville Independent School District (the “Trustees” or the “School Districts”).

The Plaintiffs brought motions for preliminary injunctions to halt the implementation of the law, alleging that H.B. 89 violated the First and Fourteenth Amendments to the U.S. Constitution and the defendants brought motions to dismiss.

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Decision Overview

The main issue before the Court was whether Texas may prohibit boycotting the State of Israel as a condition of public employment.

The Court had to assess in turn the four factors required to grant preliminary injunctive relief, which are 1) likelihood of success on the merits; 2) claimant is likely to suffer irreparable harm without preliminary relief; 3) the balance of equities between the parties support an injunction; and 4) the injunction is in the public Interest.

Before the Court could begin an assessment of the merits, it first had to determine whether the First Amendment applied to the Plaintiff’s boycott activities. After a careful review of legal precedent, the Court found that the boycotts were inherently expressive conduct and hence were protected speech.

In assessing whether boycotts constitute speech, the Court considered the “dueling” Supreme Court case law of NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) which found boycotts to be expressive speech and Rumsfeld v. FAIR, 547 U.S. 47 (2006) which determined that preventing military recruiters from speaking on campus as a form of protest was not “inherently expressive” conduct as it required accompanying “explanatory speech” for its message to be understood. (p. 24) Since FAIR did not expressly involve boycotts, the Court set it aside as inapplicable. It also found other established standards usually relied on in BDS cases, such as International Longshoremen’s Ass’n v. Allied International, Inc., 456 U.S. 212 (1982) to be inappropriate as BDS boycotts were “not a labor union practice coercing participation in industrial strife.” It further dismissed Briggs & Stratton Corp. v. Baldridge, 728 F.2d 915 (7th Cir. 1984) as irrelevant as it did not address infringements on political speech or the right to boycott.

The Court determined that the U.S. Supreme Court decision in Claiborne was the most relevant and would govern the case. The Court rejected Texas’ claims that Claiborne did not protect economic boycotts and held that Claiborne, in fact, established that “withholding patronage” was a “non-violent element of petitioner’ activities” protected by the First Amendment, which ultimately prevented Mississippi from “awarding compensation [to the merchants] for the consequences of [this] nonviolent, protected activity.” (p. 25) The Court further rejected the State’s “spurious” argument that boycotts are just about “buying things,” countering that the power of groups to coordinate activities for political purposes to be deeply American. Addressing the defendants reliance on FAIR, the Court explained that even if they accepted that that boycotts were not inherently expressive conduct, it was clear by the language of H.B. 89 that it applied only to expressive boycotts. The Bill defines a boycott by its expressive purpose not to purchase goods or services, and hence boycotts constitute expressive conduct.

Again relying on Claiborne to establish boycotts as protected speech, the Court found that BDS boycotts were not only inherently expressive, “but as a form of expression on a public issue, rest on “the highest rung of the hierarchy of First Amendment values.” ’ (p. 26) The Court further rejected Texas’ interpretation of Claiborne that only national boycotts which “vindicated a constitutional right,” could receive First Amendment protection. The Court countered that there is “no authority” that established that only speech related to domestic matters receives constitutional protection and moreover, “constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964)

Returning to the merits of the case, the Court then turned to the First Amendment challenge to H.B. 89 based on the claim that it constituted content and viewpoint based discrimination. Citing a range of Supreme Court case law, it established that “content based laws…are presumptively unconstitutional” and that “[v]iewpoint-based regulations impermissibly ‘license one side of a debate’ and ‘create the possibility that the [government] is seeking to handicap the expression of particular ideas.’ ” R.A.V. v. St. Paul, 505 U.S. at 391, 394

The Israeli-Palestinian conflict as a major international concern is thereby an issue of significant public debate. The Court noted that the United Nations unanimously adopted a resolution condemning Israeli settlements in Palestinian territory as “a flagrant violation under international law.” (p. 30) The Court affirmed the Plaintiffs claim that the Texas statute “licensed one side” of the debate over the other.

