Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
In Progress Expands Expression
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The U.S. District Court of Kansas found that a state law requiring all parties entering a contract with the state to certify they are not engaged in a boycott of Israel was likely to be unconstitutional and granted a preliminary injunction prohibiting its enforcement prior to a full determination of the case. The law had been challenged by a Kansas teacher arguing that it violated the First Amendment. The Court reasoned that the law engaged in possible viewpoint and subject matter discrimination, pursued an impermissible goal of limiting offense to Israeli businesses, and was not narrowly tailored by over-including boycotts in its ban. Accordingly, it found that Koontz was likely to succeed on the merits of the challenge to the anti-boycott law because it violated the First Amendment right to free speech which included participating in boycotts.
The Kansas legislature passed and the state enacted a law in June 2017 requiring all parties contracting with the state (“state contractors”) to certify they were not engaged in a boycott of Israel. Passed as House Bill 2409, the law was codified as Kansas Annotated Statute § 75-3740 (“the Kansas law” or the “anti-boycott law”). A boycott is a refusal to do business or have dealings with something to protest, express dissatisfaction, or influence affairs. In this case, Kansas aimed the law at certain boycotts with entities or people associated with Israel.
The Kansas law did allow for a waiver of the anti-boycott certification if “compliance is not practicable.” (Kansas Law at § 75-3740f(c)). According to legislators during debate and individuals who testified to the Court, the law was purportedly passed to “stop people from antagonizing Israel,”a “substantial trading partner” with Kansas. (at p. 2-3)
Esther Koontz, a curriculum coach at a public school in Wichita, Kansas, began a boycott of Israeli businesses in May 2017 to protest conditions in Israel and Palestine. Koontz was set to serve as a teacher trainer in a Math and Science Partnership program (“the training program”) implemented by the Kansas State Department of Education (“KSDE” or “the Kansas Department of Education”), completing the prerequisites for the program in May 2017. Koontz desired to participate in the training program to improve her career prospects and increase her discretionary income in the form of $600 per day for training sessions.
On July 10, 2017, just as Koontz began scheduling training sessions, the program director asked Koontz to sign a certification that she was not involved in a boycott of Israel as required by the Kansas law. On August 9, 2017, Koontz sent an email informing the training program director that she was refusing to sign the anti-boycott certification.
As a result of Koontz’s refusal to certify that she was not boycotting Israel, the Kansas Department of Education declined to pay or contract with Koontz. Koontz did not apply for a waiver of the anti-boycott certification under the Kansas Law, even though the Department of Education submitted an affidavit that it would have waived the certification requirement.
Koontz brought a lawsuit against the state of Kansas as represented by Randall Watson, Kansas Commissioner of Education (“Watson” or “Kansas”), and asked the Court to declare that the anti-boycott law was unconstitutional, arguing that it violated the First Amendment right to free speech and the Fourteenth Amendment’s Equal Protection Clause. Koontz filed a motion requesting a preliminary injunction, a court order before a final determination of the case that would prevent Kansas from enforcing the anti-boycott law.
Crabtree, D.J., entered the Order for the U.S. District Court for the District of Kansas. Before analyzing the case, the Court noted that determining the constitutionality of democratically enacted laws is included in the “gravest and most delicate” responsibilities for a federal court; but “just as surely, following precedent is a core component of the rule of law.” (at p.1)
Before applying the test for a preliminary injunction, the Court first had to discuss two justiciability doctrines: ripeness and mootness. Justiciability doctrines are to determine whether courts have the authority and ability to provide an adequate resolution for a dispute. Both the ripeness and mootness doctrines had special freedom of speech components.
Ripeness requires that a case “present a live controversy, ripe for determination, advanced in a ‘clean-cut and concrete form.’” (at p. 5, quoting Renne v. Geary) There is a special ripeness test for claims challenging a law itself under the First Amendment, which is:
Koontz satisfied the requirements for ripeness, because Koontz and other aspiring contractors suffered a hardship by being disqualified from contracting with the state of Kansas, the Kansas law and its waiver language were sufficiently vague to pose a chilling effect, and the suit was a facial challenge the Court could solve by looking strictly at the legal issues.
The mootness doctrine requires that a case be “concrete and amenable to specific relief.” (Jordan v. Sosa) Here, Kansas never suggested it would permanently abandon enforcement of the anti-boycott law, and therefore a Court order to prevent enforcement would effectively solve Koontz’s problem and other parties in similar situations.
The analysis for a preliminary injunction preventing Kansas from enforcing the anti-boycott law has four factors:
The most important factor was whether Koontz would likely succeed on the merits of the claim. The First Amendment as applied to the states by the Fourteenth Amendment prevents states from retaliating or imposing conditions on contractors “‘on a basis that infringes [their] constitutionally protected freedom of speech.’” (Umbehr, quoting Perry v. Sindermann) Koontz demonstrated that, as required under Pickering v. Board of Education, that the First Amendment protects the conduct at issue. Several U.S. Supreme Court cases, chiefly NAACP v. Claiborne Hardware Co., hold that boycotts are protected conduct under the First Amendment. Boycotts are “inherently expressive” (at p. 21) and are examples of citizens “band[ing] together … and collectively express[ing] dissatisfaction.” (Claiborne at 907) Kansas did not have a sufficiently strong interest to outweigh Koontz’s right to boycott. The Kansas law engaged in possible viewpoint and subject matter discrimination, pursued an impermissible goal of limiting offense to Israeli businesses, and was not narrowly tailored by over-including boycotts in its ban. Accordingly, Koontz was likely to succeed on the merits of the challenge to the anti-boycott law.
Koontz also succeeded on the other factors. Koontz certainly suffered irreparable injury by losing her right to boycott, as the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (Elrod v. Burns, at p. 373) Kansas’s argument that harm to Koontz does not outweigh its own harm was unpersuasive, as the state produced “no evidence that Israeli companies will refuse to do business” in or with the state without the anti-boycott law. (at p. 26) Lastly, a preliminary injunction would not be adverse to the public interest, as the Court “already … concluded that it is highly likely that the Kansas Law is invalid and thus enjoining it will protect a constitutional right, adding that the “Kansas Law [is not] on the same level as an amendment to our Constitution—the very first amendment adopted by our founders and one ratified by three fourths of our states.” (at p. 27)
Because the case was ripe for review, not moot, and Koontz met the requirements for a preliminary injunction, the Court granted the order. The First Amendment protects individuals’ right to boycott as punished by the Kansas law. The Kansas anti-boycott law is likely invalid and unconstitutional, and Kansas may not enforce the law or similar requirements that prevent contractors from boycotting Israel within their freedom of speech.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By granting Koontz’s preliminary judgment, the District Court of Kansas expands expression by preserving the right of state contractors’ to express themselves by boycott in accordance with their right to freedom of speech.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
(Holmes, J., concurring)
(Douglass, J., concurring)
Case significance refers to how influential the case is and how its significance changes over time.
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