The Court rejected the States’ claim that H.B. 89 was “enacted to advance a permissible goal of government” and was government speech. The Court found that it was a content as well as viewpoint based restriction as it only targeted speech about Israel and that impacted relations with Israel.

Next in assessing the merits, the Court determined that H.B. 89 did not serve a compelling state interest, and therefore could never be narrowly tailored to survive scrutiny. The Court rejected the State’s argument that the Bill was a “standard anti-discrimination measure” to prevent discrimination based on national origin and was only an “incidental burden,” on the grounds that statements made by State representatives as well as “[t]he statute’s plain text makes its purpose obvious: to prevent expressive conduct critical of the nation of Israel, not discriminatory conduct on the basis of Israeli national origin,” and hence the Bill was tailored to “silence speech with which Texas disagrees.” (p. 32-33) Again relying on Claiborne, Texas’ authority to “align commerce with its policy objectives and values,” did not extend to overly broad restrictions on peaceful political speech.

The Court then addressed the Plaintiffs claim that H.B. 89 put them in a position where they would have to surrender their First Amendment rights before accepting public employment. Such a situation effectively violated the “unconstitutional conditions doctrine,” which holds the “government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected…freedom of speech.’ ” (p. 38) Applying the Pickering balancing test, the Court found that the State would have to meet a very high bar as the Bill’s restriction was “preemptive” and impacted numerous speakers. The Pickering test required a weighing of the “interests of the [plaintiff], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.” (p. 38) The State was not able to provide sufficient evidence that the interests of the various related communities outweighed any potential negative consequences of plaintiffs expressions on the running of state operations.

The next question before the Court was whether H.B. 89 unconstitutionally compelled the plaintiffs to speak by requiring them to “(1) reveal whether they boycott Israel for purposes Texas disfavors, and (2) certify that they do not boycott Israel.” (p. 41) The Court found that based on its above arguments, Texas may not compel a contractor to reveal personal political “views or associations solely for the purpose of withholding a right or benefit because of what he believes” or require him/her to refrain from protected speech for the duration of the contracted employment.

The Court also found H.B. 89 to be unjustifiably vague due to the inclusion of a “catch-all phrase” as well as a “carve-out phrase.” The “catch-all” phrase in the definition of a boycott prohibited contractors from “otherwise taking any action” which could harm or limit commercial relations with Israel. This could include activities as diverse as buying artwork from Palestinians or protesting outside of stores. The Bill also included a “carve out provision” which stated that “Texas does not consider a refusal to transact with Israel ‘for ordinary business purposes’ to be a ‘boycott’,” but failed to define what constitutes ordinary business purposes. More troubling for the Court was the concern that contractors could be accused of engaging in boycott related actions for simply not having Israeli products on display in their office, which conversely could compel them to purchase such products out of fear of potentially being found liable of violating the Bill. Therefore, the Court found that the Bill failed to “provide[ ] explicit standards for those applying [it] to avoid arbitrary and discriminatory applications.” (p. 46)

The Court determined that all four of the preliminary injunction factors weighed in favor of the Plaintiffs, and therefore granted the injunction. First, as detailed above they were likely to succeed on the merits. Second, they were likely to suffer irreparable harm based on lost employment opportunities without the injunction.  Irreparable harm can be caused by the loss of First Amendment freedoms, for even short periods of time which the Plaintiffs had clearly proved by having already forfeited income, while Hale had to suppress his speech for fear of losing his job. Third, the Balance of Equities tipped was in their favor as Texas had failed to prove H.B. 89 served a legitimate state interest. Fourth, the protection of First Amendment freedoms are always in the public interest. (p. 48)

The Court ruled that H.B. 89 was unconstitutional under the First Amendment because it (1) is an impermissible content and viewpoint-based restriction on protected expression; (2) imposes unconstitutional conditions on public employment; (3) compels speech for an impermissible purpose; and (4) is void for vagueness. (p. 46)

Taking the Plaintiffs factual allegations as true that a Government policy had chilled their speech, the Court rejected the defendants’ motions to dismiss.

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